MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jun 26 2017, 8:48 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




APPELLANT PRO SE
Brian W. Andert
New Castle, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian W. Andert,                                         June 26, 2017
Appellant,                                               Court of Appeals Case No.
                                                         33A04-1609-SC-2019
        v.                                               Appeal from the Henry Circuit
                                                         Court
Cynthia M. Carter,                                       The Honorable Bob A. Witham,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         33C03-1602-SC-176



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017        Page 1 of 6
                                               Case Summary
[1]   Brian Andert, pro se, appeals a judgment issued by the small claims division of
                                                                                                 1
      the Henry County Circuit Court (hereinafter, “small claims court”) in favor of

      Cynthia Carter. We affirm.


                                                        Issue
[2]   The sole issue Andert raises is whether the small claims court properly found

      that he failed to meet his burden of proof regarding his legal malpractice claim

      against Carter.


                                                       Facts
[3]   In 2011, Andert was convicted by a jury of three counts of Class B felony sexual

      misconduct with a minor and was sentenced to ten years imprisonment. He

      appealed, and in 2012, this court issued an opinion affirming his convictions.

      Andert v. State, No. 71A05-1109-CR-509 (Ind. Ct. App. May 17, 2012).


[4]   In 2013, Andert hired attorney Carter to review his criminal case for issues that

      could be raised in a petition for post-conviction relief. Per an August 13, 2013

      letter that Carter wrote to Andert, the fee she charged to “check out the

      appellate record from the Indiana Court of Appeals, review it, research the case

      law, and obtain and review [Andert’s] client files” would be $1,500.00. App.




      1
       Small claims matters are adjudicated in the small claims division of the Henry Circuit Court No. 3. See Ind.
      Code § 33-33-33-8.

      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017              Page 2 of 6
      Vol. II p. 9. The letter provided: “That fee for reviewing the materials includes

      sending you my written opinion concerning the case and does have to be paid

      prior to my beginning the work. If there are good issues, then the $1500 would

      be pro-rated toward the fee for litigating the case.” Id. Carter received the fee

      from Andert on September 9, 2013, and she began obtaining the case files and

      reviewing them. In a letter dated October 15, 2013, Carter informed Andert

      that he owed an additional $40.00 fee to cover the costs the law firm that

      represented him at trial had charged to copy his case file. After reviewing

      Andert’s case files, Carter wrote an opinion letter to Andert, dated March 4,

      2014, explaining her analysis of Andert’s case and declining to represent him.


[5]   Andert wanted to obtain DVDs, CDs, and other audio recordings that he

      believed were part of his criminal case file and would be beneficial to a pursuit

      of post-conviction relief. It appears that Carter was unable to provide Andert

      with the items because they were not a part of the case files sent by the

      attorneys who previously represented Andert. Andert filed in the small claims

      court a notice of claim for a refund of the $1,540.00 he paid to Carter,

      essentially alleging legal malpractice and arguing that the terms for the payment

      of the fee were not met because Carter failed to provide Andert with the DVDs,

      CDs, and other audio recordings he requested. On August 1, 2016, the small

      claims court issued an order determining that Andert “failed to meet his burden

      of proof in [his] case and therefore . . . shall take nothing on his claim.” Id. at

      53. Andert now appeals.




      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017   Page 3 of 6
                                                   Analysis
[6]   The small claims court determined that Andert failed to meet his burden of

      proof regarding his claim against Carter. Because the small claims court’s

      decision was not in Andert’s favor, he is appealing from a negative judgment.

      On appeal, we will not reverse a negative judgment unless it is contrary to law.

      LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind. Ct. App.

      2004). To determine whether the judgment is contrary to law, we consider the

      evidence in the light most favorable to the appellee, together with all the

      reasonable inferences to be drawn therefrom. Id. A judgment will be reversed

      only if the evidence leads to but one conclusion and the trial court reached the

      opposite conclusion. Id.


[7]   When a trial court enters a general judgment, as the small claims court did here,

      the judgment will be affirmed if it can be sustained upon any legal theory

      consistent with the evidence. Helmuth v. Distance Learning Sys. Ind., Inc., 837

      N.E.2d 1085, 1089 (Ind. Ct. App. 2005). “In making this determination, we

      neither reweigh the evidence nor judge the credibility of witnesses.” Id.

      “Rather, we consider only the evidence most favorable to the judgment together

      with all reasonable inferences to be drawn therefrom.” Id.


[8]   Carter did not file a response brief. Where an appellee fails to file a brief, we do

      not undertake to develop arguments on that party’s behalf; rather, we may

      reverse upon a prima facie showing of reversible error. Morton v. Ivacic, 898




      Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017   Page 4 of 6
       N.E.2d 1196, 1199 (Ind. 2008). Prima facie error is error “at first sight, on first

       appearance, or on the face [of] it.” Id.


[9]    Andert argues that the small claims court erred in determining that he failed to

       meet the burden of proof on his claim because he established that he and Carter

       had a contract, that Carter had “a contractual obligation,” and that Carter

       “failed to meet that contractual obligation.” Appellant’s Br. p. 5. He contends

       that Carter’s failure to secure the DVDs, CDs, and other audio recordings that

       he believed were contained in his case file was due to incompetence and lack of

       diligence. Andert’s argument, however, essentially is a claim for legal

       malpractice. See Alvarado v. Nagy, 819 N.E.2d 520, 525 (Ind. Ct. App. 2004)

       (holding that plaintiff’s complaint stated a claim for legal malpractice). To

       establish legal malpractice, Andert was required to demonstrate that he: 1)

       employed Carter (the duty), 2) who failed to exercise ordinary skill and

       knowledge (the breach), 3) proximately causing (causation), 4) damage to him

       (damages). See Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996). “In

       Indiana, an attorney is generally required to exercise ordinary skill and

       knowledge.” Clary v. Lite Machines Corp., 850 N.E.2d 423, 432 (Ind. Ct. App.

       2006) (internal quotations, citations, and footnotes omitted). “[T]o succeed in a

       legal malpractice claim, the plaintiff must prove, among other things, that the

       attorney breached that duty.” Id. The small claims court found that Andert did

       not sustain his burden of proof on his legal malpractice claim. We agree.


[10]   Andert hired Carter to review his criminal case for issues that could be raised in

       a post-conviction relief petition. Carter informed Andert that the fee for her

       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017   Page 5 of 6
       services was $1,500.00 and that the fee included Carter preparing a written

       opinion letter on the case. Andert paid the fee, and Carter obtained Andert’s

       case files, reviewed the case files and the record from Andert’s direct appeal,

       and wrote an opinion letter to Andert that explained her analysis of his case.

       The forty-dollar additional charge was for copy fees to obtain his case file.

       When Carter received Andert’s case files, the DVDs, CDs, and other audio

       recordings were not included.


[11]   Carter provided Andert with the services promised for the fee charged. Andert

       has not shown that Carter breached her duty to exercise ordinary skill and

       knowledge in performing her services. The small claims court determined that

       Andert failed to carry his burden of proof on his legal malpractice claim. It did

       not err in making its determination.


                                                 Conclusion
[12]   For the foregoing reasons, the judgment of the small claims court is affirmed.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1609-SC-2019 | June 26, 2017   Page 6 of 6
