                                                                      FILED
                                                                 Dec 02 2019, 5:41 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Crystal G. Rowe                                          Benjamin M. Blatt
Alyssa C.B. Cochran                                      South Bend, Indiana
Kightlinger & Gray, LLP
New Albany, Indiana
Michael E. Brown
Kightlinger & Gray, LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Drendall Law Office, P.C.,                               December 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PL-582
        v.                                               Appeal from the St. Joseph Circuit
                                                         Court
Lucy Mundia,                                             The Honorable John E. Broden,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         71C01-1411-PL-319



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                       Page 1 of 30
                                Case Summary and Issue
[1]   Lucy Mundia sued Drendall Law Office, P.C. (“Drendall”) for legal

      malpractice, alleging Stephen Drendall (“Attorney Drendall”), the attorney she

      hired to represent her in negligence and wrongful death claims against the City

      of South Bend (“City”) and St. Joseph County (“County”), failed to timely file

      a tort claims notice resulting in her claims being barred and her chance to

      pursue a settlement being lost. Summary judgment for Drendall was reversed

      by this court on appeal, see Mundia v. Drendall Law Office, P.C., 77 N.E.3d 846

      (Ind. Ct. App. 2017), trans. denied (“Mundia I”), and the case proceeded to a jury

      trial. Drendall moved for judgment on the evidence after Mundia rested her

      case. The trial court denied the motion, and Drendall rested without presenting

      evidence. The jury returned a verdict in Mundia’s favor in the amount of

      $312,000.00. Drendall then renewed its motion for judgment on the evidence.

      Following briefing and a hearing on the issue, the trial court again denied the

      motion for judgment on the evidence and entered judgment in Mundia’s favor.


[2]   Drendall appeals the judgment, raising the issue of whether the trial court erred

      in denying its motions for judgment on the evidence because Mundia’s evidence

      that she lost the opportunity to pursue a settlement was insufficient to support

      the judgment in her favor. We conclude Mundia’s evidence was not sufficient

      to prove that Drendall’s failure to file a tort claim notice caused her to lose the

      opportunity to settle with the City and/or the County. Therefore, an essential

      element of her legal malpractice claim was not supported by substantial

      evidence, and the trial court erred in denying Drendall’s motion for judgment

      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 2 of 30
      on the evidence and instead entering judgment for Mundia on the jury’s verdict.

      We reverse and remand.



                             Facts and Procedural History
                I. Underlying Facts and Pre-Trial Proceedings
[3]   On May 28, 2013, the City’s Police Department arrested Mundia’s husband,

      Edward Mwuara, for invasion of privacy for violating a protective order. In its

      report, the Police Department noted that Mundia told the officer that she had a

      protective order against Mwuara. The officer “checked [his] in car computer

      and saw there [was] a protective order for [Mundia] against [Mwuara] that

      [was] active.” Exhibits, Volume IV, Plaintiff’s Exhibit 11 at 35. The report did

      not note the protective order number or that there was also a protective order

      against Mwuara for Mundia’s six-year-old daughter, Shirley Mundia.1 Upon

      receiving the police report, the County Prosecutor’s Office searched for a

      protective order in Mwuara’s name but not in the name of Shirley or Mundia,

      the protected individuals. The search returned only one protective order and

      showed it was expired or dismissed. Therefore, the Prosecutor’s Office declined

      to file charges and Mwuara was released from jail. Less than seventy-two hours




      1
       During the summary judgment proceedings, the parties agreed that the police report also contained a
      misspelling of Mwuara’s name. See Mundia I, 77 N.E.3d at 849 n.3.

      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                            Page 3 of 30
      later, Mwuara returned to Mundia’s house and stabbed both Mundia and

      Shirley, resulting in Shirley’s death and severe injuries to Mundia.


[4]   On August 25, 2013, Attorney Drendall sent Mundia a letter noting that he met

      with Mundia’s brother in June to discuss possible claims against the City and

      the County and stating, “You should know there are strict time limits to bring

      such claims. I hope you have hired another lawyer and are in negotiations

      already. If not, please take action immediately. We would be happy to assist

      you in this matter.” Appellant’s Appendix, Volume 2 at 38. Mundia initially

      hired Elton Johnson to represent her, but she became unhappy with Johnson’s

      representation and on October 14, 2013, entered into a contract for Drendall to

      succeed Johnson in representing her in negligence and wrongful death claims

      against the City and the County. The contract specified that the date of the

      incident was June 2, 2013. Because Mundia was pursuing claims against

      governmental entities, the Indiana Tort Claims Act (“ITCA”) required a notice

      of the claim to be filed with those entities within 180 days of the date of her

      loss. Drendall, despite taking over Mundia’s case with approximately forty-five

      days remaining in that period, did not file the required notice by the required

      date. In fact, Drendall did not file a tort claim notice at all.2 Thus, pursuant to




      2
        When Attorney Drendall took over as Mundia’s counsel, he received a notice of lien from Mundia’s former
      counsel stating he had done 108 hours of work on the case at a “reasonable attorney’s fee of $21,600.”
      Exhibits, Vol. IV at 21. When asked at the jury trial why he did not file a tort claim notice when he took over
      the case, Attorney Drendall testified, “Well, some attorney says he does $21,000 worth of work including
      drafting documents I thought it was a reasonable assumption that he had done the basic first thing of sending
      the tort claim notice.” Transcript, Volume II at 47.



      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                               Page 4 of 30
      Indiana Code section 34-13-3-8, Mundia’s claims against the City and the

      County were “barred.”3


[5]   In September 2014, Mundia discovered that Drendall had not filed a tort claim

      notice. On November 18, 2014, Mundia filed a complaint for legal malpractice

      against Drendall. In her complaint, she alleged that Drendall’s failure to file the

      required notice was a breach of Drendall’s duty to represent her. Mundia also

      alleged that Drendall’s breach proximately caused her damages because she had

      lost the ability to bring and settle her negligence and wrongful death claims,

      claims which she valued at over one million dollars.4 Mundia asserted that the

      Prosecutor’s Office had issued a press release acknowledging that it had been

      negligent in performing the protective order search that freed Mwuara from jail,

      and she argued that, given the County’s public admission of fault, it was

      probable the County “would have settled both claims for a significant portion of

      their value at trial.” Appellant’s App., Vol. 2 at 30.5




      3
        Indiana Code section 34-13-3-8 states, “[A] claim against a political subdivision is barred unless notice is
      filed . . . within one hundred eighty (180) days after the loss occurs.”
      4
        Mundia asserted she hired Drendall to represent her in both her personal capacity and her capacity as
      Shirley’s personal representative. Acknowledging the statutory limit on a claim against a governmental
      entity is $700,000, but asserting that “[g]iven the nature of the injury and wrongful death . . ., it is likely that
      [she] could have recovered in full on both her claim and the claim on behalf of her deceased daughter,”
      Mundia claimed her damages were $1,398,000.00 (representing the statutory limit for two claims but “taking
      into account the work [Drendall] did in writing two . . . letters” that were in her file). Appellant’s App., Vol.
      2 at 29-30.
      5
       Mundia also less clearly claimed in her complaint that the City was responsible for her injuries and Shirley’s
      death because one of its police officers prepared an incomplete report. For the most part, however, Mundia
      appears to have abandoned any claim that Drendall’s failure to file the tort claim notice diminished her
      chances of settling with the City, as her complaint itself focused on the probability the County would have


      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                                    Page 5 of 30
[6]   Drendall filed its answer and admitted that Attorney Drendall had entered into

      a contract with Mundia and that, at the time of entering the contract, the 180-

      day statutory period had not passed. Drendall then filed a motion for summary

      judgment, attempting to negate the proximate cause and damages elements of

      Mundia’s legal malpractice claim. The trial court held a summary judgment

      hearing and entered a general order finding that there were no disputed issues of

      material fact and granting Drendall’s motion for summary judgment.


[7]   Mundia appealed the summary judgment decision. We stated the “main point

      of contention” on appeal as “whether Drendall affirmatively showed that its

      failure to file the Tort Claim Notice was not the proximate cause of Mundia’s

      damages.” Mundia I, 77 N.E.3d at 854-55 (footnote omitted).


               Drendall argues Mundia cannot show that the outcome of her
               underlying litigation would have been more favorable but for
               Drendall’s failure to timely file a Tort Claim Notice. However,
               as non-movant on summary judgment, that is not her burden.
               That would be her burden at trial. . . .


               Here, Drendall, as summary judgment movant, had the burden
               to show that it was not the proximate cause of Mundia’s
               damages. Drendall argues that it met its summary judgment




      settled her claims given its “public admissions of fault,” see Appellant’s App., Vol. 2 at 30, her response to
      Drendall’s motion for summary judgment “questioned the appropriateness of Drendall’s initial decision to
      file a negligence claim against the [City] and stated that she ‘never really disputed’ that the City would have
      had immunity under the ITCA[,]” Mundia I, 77 N.E.3d at 851, her primary argument at trial also rested on
      the statement issued by the Prosecutor’s Office acknowledging its error in handling the case, and at the
      hearing on Drendall’s Trial Rule 50 motion, she acknowledged “there’s not much there in terms of the City’s
      liability[,]” Tr., Vol. III at 43. Nonetheless, the City was never dismissed from the complaint and we will
      include the claims against the City in our discussion and decision.

      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                                Page 6 of 30
        burden, contending that Mundia’s damages in this malpractice
        case were the loss of a monetary recovery from a trial on her
        underlying negligence and wrongful death claims and that
        application of the immunity provisions of the ITCA would have
        precluded recovery of such trial damages.


        Mundia, however, contends that, even in the face of application
        of the immunity provisions, her damages included the possibility
        of settlement outside of trial, especially “given the egregious fact
        pattern and Drendall’s own political connections[.]” In other
        words, Mundia argues that, even if the immunity provisions
        applied, the outcome of the underlying litigation would have
        been more favorable—in that she would have had an opportunity
        for settlement negotiations—but for Drendall’s negligence in
        failing to file the Tort Claim Notice. . . .


Id. at 855-56 (record citations and footnote omitted). We concluded Drendall

had not adequately met its initial burden of proving an absence of any genuine

issue of material fact or affirmatively negating at least one element of Mundia’s

malpractice claim, specifically noting that the August 2013 letter from Drendall

to Mundia “shows that settlement could have been a possibility, or at least an

option, in Mundia’s underlying litigation.” Id. at 856.


        Our reversal of the trial court’s grant of summary judgment
        should not be construed as an opinion on the merits of Mundia’s
        case or whether she will ultimately be able to show all the
        elements of her legal malpractice claim. However, because
        Drendall has failed to prove there are no genuine issues of fact
        regarding the issues of proximate cause and damages of
        Mundia’s legal malpractice claim, we reverse the trial court’s
        entry of summary judgment and remand for further proceedings.



Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 7 of 30
      Id. at 856-57.


                    II. Jury Trial and Post-Trial Proceedings
[8]   A jury trial commenced on November 13, 2018. Mundia called Attorney

      Drendall in her case-in-chief. Attorney Drendall conceded he had undertaken

      to represent Mundia before the 180-day statutory notice period had expired and

      that he did not file a notice of tort claim on her behalf. Therefore, as on

      summary judgment, Drendall essentially conceded the elements of duty and

      breach. See Transcript, Volume II at 48-49. He testified that he did not have

      experience negotiating a case against the City or the County. He had no

      particular knowledge of whether the City or County would or would not

      negotiate or settle a case such as this, or whether sympathy was a factor the

      City or County would take into consideration. But when he took the case in

      October 2013, he thought negotiation “[m]ight” get something. Id. at 76.


              I didn’t know all of the facts underlying the incidents that
              happened. . . . I didn’t know then whether the immunity would
              cover the act that [Mundia] brought to me.


              And I thought that there was some chance that the City might
              offer something – not the City, but the County might offer some
              settlement notwithstanding immunity[ b]ecause I had seen the
              press releases where they admitted to dropping the ball in the
              search of the protective orders, and the release of Mr. Mwaura
              [sic] that lead to the death of Shirley Mundia.


              ***



      Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019       Page 8 of 30
               . . . They looked bad. And perhaps, perhaps they would pay
               something that would be a good gesture in the public relations
               sector.


       Id. at 34-35. Attorney Drendall testified that in June of 2014, “things had been

       sitting for a while and [he] wasn’t getting any more cooperation from Mr.

       Johnson[,]” id. at 72, so he reached out to the Prosecutor’s Office “[a]bout

       whether we could get some settlement[,]” id. at 56. It was at that time Attorney

       Drendall learned that the County had not received a tort claim notice in this

       matter and his “heart sank[.]” Id. at 72. Nonetheless, he acknowledged that

       whatever monetary value the case might have would be dependent upon

       whether or not the City and the County had immunity.


[9]    Mundia also called James Groves, who had been designated as Drendall’s

       expert witness. Groves is a local attorney who has knowledge of the ITCA and

       is a “fair expert on defending claims against municipalities[,]” having

       represented both the City and the County for thirty years in cases brought

       against them. Id. at 109. In his time defending the City and the County from

       negligence claims, he did not recall ever having been asked to get involved in

       settlement negotiations based solely on a tort claims notice. See id. at 172.


[10]   Groves noted that Drendall’s failure to file a tort claim notice may have

       breached the standard of care, but it was not the proximate cause of Mundia

       not getting any damages. Id. at 186. Groves testified that “as a general rule if a

       tort claim notice is not filed, there is never going to be any discussion of

       settlement.” Id. at 164. However, “[i]f there is no fundamental claim to begin

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 9 of 30
       with[,] the filing of a tort claim notice, or the lack of filing a tort claim notice is

       academic. Because the case never would have gone anywhere even had a tort

       claim notice been filed.” Id. at 140. Neither the City nor the County has ever

       asked him to offer a settlement in a negligence case without first examining

       their liability, id. at 142,6 and he was certain that “where there are immunity

       defenses [the City and the County] aren’t even going to broach the subject or

       discuss settlement until the outcome of a motion for summary judgment[,]” id.

       at 144. Groves differentiated between a governmental immunity case in which

       a tort claim notice was filed and a case in which one was not: in the first case,

       he would file a summary judgment motion directed to the merits of the claim

       and the government’s defenses; in the latter case, he would file a motion to

       dismiss or summary judgment based “solely upon they didn’t do the

       prerequisite under the [ITCA] by giving a notice of claim” and the merits of the

       claim would likely never be reached. Id. at 146.


[11]   It was Groves’ opinion that even if a tort claim notice and ensuing lawsuit had

       been filed in Mundia’s case, summary judgment would have been granted to

       the City and the County based on immunity and Mundia would never have

       received a settlement offer and would never have received any money. Id. at

       185-86; see also id. at 183 (when asked what his experience is with the City or




       6
         Groves did acknowledge he is not the only attorney employed by the City or the County to defend against
       cases like this, however. The City and the County send cases to attorneys “[b]ased upon what they perceive
       the case to deal with, and what that particular lawyer’s skills are.” Id. at 142-43. No other attorneys used by
       the City or the County to defend tort claims were called as witnesses.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                               Page 10 of 30
       the County making payment on a case when summary judgment has been

       granted on the basis of immunity, Groves responded, “They don’t.”). With

       regard to the specific claims, Mundia asked Groves whether the testimony of

       the officer who arrested Mwuara and prepared the police report that he had no

       discretion over whether to make the police report raised at least a question as to

       whether the City was immune. Groves answered that although making the

       police report is nondiscretionary by police department policy, “[w]hat he puts

       in, or fails to put in the report, is discretionary.” Id. at 115. But “[i]f a notice of

       claim was not filed within [180 days] then you don’t even look at the immunity

       issue [because] technically the claim is barred[ r]egardless of whether there was

       immunity or not.” Id. at 117. Even if a tort claim notice had been filed, it was

       Groves’ opinion that any lawsuit filed against the City would not have

       succeeded “on the basis of Mrs. Mundia, your claim against the City does not

       have legal merit because the City had immunity for this circumstance.” Id. at

       160. As for the County, Groves noted that a prosecutor has total discretion as

       to whether to file criminal charges, and if he had been retained by the County to

       defend Mundia’s claim, he would expect the same result as for the City: her

       claim would not succeed based upon immunity.


[12]   Under questioning by Mundia’s counsel, Groves testified:


               Q: When you act as defense counsel in these types of claims for
               [the County], does the County ever agree to settle claims on the
               basis of public opinion?
               A: Not in my experience.
               Q: In this situation . . ., do you think the County would be open
               to any sort of settlement if the claim had been filed just because
       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019         Page 11 of 30
               of the publicity?
               A: Now, I’m not sure I can answer that question. Because a lot
               of it depends on who’s in office, and what their attitude is at that
               particular time.
               Q: So there is no fixed policy?
               A: But in my experience there have been tragic situations where
               I thought it would be nice to try to take care of these people. But
               you have to remember you’re dealing with public funds. . . . You
               can’t just willy-nilly start making a unilateral decision that you’re
               going to spend public funds to take care of a problem in which
               there is no remedy. . . .
               Q: But would you say that it’s an absolute bar that there would
               be no settlement, or there would be a slim chance that settlement
               might be possible?
               A: I can’t – I don’t know.
               ***
               Q: [I]s there a possibility, or is it an absolute that there will never
               be a settlement?
               A: I’m not – I’m not going to say never, never or ever, ever.
               Anything is possible.
               ***
               Q: So the possibility of settlement is never absolutely barred, is
               that correct?
               A: That’s correct.


       Id. at 121-23; 190-91.


[13]   Of note, Mundia called Michael Dvorak, the County prosecutor at the time of

       this incident. On June 5, 2013, the Prosecutor’s Office issued a public

       statement regarding its review of the decision not to prosecute Mwuara,

       concluding that Mwuara should have been charged with violation of a

       protective order and that the deputy prosecuting attorney “failed to exercise the

       thoroughness expected, particularly in crimes with women and children as

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019          Page 12 of 30
       victims of domestic abuse.” Exhibits, Vol. IV at 8. Neither party asked Dvorak

       if, during his time in office, the Prosecutor’s Office had ever or would ever settle

       a negligence case in which the County had immunity based on the

       egregiousness of the error.


[14]   Finally, Mundia herself testified, noting that Attorney Drendall told her that he

       thought he could get a settlement from the government. Tr., Vol. II at 202. She

       expressed her anguish and frustration at the loss of her daughter, stating, “I

       wish I died on that day. . . . It’s been five years. And every day it’s just like it’s

       last night, like it just happened.” Id. at 207. She pursued this case against

       Drendall because she believed she had lost something of value “by not being

       able to face the County, and the City in this situation[.]” Id. at 205. Attorney

       Drendall said “he’s going to help us. And we waited and . . . realized that all

       [was] not well” with the case in Drendall’s hands. Id.


[15]   At the conclusion of Mundia’s evidence, Drendall moved for judgment on the

       evidence, claiming Mundia had not presented evidence that a settlement would

       have been offered to her and would have been achieved despite the City’s and

       the County’s immunity and therefore, she had failed to prove her case. Id. at

       213. Mundia countered by pointing to Attorney Drendall’s testimony that “he

       thought there was a value there to a settlement” and Mr. Grove’s testimony

       “that he could not say it was impossible that a settlement would have been

       offered.” Id. at 221. The trial court noted that the City and the County had

       immunity from a claim such as this. But pointing to Attorney Drendall’s “very

       candid” testimony that he believed when he took the case that there was some

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019         Page 13 of 30
       chance the County might offer something for public relations reasons and

       Groves’ “grudging[]” testimony that he could “never say never” as to the

       possibility of a settlement, the trial court stated,


               I do think that there is some evidence that the case had some
               settlement value. I admit it’s a greatly discounted settlement
               value because I think, quite candidly, the City and the County
               are holding a lot of cards in the litigation scenario. . . . There is
               evidence submitted in the record as part of plaintiff’s case in chief
               that the case had potentially some settlement value
               notwithstanding the immunity.


       Id. at 228-29. Accordingly, the trial court denied Drendall’s motion. Drendall

       rested without presenting any evidence.


[16]   During discussions between the trial court and counsel settling the jury

       instructions, the trial court stated, “[T]here’s clearly going to be an instruction

       that says that there is immunity for the County, and for the City in the case.”

       Id. at 229. Mundia did not object. The trial court drafted its own instruction

       regarding immunity because there was no applicable pattern instruction. The

       record does not show that Mundia objected to the substance of the instruction.

       During closing arguments, Mundia’s counsel stated, “The Court will shortly

       instruct you that as a matter of law, the City of South Bend and St. Joseph

       County had immunity [from] civil liability for the negligent acts of their

       employees in this matter.” Id. at 245-46. And indeed, the trial court did

       instruct the jury that at all relevant times, Indiana Code chapter 34-13-3 was in

       full force and effect and pursuant to that chapter, the court had “found as a


       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 14 of 30
       matter of law and now so instruct[s] you that both the [City] and the [County]

       possessed legal immunity for their actions or failure to act in this case.

       Therefore, those governmental entities were not liable to [Mundia] for any

       injuries she may have suffered.” Appellant’s App., Vol. 2 at 128 (Jury

       Instruction No. 16). The trial court also instructed the jury, in part, as follows:


               The Plaintiff, Lucy Mundia, sued Drendall Law Office, PC, the
               Defendant.
               Plaintiff claims the Defendant committed legal malpractice in the
               handling of Plaintiff’s case causing her financial damage and
               harm. Specifically, Plaintiff contends that Defendant’s failure to
               file a timely Notice of Tort Claim prevented Plaintiff from
               seeking a settlement despite legal immunity for the governmental
               entities.
               Plaintiff must prove her claims by the greater weight of the
               evidence. Defendant denies Plaintiff’s claims. Defendant claims
               that [the County] and [the City] possessed legal immunity for
               their actions or failure to act. Therefore, Defendant claims his
               failure to file a Notice of Tort Claim did not damage the Plaintiff.
               Defendant is not required to disprove Plaintiff’s claims.


       Id. at 120 (Jury Instruction No. 8). The jury returned a verdict for Mundia in

       amount of $312,000. See id. at 68. Drendall then renewed his motion for

       judgment on the evidence. See id. The trial court withheld entry of judgment,

       directed the parties to file briefs on the issue, and set the matter for hearing.


[17]   At the hearing, Drendall noted that the Court of Appeals opinion in Mundia I

       held that Mundia was entitled to the opportunity to present evidence on the

       issues of proximate cause and damages at a trial but that it would be her burden

       to show that the outcome of her underlying case would have been more

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019          Page 15 of 30
       favorable but for Drendall’s failure to timely file a tort claim notice. Drendall’s

       position was that Mundia had failed to present any evidence to support her

       burden. First, she failed to present evidence that had Drendall timely filed a

       notice of tort claim, the City and the County would have entered into

       negotiations with her and paid her a settlement even though they were not

       liable to her, thus failing to present any evidence of proximate cause. And

       second, she failed to present any evidence supporting a damages amount, thus

       requiring the jury to speculate in reaching its verdict.


[18]   Mundia pointed to the Prosecutor’s Office’s press release acknowledging its

       error, Groves’ testimony that he was only one of several attorneys who

       represented the City and the County and that it was not possible to say a

       settlement would never be offered, and Drendall’s testimony that he thought a

       settlement was possible under the unique facts of this case as evidence

       sufficiently supporting the jury’s determination of proximate cause. She again

       acknowledged that the trial court had found the City and the County were

       immune and had so instructed the jury and that the jury’s verdict was a result of

       the trial court’s instruction that any damages amount should be discounted

       based on immunity.7




       7
        At this hearing, Mundia claimed she had up to four claims worth up to $2,800,000 (two claims against the
       City, two claims against the County, each capped at $700,000) despite only asking for half that in her
       complaint based on two claims against the County. See Appellant’s App., Vol. 2 at 30 (the prayer for relief
       asking the court to “grant [Mundia] damages in the amount of $1,398,000.00”).

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                            Page 16 of 30
[19]   The trial court took the matter under advisement, and on March 4, 2019, issued

       an order that reads, in pertinent part:


               8. The Indiana Court of Appeals remanded this case to the trial
               court for a trial. . . . [Drendall] is correct that at no time did the
               Court of Appeals indicate that [Mundia] would prevail in
               proving the elements of her legal malpractice claim, but only that
               she was entitled to a trial where she would then have the
               opportunity to prove the elements of her claim. Thus, from the
               moment the trial in this cause commenced, the Court’s ears were
               acutely listening to any evidence presented in regard to the
               potential settlement value of [Mundia’s] case. Very early on in
               the trial, [Mundia] called [Attorney] Drendall as a witness . . . .
               In response to questions from [Mundia’s] counsel, the Court
               heard [Attorney] Drendall testify that [he thought there was a
               chance the County might offer a settlement because they looked
               bad and would pay something as a good public relations gesture].


               9. [Drendall] asks this Court to disregard [Attorney] Drendall’s
               testimony. At [the hearing], [Drendall’s] counsel stated that Mr.
               Groves is the designated expert in this case, not [Attorney]
               Drendall. Further, [Drendall] argues that [Attorney] Drendall’s
               testimony needs to be framed in the context that he qualified his
               answers by indicating that he “thought” the County might settle
               or that there was some chance the County might settle. Groves,
               on the other hand, was definitive in his answer stating that no
               governmental entity would settle a case when it so clearly
               possessed legal immunity.


               10. However, the Court cannot simply disregard or ignore the
               testimony of [Attorney] Drendall. Based on the foundation that
               preceded Mr. Groves’ testimony, he possessed far more
               experience in this area of the law than did [Attorney] Drendall.
               However, the jury chose to accept [Attorney] Drendall’s
               testimony that the case had some settlement value. The Court

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019         Page 17 of 30
               cannot simply supplant the jury’s decision as to which witnesses
               to believe. That is the province of the jury. . . .


       Appealed Order at 5-6. The trial court therefore denied Drendall’s motion for

       judgment on the evidence and entered judgment in favor of Mundia in the

       amount awarded by the jury. Drendall now appeals.



                                 Discussion and Decision                          8




                                      I. Standard of Review
                                 A. Judgment on the Evidence
[20]   Indiana Trial Rule 50(A) provides:


               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


       The purpose of a motion for judgment on the evidence is to test the sufficiency

       of the evidence presented by the nonmovant. Overshiner v. Hendricks Reg’l

       Health, 119 N.E.3d 1124, 1131 (Ind. Ct. App. 2019), trans. denied. A motion for

       judgment on the evidence should be granted “only when there is a complete




       88
         We heard oral argument on this case in the Indiana Court of Appeals courtroom on October 23, 2019. We
       thank counsel for their informative and helpful oral presentations.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                       Page 18 of 30
       failure of proof because there is no substantial evidence or reasonable inference

       supporting an essential element of the claim.” Stewart v. Alunday, 53 N.E.3d

       562, 568 (Ind. Ct. App. 2016) (quoting Raess v. Doescher, 883 N.E.2d 790, 793

       (Ind. 2008)). Likewise, judgment on the evidence is proper if the inference

       intended to be proven by the evidence cannot logically be drawn from the

       evidence without undue speculation. Hill v. Rhinehart, 45 N.E.3d 427, 435 (Ind.

       Ct. App. 2015), trans. denied. But if there is evidence that would allow

       reasonable people to differ as to the result, then judgment on the evidence is

       improper. Stewart, 53 N.E.3d at 568.


[21]   Our supreme court has noted that a judgment on the evidence “does not alter

       the critical, invaluable, and constitutionally protected role of the jury in

       Indiana’s system of jurisprudence.” Purcell v. Old Nat’l Bank, 972 N.E.2d 835,

       842 (Ind. 2012). A trial court is not free to engage in weighing evidence or

       judging the credibility of witnesses to grant judgment on the evidence in a case

       where reasonable people may come to competing conclusions, as weighing

       evidence and judging witness credibility has always been within the purview of

       the jury. Id. “That said, it is equally true that judges, at times, may play a role

       in the ultimate determination of cases . . . to ensure the proper administration of

       our laws . . . . Where . . . the plaintiff fails to present sufficient, probative

       evidence as to a necessary element of a claim, the trial judge is within his or her

       discretion to issue judgment on the evidence pursuant to Rule 50(A).” Id.


[22]   Thus, the grant or denial of a Trial Rule 50 motion is within the broad

       discretion of the trial court and will be reversed only for an abuse of discretion.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019           Page 19 of 30
       Hill, 45 N.E.3d at 435. When we review a trial court’s ruling on such a motion,

       we use the same standard as the trial court: we must consider only the evidence

       and reasonable inferences most favorable to the non-moving party. Stewart, 53

       N.E.3d at 568. When, as in this case, the trial court denies the motion and

       declines to intervene, “it is not the province of this Court to do so unless the

       verdict is wholly unwarranted under the law and the evidence.” Ohio Farmers

       Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674, 685 (Ind. Ct. App.

       2012), trans. denied.


                                        B. Legal Malpractice
[23]   To prevail on a legal malpractice claim, the plaintiff must prove: 1)

       employment of the attorney and/or firm (duty); 2) failure of the attorney

       and/or firm to exercise ordinary skill and knowledge (breach); 3) proximate

       cause (causation); and 4) loss to the plaintiff (damages). Gates v. O’Connor, 111

       N.E.3d 215, 223-24 (Ind. Ct. App. 2018), trans. denied. Duty and breach are

       settled in this case. Drendall conceded that he had a duty to Mundia arising

       from the representation agreement and that he breached that duty by failing to

       file a tort claim notice within the required time frame to preserve her right to

       proceed in court. Therefore, only proximate cause and damages are at issue.


[24]   In Roumbos v. Vazanellis, 95 N.E.3d 63, 65 (Ind. 2018), our supreme court

       reiterated that the “trial within a trial” doctrine governs claims of legal

       malpractice. Under this doctrine, to prove proximate cause, a plaintiff alleging

       malpractice must show that the outcome of the underlying litigation would have


       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019       Page 20 of 30
been more favorable had the lawyer not been negligent. Id. at 65-66; see

Devereux v. Love, 30 N.E.3d 754, 763 (Ind. Ct. App. 2015) (“Proximate cause

requires that there be a reasonable connection between the defendant’s allegedly

negligent conduct and the plaintiff’s damages.”), trans. denied. Here, the

underlying litigation would have been negligence and wrongful death claims

against the City and the County. But because the City and the County are

governmental entities, before Mundia could have sued them in court, she was

required to give them notice of her claims within 180 days of her loss. Ind.

Code § 34-13-3-8(a). Failing to give the required notice entitles the

governmental entity to a dismissal. Stone v. Wright, 133 N.E.3d 210, 217 (Ind.

Ct. App. 2019). Governmental entities are generally subject to liability for

tortious conduct but the legislature has granted them immunity for losses

resulting from certain acts, including the performance of a discretionary

function or the failure to enforce a law. Ind. Code § 34-13-3-3(7), (8).

Therefore, even if a timely notice of tort claim had been filed, Mundia’s claim

was subject to an immunity defense. If the City and the County proved that

their conduct fell within one of the exceptions to liability set out in the ITCA,

then they would not be liable for the acts complained of. See Peavler v. Bd. of

Comm’rs of Monroe Cty., 528 N.E.2d 40, 46 (Ind. 1988) (stating the burden of

proving immunity is on the governmental entity seeking its benefit). The trial

court determined as a matter of law that the City and the County did have

immunity for their acts in this case. See Birge v. Town of Linden, 57 N.E.3d 839,

843-44 (Ind. Ct. App. 2016) (stating the determination of whether an act falls

within a category of immunity is a question of law for the court’s
Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 21 of 30
       determination). Mundia conceded as much when she did not object to the trial

       court instructing the jury that the City and the County had immunity. By doing

       so, she also conceded that she would have recovered no damages at a trial. Her

       claim against Drendall was premised on his suggestion that despite immunity,

       the City and/or the County might offer her a settlement based upon their

       admitted errors causing her serious harm.


[25]   Therefore, to prevail on the proximate cause element of her legal malpractice

       claim, Mundia must have presented sufficient evidence that she would have

       recovered damages via settlement with the City and/or the County if Drendall

       had timely filed a notice of tort claim on her behalf despite the City and the

       County having immunity. Proximate cause is primarily a question of fact for

       the jury, but it can be decided as a matter of law if the relevant facts are

       undisputed and lead to only a single inference or conclusion. Gates, 111 N.E.3d

       at 224.


                            II. Evidence of Proximate Cause
[26]   By its express language, Rule 50 acknowledges that a party must do more than

       simply present some evidence in support of her claim; in addition, that evidence

       must also be sufficient evidence. Purcell, 972 N.E.2d at 841; see Ind. Trial Rule

       50(A) (stating the trial court may enter judgment on the evidence “[w]here all

       or some of the issues in a case tried before a jury . . . are not supported by

       sufficient evidence”) (emphasis added). Unlike a motion for summary judgment

       under Indiana Trial Rule 56, the sufficiency test of Indiana Trial Rule 50(A) is


       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019        Page 22 of 30
       not merely whether a conflict of evidence may exist, but rather whether there

       exists probative evidence, substantial enough to create a reasonable inference

       that the nonmovant has met his burden of proof. Purcell, 972 N.E.2d at 841.


[27]   Our supreme court has stated that determining whether evidence was sufficient

       to defeat a motion for judgment on the evidence requires both a quantitative

       and a qualitative analysis. Id. at 840. Specifically, the court explained,


               Evidence fails quantitatively only if it is wholly absent; that is,
               only if there is no evidence to support the conclusion. If some
               evidence exists, a court must then proceed to the qualitative
               analysis to determine whether the evidence is substantial enough
               to support a reasonable inference in favor of the non-moving
               party.


               Qualitatively, . . . [evidence] fails when it cannot be said, with
               reason, that the intended inference may logically be drawn
               therefrom; and this may occur either because of an absence of
               credibility of a witness or because the intended inference may not
               be drawn therefrom without undue speculation. The use of such
               words as “substantial” and “probative” are useful in determining
               whether evidence is sufficient under the qualitative analysis.
               Ultimately, the sufficiency analysis comes down to one word:
               “reasonable.”


       Id. (citations and some quotation marks omitted).


[28]   Drendall argues that Mundia did not present sufficient evidence, either

       quantitatively or qualitatively, that her case had a settlement value that was lost




       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019      Page 23 of 30
       by Drendall’s failure to timely file a tort claim notice on her behalf, nor did she

       present sufficient evidence of what that settlement value would have been.9


                                       A. Quantitative Evidence
[29]   The conclusion Mundia wanted the jury to reach was that it was more likely

       than not that she would have received a settlement from the City or the County

       had Drendall filed a timely notice of tort claim. Her evidence fails the

       quantitative test only if there is no evidence to support this conclusion. See

       Purcell, 972 N.E.2d at 840. Drendall argues Mundia presented “no direct or

       circumstantial evidence that the City and/or County had offered, or were

       planning to offer, a settlement despite their immunities[,]” and contends she

       therefore has failed to provide any evidence that Drendall’s breach caused her to

       lose the opportunity to settle. Brief of Appellant at 31.


[30]   The evidence Mundia presented included her own testimony that Attorney

       Drendall told her he thought she could get a settlement; Attorney Drendall’s

       testimony that, based on the statement by the Prosecutor’s Office




       9
         Drendall first claims that Mundia’s burden at trial was to prove that a case against the City and/or the
       County was “winnable,” relying on language used by the trial court and quoted by this court in Mundia I. See
       77 N.E.3d at 855 (quoting the trial court saying Mundia had to prove that the case underlying the legal
       malpractice case was winnable and then stating, “[w]hile this would be Mundia’s burden at trial, it is not her
       burden on summary judgment”). Because it is undisputed that both the City and the County were statutorily
       immune from liability, Drendall argues that Mundia’s claims against the City and the County were not
       “winnable” and therefore, her claim against Drendall for failing to procure a “win” fails as a matter of law.
       But Mundia never claimed she could outright win a case against the City or the County. The appropriate
       standard, as stated above, is that the outcome of the litigation would have been more favorable absent the
       attorney’s negligence and in this case, a settlement would have been a more favorable outcome than receiving
       nothing.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                             Page 24 of 30
       acknowledging it erred in handling Mwuara’s arrest, he thought there was

       “some chance” the County “might offer some settlement” because they “looked

       bad[,]” Tr., Vol. II at 35; Groves’ testimony that if a tort claim notice is not

       filed, “there is never going to be any discussion of settlement[,]” id. at 164; and

       Groves’ concession that “the possibility of settlement is never absolutely

       barred,” id. at 190-91. We agree with Mundia that she did present some

       evidence supporting her desired conclusion that Drendall’s failure to file the tort

       claim notice proximately caused the loss of opportunity to settle. There was

       evidence that without a tort claim notice, the City and the County would never

       discuss settlement; Attorney Drendall thought when he undertook to represent

       Mundia that there was a possibility for settlement; and the only City/County

       attorney who testified conceded he could not say the City or the County had

       never or would never settle a claim for which they had immunity although they

       had not done so in cases he handled for them. This is some evidence

       supporting Mundia’s assertion that had Drendall filed a tort claim notice, the

       City and/or the County might have entertained a settlement.


                                      B. Qualitative Evidence
[31]   We proceed then to the qualitative analysis to determine whether the evidence

       Mundia presented is substantial enough to support a reasonable inference in her

       favor. See Purcell, 972 N.E.2d at 840. The crux of the qualitative analysis under

       Trial Rule 50(A) is whether the inference that the plaintiff’s allegations are true

       may be drawn from the evidence presented without undue speculation. Id. at

       841.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019       Page 25 of 30
[32]   Proof of proximate cause requires evidence of a reasonable connection between

       the defendant’s conduct and the plaintiff’s damages. Clary v. Lite Machines

       Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006). “When the issue of

       [proximate] cause is not within the understanding of a lay person, testimony of

       an expert witness on the issue is necessary.” Singh v. Lyday, 889 N.E.2d 342,

       357 (Ind. Ct. App. 2008), trans. denied. Drendall contends, and we agree, that

       expert testimony was required here because the issue of “whether an immune

       governmental entity would have paid taxpayer money to settle Mundia’s claim

       had a tort claim notice been timely filed” is not within the understanding of a

       layperson. Br. of Appellant at 31. The only expert testimony, given by Groves,

       was that Drendall’s breach was not the proximate cause of Mundia’s damages

       because neither the City nor the County would have paid to settle a claim when

       they were statutorily immune whether or not a tort claim notice had been filed.

       In denying Drendall’s motion for judgment on the evidence, the trial court

       acknowledged that Groves “possessed far more experience in this area” than

       Attorney Drendall and he “definitive[ly]” stated no governmental entity would

       settle a case when it “so clearly” possessed immunity. Appealed Order at 6.

       The trial court nonetheless deferred to the jury’s decision to believe Attorney

       Drendall’s testimony “that the case had some settlement value.” Id. However,

       Attorney Drendall did not testify that the case had settlement value; he testified

       that he thought the case might have settlement value before he had all the facts

       about the case. See Tr., Vol. II at 76.




       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019      Page 26 of 30
[33]   At the close of Mundia’s case-in-chief, then, the expert testimony showed

       Drendall was not the proximate cause of Mundia’s damages and she had

       presented no evidence showing that the City or the County had ever or would

       ever settle a case in which it had immunity. The Prosecutor’s Office accepted

       responsibility for the circumstances that led to Mwuara’s immediate release

       from jail, and yet it never reached out to Mundia to broach the subject of

       compensating her for their error. Groves testified he was but one attorney used

       by the City and the County for tort claims and yet no other attorneys who did

       work for the City or the County were called to testify to their experiences with

       settlement in immunity cases. Groves also testified that expenditure of public

       funds to settle cases would be a matter of public record, id. at 184-85, and yet

       Mundia presented no evidence of the City or the County ever using funds in

       such a way. The only evidence that supported a chance of a settlement was

       generalized and ambiguous – Drendall admitting he had no particular

       knowledge when it came to negotiating with a governmental entity but thinking

       the government “might” offer a settlement under the circumstances of this case

       and Groves “grudgingly” admitting he could never say the City or the County

       would never settle under these circumstances. Id. at 228-29. The intended

       inference that Mundia would have received a settlement if Drendall had filed a

       tort claim notice could not logically be drawn from this testimony without

       undue speculation on the part of the jury.


[34]   Attorney Drendall acknowledged the value of this case depended on whether or

       not the City and the County had immunity. See id. at 77. And in that regard,


       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019      Page 27 of 30
       Groves opined, the trial court found as a matter of law, and importantly,

       Mundia’s counsel conceded, that the City and the County both had immunity

       for the acts on which Mundia’s claims against them would have been based.

       Had Mundia not conceded the issue of immunity, she could have argued that

       immunity was an open question and Drendall’s failure to file the tort claim

       notice foreclosed her opportunity to argue immunity to a court, which in turn

       might have encouraged the City or the County to settle on the chance the court

       found their actions were not entitled to immunity. But once she conceded

       immunity, her only argument for a possibility of settlement was essentially that

       the City and the County would offer a settlement gratuitously. And Groves’

       testimony refuted that would ever happen.


[35]   Mundia’s burden was to present sufficient evidence to show it was more probable

       than not that she would have achieved a better result if Drendall had filed the tort

       claim notice. See Roumbos, 95 N.E.3d at 65-66. Although Mundia’s evidence

       suggests the possibility of a settlement was not completely foreclosed, there was

       no substantial evidence or reasonable inference from the evidence that it was

       probable she would have obtained a settlement under these circumstances. In

       other words, Mundia’s evidence may have proved that she could have gotten a

       settlement, but it did not prove that she would have. We therefore agree with

       Drendall that Mundia’s evidence of proximate cause fails the qualitative test.

       See Court View Centre, L.L.C. v. Witt, 753 N.E.2d 75, 81 (Ind. Ct. App. 2001) (“If

       evidence fails to create a reasonable inference of an ultimate fact, but merely

       leaves the possibility of its existence open for surmise, conjecture or

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019       Page 28 of 30
       speculation, then there is no evidence of probative value as to that ultimate fact

       and a Trial Rule 50 motion should be granted.”).10


[36]   Although the facts of this case are undeniably tragic and Mundia has

       unquestionably suffered harm, the law and the evidence in this case do not

       support her claim for relief. Mundia has failed to present sufficient, probative

       evidence on a necessary element of her legal malpractice claim, and therefore

       the jury’s verdict in her favor “is wholly unwarranted[.]” Ohio Farmers Ins. Co.,

       970 N.E.2d at 685. Accordingly, the trial court abused its discretion in denying

       Drendall’s Trial Rule 50(A) motion for judgment on the evidence.



                                                  Conclusion
[37]   Viewing Mundia’s evidence and the reasonable inferences therefrom in the light

       most favorable to her as the non-moving party, we conclude the jury’s verdict

       was clearly erroneous because Mundia did not present substantial evidence

       supporting the proximate cause element of her claim for legal malpractice. The

       trial court abused its discretion in denying Drendall’s motion for judgment on

       the evidence. We therefore reverse and remand for the trial court to vacate the

       jury verdict and enter judgment for Drendall.




       10
         Because we have held there was not sufficient evidence on the issue of proximate cause, Mundia’s claim
       for legal malpractice fails, and we need not address the issue of whether she presented sufficient evidence on
       the issue of damages.

       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019                               Page 29 of 30
[38]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-582 | December 2, 2019   Page 30 of 30
