                                                                           FILED
                                                                       Sep 13 2018, 8:36 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
Kevin W. Betz                                              Michael E. O’Neill
Sandra L. Blevins                                          Marian C. Drenth
Betz + Blevins                                             O’Neill McFadden & Willett, LLP
Indianapolis, Indiana                                      Schererville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Whitney A. Gates, Jonathan W.                              September 13, 2018
Gates, and Jacob A. Gates,                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                     18A-CT-58
                                                           Appeal from the Monroe Circuit
        v.                                                 Court
                                                           The Honorable Heather A. Welch,
Joseph D. O’Connor and Bunger                              Special Judge
& Robertson, LLP,                                          Trial Court Cause No.
Appellees-Defendants.                                      53C01-1405-CT-877




Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                           Page 1 of 32
                                               Case Summary
[1]   Whitney A. Gates, Jonathan W. Gates, and Jacob A. Gates (hereinafter

      “Whitney”)1 appeal the trial court’s entry of summary judgment in favor of

      attorney Joseph D. O’Connor and Bunger & Robertson, LLP (“the law firm”)2

      on Whitney’s claim for legal malpractice. Whitney’s complaint against

      O’Connor alleged that O’Connor negligently failed to pursue and obtain a

      dissolution of marriage between his father, Jerry Gates, and Jerry’s wife, Susan,

      prior to Jerry’s death, which allegedly resulted in a substantial loss of

      inheritance to Whitney. We note that while this case is nominally about lawyer

      malpractice, namely, whether O’Connor’s purported breach of his duty of care

      proximately caused Whitney’s loss of inheritance, it is really about the “trial

      within a trial,” that is, the law that applied to the underlying dissolution of

      marriage proceedings. After a thorough review of such law as well as the

      designated evidence, we conclude that, as counsel for Jerry while Whitney was

      acting as Jerry’s guardian, there was nothing O’Connor could have done to

      compel a dissolution of Jerry’s marriage. Thus, as did the trial court, we

      conclude that O’Connor has negated the element of proximate cause in the




      1
        Although Jerry’s grandsons Jonathan and Jacob are also named as appellants, Jerry’s son Whitney, acting
      as Jerry’s guardian, was the relevant actor during the underlying dissolution case, as well as during the
      instant legal malpractice action. Therefore, we refer to Whitney alone throughout this opinion.
      2
        Although the law firm is a party on appeal and filed a joint appellees’ brief with O’Connor, O’Connor was
      the relevant actor during the underlying dissolution and was the primary defendant in the legal malpractice
      action. Therefore, we refer mainly to O’Connor throughout this opinion.

      Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                            Page 2 of 32
      legal malpractice action and is entitled to summary judgment. Accordingly, we

      affirm.3


                                    Facts and Procedural History
[2]   Jerry was a successful Bloomington real estate developer and businessman with

      an interest in various closely held corporations and limited liability companies.

      Most of his assets were acquired after he married Susan in March 1986. Before

      the marriage, Jerry and Susan executed a prenuptial agreement. Among other

      things, the agreement provided that, in the event of a dissolution of the

      marriage, Susan would receive her separate property, one-half of all jointly held

      property, and a cash payment based upon the duration of the marriage prior to

      the commencement of a dissolution. The agreement also contained provisions

      limiting Susan’s inheritance from Jerry’s estate based on the duration of the

      marriage provided that they were married at the time of his death. Jerry

      executed a will with corresponding provisions.


      3
        We note that Whitney has filed a separate motion for recusal of one of our colleagues from participating on
      the panel for this appeal. Since that judge was never a member of this panel, we deny his motion as moot by
      separate order issued contemporaneously with this opinion. Cases are randomly assigned to judicial panels
      on the Court of Appeals and the Indiana Code of Judicial Conduct specifically provides that “[a] judge shall
      disqualify himself ... in any proceeding in which the judge’s impartiality might reasonably be questioned ....”
      Ind. Judicial Conduct Rule 2.11(A). This obligation is enforced by the individual judge against him or
      herself. Mathews v. State, 64 N.E.3d 1250, 1255 (Ind. Ct. App. 2016), trans. denied (2017); see Indiana Gas Co.
      v. Indiana Fin. Auth., 992 N.E.2d 678, 679 (Ind. 2013) (noting that the test for recusal is “whether an objective
      person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s
      impartiality”). In addition to denying the motion as moot, we disapprove of the condescending tone of the
      motion as well as the suggestion that our colleague would not have understood the obligation to recuse if he
      or she believed there existed a reasonable basis for doubting his or her impartiality. Although Whitney’s
      attorneys specifically blame him for the motion to recuse, we remind counsel that “[w]e expect those who
      have been granted the special privilege of admission to the bar to bring reasonable objectivity to their
      statements about judicial officers” and “to rise above the raw emotions and accusations that impede rather
      than enhance the judicial process.” In re Dixon, 994 N.E.2d 1129, 1136 (Ind. 2013) (citing Ind. Professional
      Conduct Rule 8.2(a)).

      Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                                Page 3 of 32
[3]   In March 2007 Jerry suffered an ischemic stroke, which deprived his brain of an

      adequate blood supply. This was the first of three strokes that eventually led to

      Jerry’s death six years later in March 2013. Jerry had a good physical recovery

      from his first stroke, but the stroke resulted in cognitive and personality changes

      and negatively affected his attitude, demeanor, short-term memory, and

      judgment.


[4]   Notwithstanding the first stroke, Jerry remained competent and retained his

      testamentary capacity, and, in October 2007, he executed another will and

      established a revocable trust. This second will and the trust provided Susan

      with a larger inheritance than under Jerry’s 1986 will and the prenuptial

      agreement as long as Jerry and Susan were still married at the time of Jerry’s

      death. Jerry also named Susan as his attorney-in-fact under a general durable

      power of attorney over all his personal, intangible, and real property. The

      power of attorney was a stand-by instrument; it would take effect only if Jerry

      were declared incapacitated by two licensed physicians unrelated to Jerry or his

      family. The instrument named Jerry’s son, Whitney, and others as successor

      attorneys-in-fact in the event Susan was unable or unwilling to serve.


[5]   In August 2008, after Jerry was diagnosed with hypomania, one of his

      physicians signed an affidavit stating that Jerry was incapacitated and unable to

      effectively manage his property or financial affairs. On August 15, 2008,

      Whitney filed his petition for the appointment of a guardian over Jerry’s person

      and estate under cause number 53C07-0808-GU-98 (the “guardianship”). On

      that same date, Susan filed a verified petition for dissolution of marriage under

      Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018      Page 4 of 32
      cause number 53C07-0808-DR-491 (the “dissolution”) after more than twenty-

      two years of marriage.


[6]   Jerry resisted the appointment of a guardian, and in January 2009 the parties

      entered into a private settlement agreement, which was approved by the

      guardianship court. The guardianship was then dismissed without prejudice.

      However, six months later, in June 2009, Whitney filed a motion to set aside

      the dismissal and to reinstate the cause of action, to which Jerry objected. In

      July 2009, the guardianship court set aside its prior dismissal and reinstated

      Whitney’s guardianship petition.


[7]   Also in June 2009, Jerry’s then-attorney Andrew Z. Soshnick informed

      Whitney that Jerry was revoking Whitney’s authority as a successor attorney-

      in-fact under the “alleged General Durable Power of Attorney,” Appellees’

      App. Vol. 4 at 92, and, two days later, pursuant to Indiana Code Section 30-5-3-

      5,4 Whitney filed an action entitled “Verified Petition for Judicial Interpretation

      of a Power of Attorney Document and for Instructions to Attorney-in-Fact”

      under cause number 53C07-0906-MI-1464. Among other things, Whitney

      requested that the court find that Jerry lacked capacity to control or revoke the

      power of attorney, find that Whitney is a successor attorney-in-fact, and instruct

      Whitney as to the powers he may exercise under the power of attorney.5 All



      4
        That statute provides in relevant part as follows: “Upon petition by an interested person, the court may
      construe a power of attorney and instruct the attorney in fact if the court finds that the principal lacks the
      capacity to control or revoke the power of attorney.” Ind. Code § 30-5-3-5.
      5
          Susan had renounced her appointment as Jerry’s attorney-in-fact.

      Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                                  Page 5 of 32
      three actions—the guardianship, the dissolution, and the petition for judicial

      interpretation of the power of attorney—were then pending simultaneously

      before Special Judge Nardi in the Monroe Circuit Court.


[8]   After multiple and lengthy guardianship hearings, almost three years after

      Whitney had first filed his petition for appointment of guardian, in June 2011

      the guardianship court entered its twenty-seven-page order with detailed

      findings of facts, conclusions, and judgment, which adjudicated Jerry to be

      incapacitated and determined that a guardian for his person and estate should

      be appointed. The court concluded that Whitney was a “good candidate” to be

      appointed guardian of Jerry’s person and estate, recognized that in his power of

      attorney Jerry had requested that Whitney be appointed as his guardian, and

      stated that “the Court is obligated to honor that request if at all possible.”

      Appellants’ App. Vol. 3 at 84.


[9]   At the same time, the court appointed attorney Robert Ralston to serve as co-

      guardian with Whitney over Jerry’s estate “until the dissolution matter is

      completed.” Id. The court had previously appointed Ralston as receiver of

      Jerry’s personal financial affairs. Finding that Whitney “obviously has a close

      relationship with his stepmother,” Susan, the order further provided that

      “Attorney Ralston … shall have the discretion to make all decisions regarding

      the dissolution matter and shall act in [Jerry’s] best fiduciary interest.” Id. at

      85.




      Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018        Page 6 of 32
[10]   Some ten months later, in March 2012, the co-guardians filed their “Petition to

       Retain Legal Counsel for Pending Dissolution Matter,” and the guardianship

       court issued its order authorizing the co-guardians to retain O’Connor to

       represent Jerry in the dissolution of marriage proceeding.6 The order further

       stated that “[c]o-guardian Robert Ralston shall have the authority to give

       direction to attorney Joseph O’Connor and to make decisions concerning the

       dissolution matter, including strategies for resolution or trial.” Id. at 164.


[11]   On March 29, 2012, Whitney and Ralston retained O’Connor to represent Jerry

       in the dissolution. Shortly thereafter, on May 7, one of O’Connor’s associates

       at the law firm prepared a memorandum for him that evaluated “the division of

       Jerry Gates’ estate in the event he died before or after a [dissolution] could be

       finalized. The [m]emorandum concluded that Susan Gates would likely receive

       a larger inheritance as Jerry’s spouse than she would receive as his former

       spouse.” Id. at 169. O’Connor forwarded the memorandum to Whitney.


[12]   Thereafter, O’Connor met with Whitney and Ralston “to discuss the

       [dissolution] and potential property settlement.” Id. at 168. Pursuant to those

       meetings, O’Connor conveyed a proposed settlement to Susan’s counsel, Ryan

       Cassman, on May 29. That proposed settlement offer was “limited by the 1986

       Prenuptial Agreement,” in accordance with “the Guardians’ requests.” Id. at




       6
         O’Connor was the fourth attorney to represent Jerry in the dissolution action. In addition to attorney
       Soshnick, attorneys Jamie L. Zibrowski and Paul D. Baugh also had each appeared on Jerry’s behalf in the
       dissolution action prior to O’Connor, although Jerry was without representation for more than three months
       immediately preceding O’Connor’s retention.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                           Page 7 of 32
       170. O’Connor followed up with Cassman on June 20 and requested a

       response. O’Connor further requested that the two sides schedule mediation.


[13]   O’Connor and Cassman spoke by phone in early July. Cassman informed

       O’Connor that Susan “was desirous of completing the dissolution process” and

       agreed “to proceed with mediation.” Id at 168. O’Connor and Cassman

       continued to be in contact throughout July. On August 15, O’Connor asked

       Cassman for a response to the proposed settlement offer and to proposed

       mediation details, among other things. Susan did not respond to the proposals.


[14]   Instead, on September 20, 2012, Susan moved to dismiss her petition for

       dissolution of marriage after it had been pending for more than four years. On

       September 24, the dissolution court issued its order dismissing Susan’s petition

       for dissolution. On that same date, at Whitney’s direction, O’Connor filed a

       counter petition for dissolution of marriage for Whitney, as Jerry’s guardian.

       Cassman immediately emailed O'Connor stating that he did not believe that

       Whitney had authority to seek a dissolution on Jerry’s behalf, that Susan

       wished to remain married to Jerry, and that Susan believed Whitney was using

       his position as guardian to push to dissolve the marriage in order to increase his

       own inheritance. Two days later, O’Connor advised Whitney that there was no

       specific legal authority allowing a guardian to pursue dissolution of marriage on

       behalf of his ward. Nonetheless, Whitney desired to proceed. Accordingly, on

       October 1, O’Connor filed a motion to set aside the court’s order granting

       Susan’s motion to dismiss on the grounds that the dissolution statute provided a

       five-day grace period for the opposing party, in this case, Jerry, by his duly

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018      Page 8 of 32
       appointed guardian Whitney, to file a counter petition for dissolution before an

       action could be dismissed. See Ind. Code § 31-15-2-12. Susan responded with

       an Indiana Trial Rule 12(B)(6) motion to dismiss Whitney’s counter petition.

       However, the trial court granted Whitney’s motion to set aside and issued an

       order setting aside its prior order granting Susan’s motion to dismiss her

       petition. Then, after a hearing on November 28, the court issued its order

       denying Susan’s motion to dismiss Whitney’s counter petition.


[15]   Susan did not seek an interlocutory appeal of the dissolution court’s orders at

       this point. O’Connor and Cassman re-engaged in settlement discussions, and,

       in January 2013, the parties agreed to attend mediation in April. Although the

       parties had agreed to mediation, Cassman made clear to O’Connor “his

       intention to file a summary judgment motion and/or appeal if necessary” on

       the trial court’s rulings and the legitimacy of Whitney’s counter petition for

       dissolution of marriage. Appellants’ App. Vol. 2 at 189, 233-34. The parties

       then designated a mediator and scheduled mediation for April 12.


[16]   On March 12, one month before the scheduled mediation, Jerry suffered his

       second stroke. The next day, O’Connor moved for an emergency bifurcation of

       the dissolution proceedings requesting the court to immediately issue a decree

       of dissolution with distribution of the marital estate to occur on a later date.

       The dissolution court held an emergency hearing on the motion the following

       day, at which Cassman objected to O’Connor’s bifurcation proposal. Rather

       than rule on the emergency petition, the trial court set another hearing on the

       request to bifurcate for April 9. However, on March 18, 2013, Jerry died at age

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 9 of 32
       seventy-eight. Consequently, O’Connor moved to dismiss the dissolution as

       moot, which the court granted.


[17]   On May 3, 2014, Whitney filed his complaint for damages against O’Connor

       and the law firm, asserting claims of legal malpractice, gross negligence, breach

       of contract, and breach of fiduciary duty. In particular, Whitney alleged that

       O’Connor had committed legal malpractice when O’Connor did not secure a

       decree of marriage dissolution prior to Jerry’s death, which resulted in Whitney

       and his heirs receiving a lesser share of Jerry’s estate than they would have

       received had the marriage been dissolved.


[18]   O’Connor moved for summary judgment and designated the affidavit of

       Evansville family law attorney Kelly Lonnberg, who stated that “O’Connor …

       diligently pursued a resolution and final divorce settlement” of the marital

       estate, which involved “the division of multiple complex assets, including

       properties”; that “O’Connor … complied with the standard of care applicable to

       attorneys engaged in the practice of Family Law during [his] representation of

       Jerry Gates at all times”; and that nothing that O’Connor “did or allegedly

       failed to do in the course of [his] representation of Jerry Gates, through the

       Guardianship, caused monetary damage to [Whitney], or caused [Whitney’s]

       inheritance in Jerry Gates’ estate to be drastically reduced as claimed ….”

       Appellants’ App. Vol. 3 at 20-21. Lonnberg further stated that, “[h]ad

       [Cassman] filed a motion for summary judgment on the [validity of the] counter

       petition for dissolution filed by Whitney Gates, as Guardian of Jerry

       Gates, . . . Susan Gates would have succeeded” because “[i]n 2012 and 2013,

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018     Page 10 of 32
       Indiana law did not provide a Guardian legal authority to file a dissolution

       action on behalf of [his] Ward.” Id. at 23. In light of that assessment,

       Lonnberg stated that “[t]he dissolution … could not have been finalized after

       Susan Gates dismissed her claim for dissolution due to the Guardianship that

       had already been established before [O’Connor’s] involvement as counsel.” Id.

       at 24.


[19]   In response to O’Connor’s motion for summary judgment, Whitney designated

       the deposition and supplemental affidavit of Indianapolis family law attorney

       M. Kent Newton. In his deposition, Newton testified that, in 2012 and 2013,

       there was “ambiguity” in Indiana’s case law on the authority, or lack thereof, of

       a guardian to file a counter petition for dissolution on behalf of his ward.

       Appellants’ App. Vol. 7 at 9. He further testified that he was “unaware of any

       prohibition” against such a filing under Indiana’s guardianship statutes in effect

       at the time of O’Connor’s representation. Id. at 10. And he stated that “family

       law practitioners” had a “mixed” assessment of the law such that it was an

       “open question” among them whether such a procedure might be valid. Id. at

       16. However, when pressed to identify or produce case law authority in

       support of his position, Newton was unable to do so.


[20]   In any event, Newton further averred that a reasonably competent family law

       attorney in Indiana in a dissolution action that involved such a large estate and

       a guardianship over the attorney’s client would have acted “expeditiously”

       upon retention to put “motivation … [on the] opposing party to come to

       settlement either through mediation or negotiations ….” Id. at 35. In this

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 11 of 32
       respect, Newton identified a number of procedures—any one of which might or

       might not have ultimately been successful—that he thought O’Connor should

       have immediately implemented, which included filing a counter petition for

       dissolution, filing an emergency motion to bifurcate the proceedings, filing an

       emergency motion to be excused from the local mediation requirement, and

       immediately requesting that a trial date be set.


[21]   As Newton explained:


               In a family law matter an element and a major element in many
               cases is motivating the other side to take action that should be
               taken expeditiously, i.e. get ready for trial or settle ….

               ….


               …. [O’Connor] failed to go along two tracks of preparing for
               litigation … [and] at the same time keeping the door open for
               settlement.

               ….


               …. By filing [the counter petition, for example,] you provide
               motivation for wife and wife’s counsel to think realistically and
               act realistically toward[] settlement or toward getting ready for
               trial. The name of the game … is motivation.


               By filing the [counter petition], whether or not it ultimately is
               determined to be valid, … and by asking for a trial setting, by
               asking for mediation with an order with teeth in it as to timing,
               you provide that motivation. That was not done in the many
               months [in which it] should have been done.


       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018        Page 12 of 32
               ….


               …. [T]he issue of motivation is quite important and quite
               valuable. To motivate the other side to come to a reasonable
               settlement position or to mediate or to determine the effect or
               non-effect of things like prenuptial agreements is a very
               important strategy. I did not see any motivation of any
               significance in [O’Connor’s] conduct.


       Id. at 35-36, 90. In other words, Newton asserted that O’Connor had breached

       his duty of care to Jerry by not promptly acting in a manner calculated to bring

       “leverage” to bear on Susan to encourage her to settle the dissolution action.

       See Appellants’ App. Vol. 8 at 29.


[22]   Yet, when asked whether he knew if any of his preferred strategies might have

       been effective in motivating Susan to settle, Newton admitted that persuading

       Susan to accept a settlement


               could be a matter of [her] tactics, could be a matter of the
               prenuptial issue had [it] been resolved by the judge, could be a
               matter of instruction by [Susan to Cassman], could be a matter of
               one party or another’s interest to get on with his or her life.
               There might be estate planning issues, there may be family
               pressures[. Y]ou can imagine things like that and more that
               would cause a competent family law attorney to agree [to settle].


       Id. at 76. Newton further acknowledged that getting Susan to accept a

       settlement




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018      Page 13 of 32
               depends on how much, when paid, the terms of a settlement and
               other non-financial considerations. Clients settle cases all the
               time because they are tired of the litigation or because of non-
               financial factors or because of other things occurring in their life
               or in the world.


               So your question [regarding whether any of the proposed
               procedures would have actually been effective on Susan] is to
               some extent impossible to answer because we don’t know the
               totality of the considerations that she and Ryan Cassman were
               working with.

               ….


               …. [I]t is a dynamic situation. I fault [O’Connor] for not trying,
               for not doing what a reasonably cautious, reasonably experienced
               family law attorney in Indiana would do.


       Id. at 80, 82. Thus, notwithstanding Newton’s detailed critique and criticism of

       O’Connor’s representation, he did not state that but for O’Connor’s allegedly

       inadequate representation the outcome would have been different.


[23]   In its thorough order on summary judgment, the trial court concluded that there

       was a genuine issue of material fact with respect to whether O’Connor had

       breached his duty of care during his representation of Jerry. However, the trial

       court concluded, as a matter of law, that O’Connor had successfully negated

       the element of proximate cause. Specifically, the trial court concluded that the

       dissolution court erred in denying Susan’s motion to dismiss her own petition

       for dissolution and further erred in declining to dismiss Whitney’s counter

       petition. The trial court determined that a proper grant of Susan’s motion to

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 14 of 32
       dismiss her petition and her motion to dismiss Whitney’s counter petition

       would have precluded any damages attributable to O’Connor’s alleged

       malpractice. That is, the trial court concluded that given that Susan would

       have been entitled to summary judgment in the dissolution action on her

       motions to dismiss both her petition and Whitney’s counter petition, Whitney

       had failed to demonstrate how he would have been better off had O’Connor not

       breached his duty of care to Jerry. Accordingly, the trial court concluded that

       O’Connor was entitled to summary judgment on Whitney’s legal malpractice

       action and related collateral claims. This appeal ensued.7


                                         Discussion and Decision

                                             Standard of Review
[24]   Whitney appeals the trial court’s entry of summary judgment. We review

       summary judgments de novo, applying the same standard as the trial court.

       Erie Indem. Co. v. Estate of Harris, 99 N.E.3d 625, 629 (Ind. 2018). Summary

       judgment is appropriate only when the designated evidence shows there is no

       genuine issue of material fact and the moving party is entitled to judgment as a

       matter of law. Id. (citations omitted). When the trial court has granted



       7
         The appellants’ briefs contain numerous violations of the Indiana Rules of Appellate Procedure. In sum,
       under the pretext of advocacy, the appellants’ attorneys have littered their briefs with argument where it does
       not belong, irrelevant facts and unsupported legal conclusions, and what also appears to be a conscious
       attempt to confuse and conflate the issues. This is inexcusable behavior for these experienced appellate
       attorneys and only operates to the detriment of their clients. In fact, the same counsel were recently sternly
       cautioned by published order of our supreme court that such behavior is “not effective advocacy and [does]
       not advance the orderly disposition of appeal.” Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d 743, 743
       (Ind. 2018). This warning clearly went unheeded. We apprise counsel that continued disregard of these
       explicit warnings may expose counsel to more severe consequences.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                              Page 15 of 32
       summary judgment, the nonmoving party has the burden on appeal of

       persuading us that the grant of summary judgment was in error. Adams v.

       ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015).


[25]   Whitney’s complaint against O’Connor alleged four claims, but we agree with

       the trial court that the resolution of Whitney’s legal malpractice claim also

       resolves Whitney’s other claims. To prevail on a legal malpractice claim, a

       plaintiff must establish: (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).

       Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010) trans. denied (2011).

       It is appropriate for a trial court to grant summary judgment on a legal

       malpractice claim if the designated evidence negates at least one of these

       elements. Id. Only the third element – proximate cause – is at issue here.8


[26]   Our supreme court recently reiterated that the “trial within a trial” doctrine

       governs claims for legal malpractice. Roumbos v. Vazanellis, 95 N.E.3d 63, 65-66

       (Ind. 2018). To prove causation in this context, the client must show that “the

       outcome of the botched representation would have been more favorable to the

       client had the lawyer not been negligent.” Id. In other words, Whitney must

       prove that O’Connor’s negligence proximately caused his alleged loss of



       8
         At least for summary judgment purposes, O’Connor does not dispute that he owed Whitney a duty of care,
       even though Jerry, not Whitney, was his client. We emphasize that we do not reach or consider whether and
       do not hold that an attorney in a dissolution action owes a duty to nonclient heirs of the marital estate.
       O’Connor also does not dispute the trial court’s conclusion that the designated evidence creates a genuine
       issue of material fact regarding whether he breached his duty, and we need not express an opinion otherwise.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                           Page 16 of 32
       inheritance. Id. Thus, it is Whitney’s burden to prove that, but for O’Connor’s

       alleged errors in representation, the outcome of the dissolution proceedings

       would have been different (meaning that the marriage would have been

       dissolved before Jerry’s death, presumably allowing Whitney to inherit more of

       Jerry’s estate). We conclude, as a matter of law, that Whitney cannot satisfy

       this burden.


          Section 1 – The designated evidence negates the proximate
                 cause element of the legal malpractice claim.
[27]   In legal malpractice actions, the proximate cause requirement is a “but for”

       requirement. See, e.g., Richard H.W. Maloy, Proximate Cause: The Final Defense

       in Legal Malpractice Cases, 36 U. MEM. L. REV. 655, 671-77 (2006). That is, the

       client-plaintiff must show that, had the attorney-defendant not acted as he did,

       the result of the underlying lawsuit would have been different. Id. Where, as

       here, the underlying proceeding was not previously determined on the merits,

       we “must in effect conduct a trial or an appeal to determine if the client would

       have succeeded but for the negligence of the attorney.” Id. at 675-76 (footnotes

       omitted). “Although proximate cause is generally a question of fact to be

       determined by the jury, it becomes a question of law when the relevant facts are

       undisputed and lead to only a single inference or conclusion.” Wilson v. Lawless,

       64 N.E.3d 838, 848-49 (Ind. Ct. App. 2016), trans. denied (2017).


[28]   In support of his motion for summary judgment, O’Connor designated

       Lonnberg’s affidavit. According to Lonnberg, nothing O’Connor did or failed

       to do in his representation of Jerry in the dissolution action caused Whitney’s
       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018   Page 17 of 32
       claimed damages in the legal malpractice action. Lonnberg further stated that,

       because O’Connor’s representation of Jerry began after the guardianship had

       been established, and because Indiana law in 2012 and 2013 did not permit a

       guardian to file a petition for dissolution on behalf of his ward, nothing

       O’Connor could have done would have created a different result once Susan

       filed her motion to dismiss. In response to O’Connor’s motion and Lonnberg’s

       affidavit, Whitney designated the deposition and supplemental affidavit of his

       expert, Newton, who disputed Lonnberg’s assessments.9


[29]   Thus, to determine whether the outcome of the dissolution action would have

       been different but for O’Connor’s alleged errors in representation, we must

       resolve the following “trial within a trial” issues: (1) whether Susan was, as a

       matter of law, entitled to the dismissal of her dissolution petition; (2) whether

       Indiana law in 2012 and 2013 permitted Whitney, as Jerry’s guardian, to file a

       counter petition for dissolution on behalf of Jerry; and (3) whether O’Connor

       could have compelled Susan to settle the dissolution proceedings prior to her

       motion to dismiss. We turn to the law applicable at the time to dissolution of

       marriage.




       9
         Whitney briefly argues that the trial court erred in granting O’Connor’s motion to strike a portion of
       Newton’s expert opinion testimony. A trial court has broad discretion in granting or denying a motion to
       strike. Devereux v. Love, 30 N.E.3d 754, 766 (Ind. Ct. App. 2015). The trial court’s decision will not be
       reversed unless prejudicial error is clearly shown. Id. Our review of the stricken testimony reveals that such
       testimony either involved improper legal conclusions, see id., or is irrelevant to the dispositive proximate
       cause issue. Thus, Whitney cannot show prejudice, and we decline to address this issue further.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                              Page 18 of 32
          Section 1.1 – Susan was, as a matter of law, entitled to the
                     dismissal of her dissolution petition.
[30]   After originally issuing its order granting Susan’s motion to dismiss her

       dissolution petition, the dissolution court set aside that ruling, in effect denying

       her decision to no longer pursue a dissolution of the marriage. The trial court

       concluded that the dissolution court erred and that Susan was, as a matter of

       law, entitled to the dismissal of her petition. We agree with the trial court.


[31]   Here, Indiana statutory law provides that a petitioner in a dissolution of

       marriage action is entitled to withdraw her petition at any time prior to the

       dissolution court’s final judgment. Indeed, Indiana Code Section 31-15-2-12

       expressly permits a party who has filed an action for dissolution of marriage to

       subsequently move to dismiss that action. This permission is consistent with

       what is historically known as the statutory “cooling off” period, see Mendenhall

       v. Mendenhall, 116 Ind. App. 545, 551, 64 N.E.2d 806, 809 (1946), under which

       a final hearing on a petition for dissolution may not be conducted earlier than

       sixty days after the filing of the petition. Ind. Code § 31-15-2-10. Rather than

       providing the dissolution court with the discretion to deny a motion to dismiss a

       dissolution petition, our dissolution statute provides that the opposing party

       may file a counter petition for dissolution within five days after the motion to

       dismiss has been filed, and if the opposing party does so, the timeframe for the

       final hearing shall be based on the filing date of the initial, rather than the

       counter, petition. Ind. Code § 31-15-2-12(c).




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 19 of 32
[32]   The primary goal in interpreting a statute is to fulfill the legislature’s intent and,

       if the language is clear and unambiguous, we simply apply its plain and

       ordinary meaning, heeding both what it does say and what it does not say. In re

       Adoption of D.M., 82 N.E.3d 354, 360 (Ind. Ct. App. 2017). We presume the

       legislature intended logical application of the language used in the statute so as

       to avoid unjust or absurd results. Id. Based on the plain language of Indiana

       Code Section 31-15-2-12, we do not think the legislature intended to grant a

       trial court the discretion to compel an unwilling petitioner to continue to

       prosecute her petition to final decree.


[33]   Whitney mentions but does not meaningfully discuss Indiana Code Section 31-

       15-2-12 in his briefs on appeal. Instead, he relies on a 1960 Indiana Supreme

       Court case for the general proposition that a trial court’s decision to grant or

       deny a motion to dismiss is within the trial court’s discretion. See State ex rel.

       Dunn v. Circuit Court of Morgan Cty., 241 Ind. 168, 169, 170 N.E.2d 443, 444

       (1960). However, this case is not only factually inapposite, it was written in

       accordance with the long-outdated Indiana Divorce Act. Our current

       dissolution statute controls the procedure for dissolving a marriage and, by its

       plain language, provides a petitioner in a dissolution of marriage action the

       ability to unilaterally change her mind. In short, Susan was entitled to the

       dismissal of her petition as a matter of law. Had she moved for summary

       judgment in the dissolution action on this issue, as her attorney told O’Connor

       prior to Jerry’s death she intended to do, she would have prevailed, and the

       dissolution action would have been dismissed. Thus, as we will explain more


       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018        Page 20 of 32
       fully below, once Susan filed her motion to dismiss, nothing O’Connor did or

       failed to do would have created a different result.


             Section 1.2 – Whitney had no authority to file a counter
                    petition for dissolution on Jerry’s behalf.
[34]   The dissolution court’s decision to set aside its prior dismissal of Susan’s

       dissolution petition was based upon Whitney’s counter petition for dissolution.

       Thus, we look to whether Indiana law in 2012 and 2013 authorized Whitney,

       as Jerry’s guardian, to keep the dissolution action alive by filing a counter

       petition for dissolution on behalf of Jerry. Indiana law did not authorize

       Whitney to do so.


[35]   In 1951, the Indiana Supreme Court decided State ex rel. Quear v. Madison Circuit

       Court, 229 Ind. 503, 99 N.E.2d 254 (1951). In Quear, the Court addressed a

       substantially similar question to the one presented here, namely, whether a

       guardian could file a petition for divorce on behalf of an incapacitated

       individual. Specifically, the incapacitated individual in Quear had been

       adjudicated insane. The court explained:


               An insane person cannot bring an action for divorce because he
               cannot consent to the filing of the complaint. The wrongs which
               may be committed by a husband or wife are not, of themselves,
               sufficient to dissolve the bonds of matrimony. The injured party,
               if insane, may, upon recovering his or her reason, condone the
               wrong, or continue the marriage relation notwithstanding the
               delinquencies of the other party….




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 21 of 32
        Nor do the statutes on divorce or guardianship authorize the
        institution of a suit for divorce by the guardian in behalf of his
        ward. The right to divorce is not a common law right, but
        depends upon legislative enactments. Marriage is not only a civil
        contract, but it creates a status or relation. With this status or
        relation courts can interfere only to the extent and in the manner
        prescribed by statute. The statutory provisions for a separation
        from bed and board for a limited time adopt the statutory
        provisions for an absolute divorce as to residence and proof
        thereof, and the practice and proceedings of the court. Section 3-
        1231, Burns’ 1946 Replacement, Acts 1903, ch. 48, § 4, p. 114.
        The statutes on divorce grant no right to a guardian to prosecute
        an action for divorce, but on the other hand provide, “Divorces
        may be decreed upon the application of the injured party * * *
        [.]” Section 3-1203, Burns’ 1946 Replacement, Supplement,
        provides in part, “and the petitioner shall, with such petition, file
        with the clerk of the court an affidavit subscribed and sworn to by
        such petitioner in which the petitioner shall state the length of
        time the petitioner, or the defendant spouse, as the case may be,
        has been a resident of the state * * *.”


        There is no statutory authorization in any of the acts providing for the
        appointment of a guardian which would authorize a guardian to
        prosecute an action for divorce. In Pence v. Aughe, Guardian, 1885,
        101 Ind. 317, [],this court held that the statutes on guardianship
        of minors and guardianship of insane persons did not authorize a
        suit by the guardian to annul a marriage of his ward. In Langdon
        v. Hadley, 1926, 85 Ind. App. 515, 150 N.E. 793, the Appellate
        Court of Indiana, upon the authority of the Pence case, supra,
        held that a guardian of an insane person could not prosecute an
        action to annul the marriage of his ward.


        Since neither the statutes defining the powers of guardians nor
        the statutes on divorce authorize a guardian to prosecute an
        action for divorce, whether absolute or limited, the trial court had
        no jurisdiction to entertain the action in this case.

Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018         Page 22 of 32
       Id. at 256-58 (emphasis added; footnote, citations, and quotation marks

       omitted).


[36]   Two Court of Appeals cases decided in 2013, just months after Jerry’s death,

       followed the holding in Quear. In Tillman v. Tillman, a panel of this Court held

       that a guardian had no legal authority to file a petition for dissolution of her

       ward’s marriage. 70 N.E.3d 349, 352 (Ind. Ct. App. 2013), trans. denied.10 After

       discussing our supreme court’s holding in Quear, we stated:


                Neither the current Indiana statutes governing dissolution of marriage
                nor those governing the guardianship of incapacitated persons provide a
                means for the guardian of an incapacitated person to file a petition for
                dissolution of marriage on behalf of the incapacitated person. The facts
                of the present case are parallel to the facts of Quear in this regard.
                In this case, both Husband and Wife are incapacitated and
                neither are competent to consent to the filing of a dissolution
                petition. Since Indiana statute does not provide guardians of
                incapacitated persons the authority to petition for dissolution of
                marriage on the incapacitated person’s behalf, the trial court’s
                dismissal of the motion Wagner filed on Husband’s behalf was
                proper.


                Husband argues that the Quear decision is “no longer consistent”
                with Indiana’s no fault divorce policy. He further asserts that
                certain provisions of the guardianship statute can be read to
                allow a guardian to file for dissolution of marriage on behalf of



       10
          The petition to transfer in Tillman presented the following question for our supreme court’s review:
       “Whether [Quear], holding that a guardian may not maintain an action for dissolution of marriage [o]n behalf
       of an incapacitated person[,] should be modified[] since that decision is inconsistent with the current Indiana
       ‘no fault’ divorce laws and has been implicitly rejected by pertinent provisions of the Indiana probate code
       enacted since 1951.” Tillman, 70 N.E.3d 349 (No. 87A05-1212-DR-619), Pet. to Trans. at 2. Our supreme
       court unanimously denied the transfer petition.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                             Page 23 of 32
               his ward. While Husband would have us read these statutes
               broadly, we decline the invitation to contravene our supreme
               court’s holding in Quear.


               We acknowledge that Quear was decided more than sixty years
               ago, in 1951. Some might argue that the intervening decades of
               higher and higher divorce rates and the creation of federal and
               state programs to assist the elderly have radically changed civil
               society’s notions concerning what the vows of “for better and for
               worse” mean. Therefore, for some, this might seem an
               appropriate time to revisit Quear. But Quear relied on the public
               policy pronouncements of the General Assembly within
               Indiana’s divorce and guardianship statutes, and those statutes
               have not changed appreciably regarding the issue before us since
               Quear. For example, the General Assembly has yet to provide to a
               guardian the statutory authority to file for dissolution of marriage on
               behalf of the incapacitated person. And Quear has not been modified,
               let alone overruled, by any subsequent supreme court decision.
               Therefore, Quear remains controlling law in Indiana and controls
               the result in this case.


       Id. (emphases added; footnote omitted).


[37]   Another panel of this Court reached the same result, for substantially the same

       reasons, in McGee v. McGee, stating as follows:


               Husband’s co-guardians argue that the rule set forth in Quear has
               the effect of “[p]rohibiting a guardian from bringing action to
               dissolve the marriage on behalf of his incapacitated ward [which]
               causes the guardian to be in conflict with his oath to preserve the
               property and protect the health and welfare of their incapacitated
               ward.” Appellee’s Br. at 5. While this claim is carefully
               expressed in terms of the co-guardians’ responsibility to
               Husband, their ward and father, there is no evidence in the
               record of any competent expression of Husband desiring
       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018        Page 24 of 32
        anything other than his continued marriage to Wife, and Wife
        clearly desires to remain married to Husband, whether he is
        competent or not. The real reason for the co-guardians’ claims
        considers neither the love of Husband and Wife, nor their vows
        of “for better and for worse.” For good reason, and as our
        supreme court made clear in Quear, and as re-emphasized in this
        court’s recent opinion [in Tillman], the right to divorce is a
        legislatively-created right, not a judicially-created right.


        While the statutes governing dissolution and guardianship in
        Indiana have evolved since 1951, when Quear was decided, it is
        still the case today that neither the current Indiana statutes
        governing dissolution of marriage nor those governing the
        guardianship of incapacitated persons provide a means for a
        guardian to file a petition for dissolution of marriage on behalf of
        his or her ward. Dissolution of marriage actions in Indiana are
        governed by Indiana Code Title 31, Article 15, which provides
        that a party who seeks to initiate a dissolution of marriage
        proceeding must file a verified petition for dissolution. Ind. Code
        § 31-15-2-5. Indiana Code section 29-3-8-4 provides that the
        guardian of an incapacitated person may take action and make
        decisions for the benefit of the incapacitated person. For
        example, the guardian may “invest and reinvest the property of
        the protected person,” may exercise control over the
        incapacitated person’s business or income, and, if reasonable,
        may “delegate to the protected person certain responsibilities for
        decisions affecting the protected person’s business affairs and
        well-being.” Neither statute, however, provides the guardian with the
        right to file a petition for dissolution on behalf of the incapacitated
        person. In a world full of subsequent marriages and available pre-
        nuptial agreements, we will not read into a statute such a
        sweeping and potentially overreaching authority, authority that is
        not the clearly expressed intent of the General Assembly.


        Therefore, since Indiana statute does not provide guardians with
        the authority to petition for dissolution of marriage on the ward’s

Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018         Page 25 of 32
                behalf, the trial court’s grant of the petition for dissolution [the
                co-guardians] filed on Husband’s behalf was improper.


       998 N.E.2d 270, 271-72 (Ind. Ct. App. 2013) (emphasis added; first two

       alterations original to McGee).


[38]   Although our supreme court’s opinion in Quear predates by some decades the

       current Dissolution of Marriage Act, this Court’s opinions in Tillman and

       McGee confirmed the continued applicability of Quear’s reasoning to the instant

       case. As the trial court recognized in its order on summary judgment, Quear

       was controlling authority during O’Connor’s representation of Jerry in the

       dissolution proceedings, and thus O’Connor was correct when he advised

       Whitney that there was no specific legal authority allowing a guardian to

       petition for dissolution on behalf of a guardian’s ward.11


[39]   Whitney asserts that Quear applied only to petitions to initiate a dissolution, not

       to counter petitions, and, thus, that the trial court erred when it held that Quear

       precluded a guardian from filing a counter petition for dissolution of marriage.

       He maintains that “the counter petition simply agrees with continued prosecution




       11
          Although Tillman and McGee were decided after the dissolution court dismissed the dissolution as moot in
       light of Jerry’s death and, as such, was not controlling authority, we nonetheless think they demonstrate how
       Quear would have applied to the instant facts, which also comports with O’Connor’s understanding. We note
       that Quear and its progeny remained applicable until 2014 amendments to the guardianship and dissolution
       statutes. See Ind. Code § 29-3-8-4(12) and Ind. Code § 31-15-2-5(b) (now enabling a guardian to petition trial
       court for authority to petition for dissolution of ward’s marriage).



       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                            Page 26 of 32
       of the other spouse’s action.” Appellants’ Br. at 34. Whitney argues, in effect,

       that a counter petition has no independent significance.


[40]   To the contrary, a counter petition for dissolution stands on its own and is

       equivalent to an initial petition for dissolution in its operation and effect. See

       Braden v. Braden, 575 N.E.2d 293, 294-95 (Ind. Ct. App. 1991), trans. denied

       (1992). Indeed, a dissolution action may proceed on a valid counter petition

       even after the original petition has been dismissed. Id; Ind. Code § 31-15-2-12.

       That was the very rationale for Whitney’s putative counter petition here,

       namely, to keep the case alive in light of Susan’s motion to dismiss her petition.

       Accordingly, we reject Whitney’s argument that there is a material difference

       between a petition and a counter petition for dissolution of marriage and that

       Quear is inapplicable. At all times relevant here, both petitions and counter

       petitions required a verified averment by the petitioner of the grounds for

       dissolution, see Ind. Code § 31-15-2-3, this being the fundamental reason our

       supreme court held in Quear that a guardian is unauthorized to make such an

       averment on behalf of his ward. Quear, 229 Ind. at 505-508, 99 N.E.2d at 256-

       58. In this respect, for all intents and purposes, a petition and a counter petition

       are indistinguishable. As such, the time to file a counter petition for dissolution

       of marriage would have been before Jerry was declared incapacitated and

       appointed a guardian, some ten months before O’Connor was retained. We




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018       Page 27 of 32
       hold that Quear was applicable and precluded Whitney’s counter petition as

       Jerry’s guardian. 12


[41]   Even assuming that Quear applied to preclude his counter petition as Jerry’s

       guardian, Whitney maintains that he also held power of attorney and, as Jerry’s

       attorney-in-fact, he had authority to file a counter petition for dissolution on

       Jerry’s behalf. Whitney contends that Indiana Code Section 30-5-5-11 grants

       attorneys-in-fact broad powers to prosecute claims on behalf of their principals

       and that there is nothing in that statute to suggest that an attorney-in-fact lacks

       authority to file a counter petition for dissolution of marriage to prevent an

       “exploitive dismissal by the estranged spouse.” Appellants’ Br. at 38. Whitney

       asserts, in effect, that because the statute does not specifically prohibit a counter

       petition for dissolution of marriage, it must be permitted. The trial court held,

       however, that an attorney-in-fact does not have plenary authority to file a

       petition or counter petition for dissolution of marriage, and we agree.




       12
          Still, Whitney urges us to ignore Quear on the basis that allowing a guardian to file a counter petition for
       dissolution is necessary to defeat the other spouse’s malicious tactical intent. The gravamen of Whitney’s
       complaint is that Susan’s motion to dismiss sought to take unfair advantage of Jerry and was a “unilateral
       and exploitative dismissal.” Appellants’ Br. at 28, 33. In any event, we decline Whitney’s invitation to
       attribute a bad motive to Susan because her motive is irrelevant. Susan had an unfettered right to file her
       petition for dissolution and an unfettered right to withdraw her petition. As noted by O’Connor, “the true
       triggering cause for any damages or decrease” in Whitney’s inheritance from Jerry’s estate was the order
       granting the guardianship over Jerry. Appellants’ App. Vol. 2 at 210. “Once this Guardianship was
       established, [Susan] had complete control to either work towards a negotiated settlement of the [dissolution]
       action, or simply dismiss her Petition for Dissolution at any time and effectively end the entire Dissolution
       process and secure her status as Jerry’s spouse ….” Id. As Whitney’s own expert observed, “[O’Connor]
       took the case as he found it …, the case did not appear anew at the beginning of his representation.”
       Appellants’ App. Vol. 7 at 95. He was the fourth attorney to represent Jerry in the dissolution, which had
       been pending for some three and a half years, and the guardianship over Jerry had already been established
       ten months earlier. In other words, O’Connor’s professional hands were tied before he was even retained.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                              Page 28 of 32
[42]   The power of attorney statute generally authorizes an attorney-in-fact to assert

       or prosecute “a cause of action, a claim, a counterclaim, an offset, or a defense”

       and then describes in some detail the nature and extent of that authority, but the

       statute makes no mention of a petition or counter petition for dissolution of

       marriage despite various other specifically enumerated powers. Ind. Code § 30-

       5-5-11. When determining legislative intent, it is a long-standing principle of

       statutory construction that the enumeration of certain things in a statute

       necessarily implies the exclusion of all others. Brandmaier v. Metro. Dev. Comm'n

       of Marion Cty., 714 N.E.2d 179, 180 (Ind. Ct. App. 1999), trans. denied. And, as

       we have already stated, we must be mindful of both what the statute says and

       what the statute does not say. ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62

       N.E.3d 1192, 1195 (Ind. 2016).


[43]   We will not extend the power of attorney statute beyond the clearly expressed

       legislative intent. Considering that an individual’s marital status is uniquely

       personal, and that the power of an agent to dissolve the marriage of his

       principal is fraught with potential for mischief, we deem it significant that the

       statute does not speak specifically to dissolutions of marriage. The same

       reasoning which applied to guardians in Quear, Tillman, and McGee applies with

       even greater force to attorneys-in-fact, who, unlike guardians, usually act

       without court supervision. We agree with the trial court that no statutory law

       authorized Whitney, as Jerry’s attorney-in-fact, to prosecute a petition or

       counter petition for dissolution of marriage on Jerry’s behalf.




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018     Page 29 of 32
[44]   In sum, Whitney’s purported counter petition for dissolution of marriage

       should have been dismissed and would have been declared invalid, as a matter

       of law, if Susan had challenged the same. As stated above, once Susan moved

       to dismiss her dissolution petition, as she was entitled to do, there is nothing

       O’Connor did or failed to do for his incapacitated client that would have

       created a different result.


            Section 1.3 – O’Connor could not compel Susan to settle the
                  dissolution action prior to her motion to dismiss.
[45]   Both at the summary judgment level and on appeal, Whitney has spent

       considerable effort belaboring the actions he alleges that O’Connor could and

       should have taken (the alleged breach of his duty of care) soon after his

       retention to expeditiously obtain a dissolution of Jerry’s marriage.13 The crux of

       Whitney’s designated expert’s testimony, however, was not that any of those

       actions were valid or would have been successful in moving the actual

       dissolution court proceedings to final decree, but that, had O’Connor engaged

       in these strategies, Susan would have been motivated to settle. Newton’s

       testimony essentially outlined steps, such as pushing for a final dissolution

       hearing and seeking bifurcation of the dissolution and the property distribution,

       that O’Connor could have taken to put pressure on Susan to settle. However,




       13
         Whitney repeatedly refers to O’Connor’s failure to obtain a dissolution of Jerry’s marriage during the ten-
       month period between when he learned of Jerry’s dire health, in May of 2012, and the date of Jerry’s death,
       March 18, 2013. However, as we concluded above, once Susan moved to dismiss her dissolution petition on
       September 20, 2012, the dissolution proceedings should have come to an end. So, the only relevant time is
       the short period during which O’Connor represented Jerry prior to Susan’s motion to dismiss.

       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018                            Page 30 of 32
       when asked whether Susan would have been more likely to settle had

       O’Connor engaged in his proposed strategy, Newton could only speculate. In

       particular, Newton admitted that “it [wa]s a dynamic situation,” that “[c]lients

       settle cases all the time” for any number of reasons, and that “we don’t know

       the totality of the considerations that [Susan] and [her attorney] were working

       with.” Appellants’ App. Vol. 7 at 90-91.


[46]   Such speculation is insufficient to avoid summary judgment. Cf. Prancik v. Oak

       Hill United Sch. Corp., 997 N.E.2d 401, 405 (Ind. Ct. App. 2013), trans. denied

       (2014). While Newton criticized O’Connor’s strategy and tactics, he stopped

       well short of stating that but for O’Connor’s allegedly inadequate strategy that

       the outcome would have been more favorable to Whitney. See, e.g., Cannistra v.

       O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 728 N.Y.S.2d 770, 771

       (N.Y. App. Div. 2001) (holding that the clients had failed to demonstrate that,

       but for the attorney’s negligence, “they would have accepted the . . . settlement

       offer and not . . . sustained any damages.”). Significantly, it is undisputed that

       there is nothing O’Connor could have done to actually compel Susan to settle

       the case and finalize a dissolution of the marriage. In short, no genuine issue of

       material fact remains on the issue of proximate cause.


                                                   Conclusion
[47]   The designated evidence negates the element of proximate cause on Whitney’s

       legal malpractice claim. Nothing that Whitney claims O’Connor could have

       done would have produced a better outcome in the dissolution proceeding


       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018     Page 31 of 32
       given the guardianship and the state of the law at the time of the representation.

       Susan was entitled to a dismissal of her own dissolution petition, and the

       dissolution court should have further granted her motion to dismiss Whitney’s

       putative counter petition. Even had Jerry lived and O’Connor been successful

       in pursuing the counter petition in the dissolution court, Susan would have

       prevailed on appeal, and the entirety of the dissolution proceeding been

       vacated, based on the dissolution court’s erroneous rulings. Moreover,

       O’Connor could not compel Susan to settle the dissolution action prior to her

       motion to dismiss.


[48]   Thus, as a matter of law, O’Connor’s representation of Jerry during the

       dissolution was not the proximate cause of any damages from loss of

       inheritance that Whitney may have incurred. As there is no proximate cause

       between O’Connor’s alleged errors and Whitney’s alleged loss, we affirm the

       trial court’s entry of summary judgment in favor of O’Connor.


[49]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-58 | September 13, 2018    Page 32 of 32
