Crone, J.
Case Summary
Whitney A. Gates, Jonathan W. Gates, and Jacob A. Gates (hereinafter “Whitney”) appeal the trial court’s entry of summary judgment in favor of attorney Joseph D. O’Connor and Bunger & Robertson, LLP (“the law firm”) on Whitney’s claim for legal malpractice. [Footnotes omitted.] 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 legal malpractice action and is entitled to summary judgment. Accordingly, we affirm. [Footnote omitted.]
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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. [Footnote omitted.]
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 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.
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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.
Section 1.1 – Susan was, as a matter of law, entitled to the dismissal of her dissolution petition.
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.
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Section 1.2 – Whitney had no authority to file a counter petition for dissolution on Jerry’s behalf.
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.
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Section 1.3 – O’Connor could not compel Susan to settle the dissolution action prior to her motion to dismiss.
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. [Footnote omitted.] 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, 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.
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Conclusion
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 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.
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.
Affirmed.
May, J., and Pyle, J., concur.