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CoA affirms denial of summary judgment to lawyer in legal malpractice case

This matter stems from a legal malpractice claim against a criminal attorney and mainly involves the concept that professional negligence may be nullified if allowing a claim to proceed would allow one to profit from his or her own criminal acts. The CoA limited the application of this rule.

Here, “Beal [the attorney/defendant] represented Blinn [the client/plaintiff] in a federal criminal action, despite Beal’s limited experience with federal litigation, his unfamiliarity with the legal construction of a federal proffer session, its purpose and its consequences, and his failure to convey a request for further interviews as part of the proffer session to Blinn.” The resulting federal proffer session snafu led to Blinn’s plea deal being revoked and him subsequently receiving a worse deal later on through a different attorney.

In arguing for summary judgment, Beal relied on the case of Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997), trans. denied. In that case, a patient diagnosed as psychotic was discharged and went on to murder four people in South Carolina after which he was found guilty but mentally ill. His family then filed a claim for medical malpractice against the doctor who discharged him.

The Court of Appeals held in that case:

the rule against actions based upon or involving a plaintiff’s criminal act is correlative with Indiana’s public policy against permitting one to profit from his or her wrongdoing. Each embodies the principle that one who is responsible for the commission of a criminal or wrongful act must exclusively bear his or her share of the responsibility for the act, and may not evade that responsibility either through gaining some profit for the act or shifting liability for the act to another. We therefore hold it to be the public policy of this state that an individual who has been convicted of a crime should be precluded from imposing liability upon others, through a civil action, for the results of his or her own criminal conduct. Consequently, a person may not maintain an action if, in order to establish the cause of action, he or she must rely, in whole or in part, upon an illegal act or transaction to which he or she is a party or upon a violation by him or herself of the criminal laws.

Rimert, 680 NE 2d at 874.

The Court of Appeals distinguished Rimert from the instant matter in that the former held one could not essentially excuse his criminal acts (or profit thereform) by stating that the professional negligence caused or contributed to the criminal acts. Rather, when the alleged professional negligence occurred after the alleged criminal actions, as here, the policy was not applicable since it would in essence prevent any criminal defendant from maintaining a legal malpractice claim against his or her own attorney where the defendant was found or pleaded guilty.

www.in.gov/judiciary/opinions/pdf/05071403par.pdf.

Estranged wife entitled only to 2.5% of husband’s lottery winnings

Married couple was physically separated in June, 2006. The husband then won $2,000,000 in the lottery in January, 2011 and coincidentally decided that a final divorce decree was long overdue. Trial Court found that wife was entitled to only 2.5%

Of note was that wife sent requests for admissions that husband did not answer. By these admissions, husband admitted that a 70/30 split to the wife was a just and equitable distribution. The Court of Appeals agreed, affirming that requests for admissions may be used to establish legal conclusions, but stated that husband only admitted that it was “a” just and equitable distribution and not “the only” such distribution. The trial court was still obligated to decide of the distribution was fair and reasonable. See Ind. Code § 31-15-7-5. In so holding, the Court noted: Discretion signifies choice, and a decision-maker exercising discretion has the ability to choose from a range of permissible conclusions. Johnson v. U. S., 398 A.2d 354, 361 (D.C. 1979).

How not to contest adverse possession.

“While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter’s land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.”

While the IN CoA ultimately found that the Reuter was not entitled to retain the property under adverse possession or any other theory, reversing the trial court, it did affirm the award of damages award of $29,487.70 against Flick for damages he caused by attempting to eject Reuter without court authorization pursuant to Indiana Code § 32-30-2-1.

www.in.gov/judiciary/opinions/pdf/02131401nhv.pdf.

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