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Legal malpractice arguments focus on whether crime victim lost settlement chance

May 31, 2017

Editor's note: The Indiana Court of Appeals handed down its decision in the case May 31, ruling the law firm must face the legal malpractice suit.

A name misspelled by authorities in 2013 precipitated a horrific chain of events: A man arrested for suspicion of violating a protective order was released from jail, and he soon fatally stabbed a 6-year-old girl and brutally attacked her mother.

Lucy Mundia, the girl’s mother and the attacker’s wife, was seriously wounded in the assault by Edward Mwuara. Police responding to the disturbance shot and killed him. Mundia later hired Stephen Drendall and the Drendall Law Office to represent her in a potential lawsuit against South Bend Police and the St. Joseph County Prosecutor’s Office, but the firm never filed an Indiana tort claim notice, negating the possibility Mundia could sue the public entities.

A panel of the Indiana Court of Appeals appeared dubious of the law firm’s argument that it should be shielded from a legal malpractice lawsuit because the law enforcement agency and prosecutor’s office enjoyed immunity under the Indiana Tort Claims Act. Oral arguments May 17 also revealed a remarkable level of secrecy in the case: Mundia’s attorney told judges that after almost four years, South Bend police have never furnished a report on the incident.

Immune from suit?

Drendall Law Office prevailed on summary judgment against Mundia’s malpractice claim in a St. Joseph trial court, and attorney Sarah Hurdle urged the appellate panel to affirm the ruling. “Drendall has affirmatively negated the element of proximate cause in Mundia’s legal malpractice claim,” Hurdle argued.

In order to prevail, she said Mundia would have to prove that she would have a more favorable outcome if not for her attorney’s alleged malpractice. Hurdle told the judges that because South Bend police and the St. Joseph County Prosecutor’s Office are immune from suit under the Indiana Tort Claims Act, Mundia could not have been harmed by Drendall’s failure to file a tort claim notice.

Judge Rudy Pyle seemed doubtful that no more favorable outcome was possible for Mundia in this case. “I don’t want to be any elected prosecutor under these facts, standing out there saying, ‘This horrible thing happened, but … we’re not giving her any money, even though we’re responsible,” he said. “I don’t know of any mayor who wants to be in that position.” He asked Hurdle whether Mundia had a point that the failure to file notice eliminated the possibility of settlement, even if the agencies could argue immunity.

“We have shown that Mundia’s claim was meritless,” Hurdle said. But Pyle interjected that Drendall “actively sought out this case, and specifically noted the strict time limits. And now the argument is, the case was meritless?”

Hurdle responded that the nature of legal malpractice claims in Indiana is that Drendall now stands in the shoes of the public entities. And the entities are immune, she said, because they were acting within the course and scope of their duties.

Pyle again pressed Hurdle on whether it was possible that either agency might settle a case, even if there was an immunity defense. “Even if it is possible,” Hurdle said, when Pyle interrupted, “And that’s enough. A genuine issue.”

“She lost the opportunity to settle the case here,” Judge Elaine Brown said, but Hurdle countered that an opportunity to settle isn’t recognized under Indiana’s legal malpractice standard of the possibility of a more favorable outcome.

“Mundia asks the court to speculate in her complaint” about a potential better outcome because of the tragic nature of the facts and public statements that are not in the record, Hurdle said, prompting a retort from Judge Melissa May.

“Apparently, your client assumed that too, because he actively solicited the case,” May said. “… You have to take his admission, that at least at one point, he thought he had a valid case.” She said Drendall had to prove his client would have had no opportunity whatsoever to recover. “I’m just not sure based on the record that’s presented that that’s really done.”

“We do not believe it was our burden to show that there’s no possible settlement that could have been reached in this case,” Hurdle later said.

A scant record

Judges also noted the paucity of the record in the malpractice case, which Mundia’s attorney, Benjamin Blatt, testified has been a barrier for his client.

“I have not been able to physically see the (police) report because South Bend won’t release it, because they term it an active death investigation,” Blatt said.

“… As far as why it’s an open death investigation, I don’t have a clue.”

But aside from the lack of an official report, judges also pressed Blatt on why he designated little evidence for Mundia at summary judgment. He said he believed the failure of the law office to file a tort claim notice was established, and that alone should have been sufficient to overcome summary judgment.

“Between being able to say, ‘At least the notice was filed and we can discuss settlement,’ versus, ‘The notice was never filed and no lawsuit is possible,’ you automatically lose at least a settlement possibility,” Blatt said. “Beyond that, you certainly lose your opportunity to have your day in court.”

The appellate judges also focused on whether the duties of police and prosecutors in this case were discretionary or ministerial, as Blatt argued — a distinction that could address whether immunity applied to the agencies.

Police and prosecutors, he argued, “have a ministerial duty to follow up and make sure the information is presented properly.” He said when a prosecutor searched for Mwuara’s name that was misspelled as provided, the prosecutor also could have searched by the victim’s name. He said this would have returned a hit for a protective order for the girl, Shirley Mundia — the very order Mwuara was accused of violating on May 30, 2013, before he was released after prosecutors found no active protective order and did not charge him.

Blatt said the prosecutor failed to properly investigate whether Mundia was the subject of a protective order. While criminal defendants have remedies for rights violations by prosecutors under federal Section 1983, Blatt said affirming the trial court in this case would send a stark message that crime victims have no recourse. “Essentially what we’re saying is the state of Indiana believes the immunity granted to prosecutors for ministerial duties, which it wouldn’t grant to other employees, is such that it’s worth a 6-year-old’s life,” he said.

Indiana Lawyer requested all available public documents in the Mundia homicide case from the South Bend Police Department and the St. Joseph County Prosecutor’s Office. South Bend police denied the request. The prosecutor’s office responded with four press releases it issued after the fatal attack.

One statement from then-Prosecutor Michael Dvorak noted the suspect’s name on the valid protective order had been misspelled “Mwawra,” and that police had failed to note a valid protective order number. The release said a deputy prosecutor “failed to examine the Protective Order Registry by the victim’s last name ‘Mundia’ which would have shown the existence of the valid protective order.

“Clearly, (Mwuara) should have been charged” with violating the protective order, the release said. The deputy prosecutor “failed to exercise the thoroughness expected, particularly in crimes with women and children as the victims of domestic abuse,” the press release said. “Accordingly, this individual is no longer employed with the St. Joseph County Prosecutor’s Office.”•
 

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