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Judges rule on legal malpractice action

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The Indiana Court of Appeals concluded that a man has standing to pursue his legal malpractice action, although issues of material fact preclude him from summary judgment as to the attorney’s liability for malpractice.

In Charles Price v. Delmar Kuchaes, No. 45A04-1007-CT-467, attorney Delmar Kuchaes claimed his former client Charles Price didn’t have standing to sue him for legal malpractice stemming from his representation in the Prices’ suit after Charles’ wife contracted polio after being exposed to someone recently vaccinated.

After Price lost his claim for loss of consortium due to failure to comply with notice requirements under Indiana law, Price filed a legal malpractice action against Kuchaes. The Prices then filed Chapter 13 bankruptcy in 2007, but didn’t inform the bankruptcy court of this malpractice suit until they filed an amended petition in 2009. The bankruptcy case was later dismissed.

At a hearing, the trial court granted partial summary judgment in favor of Price as to Kuchaes’ liability for malpractice, but denied summary judgment on the amount of damages. It held Cathy Price’s injury was battery under Indiana law and Kuchaes failed to act as a reasonably prudent lawyer, and that failure was the proximate cause of damages incurred by Price. The trial court later granted Kuchaes’ dispositive motion for summary judgment. Both sides appealed.

Kuchaes argued Price doesn’t have standing to maintain the legal malpractice action because when he filed for bankruptcy, the trustee became the one to pursue the claim. The judges found that when the bankruptcy was dismissed in July 2009, that returned ownership of the action to Price, so he has standing to pursue his legal malpractice action.

Although the judges found it troubling that Price didn’t disclose his malpractice action initially in his bankruptcy filing, they concluded as a matter of law that the malpractice action isn’t barred by judicial estoppel as Kuchaes argued. They reversed summary judgment to Kuchaes and remanded for further proceedings on this issue.

The judges also concluded that the trial court erred in granting summary judgment to Price as to Kuchaes’ liability for malpractice. Price didn’t show that if Kuchaes had properly pursued the loss of consortium claim against the vaccine manufacturers he would have prevailed. There are also issues of material fact as to whether Price’s loss of consortium claims against the vaccine manufacturers and medical defendants would have been successful had Kuchaes properly pursued them.

The appellate court affirmed the denial of summary judgment for Price as to damages, and remanded for further proceedings.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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