A law firm must face a malpractice suit for failing to file a tort claim notice on behalf of a woman who was seriously injured by an attacker and whose daughter was killed. The assailant was the subject of an active protective order that authorities failed to find before releasing him from jail.
The Indiana Court of Appeals on Wednesday reversed summary judgment for Drendall Law Firm of South Bend and remanded Lucy Mundia’s malpractice case. Writing for the panel, Judge Rudolph R. Pyle III rejected the firm’s argument that it was not the proximate cause of Mundia’s damages and could not be sued because the South Bend Police Department and St. Joseph County Prosecutor’s Office were immune under the Indiana Tort Claims Act.
“Mundia argues that the trial court erred by granting summary judgment to Drendall on her legal malpractice claim because there is an issue of fact regarding proximate cause and damages. Because we agree and conclude that Drendall did not meet its initial burden of negating the elements of proximate cause and damages of Mundia’s legal malpractice claim, we reverse the trial court’s grant of summary judgment and remand for further proceedings,” Pyle wrote in Lucy Mundia v. Drendall Law Office, P.C., 71A05-1610-PL-2388
Mundia’s husband, Edward Mwuara, was released from jail after authorities misspelled his name when he was arrested on suspicion of violating of protective order against Mundia’s 6-year-old daughter, Shirley. A deputy prosecutor checked the protective order registry under the misspelled name, and finding no active order, declined to charge Mwuara, who was released and attacked his wife and fatally stabbed Shirley. Mundia later hired Drendall to represent her in a potential negligence suit against the public entities.
“Drendall argues Mundia cannot show that the outcome of her underlying litigation would have been more favorable but for Drendall’s failure to timely file a Tort Claim Notice. However, as non-movant on summary judgment, that is not her burden. That would be her burden at trial,” Pyle wrote.
The court also held that Drendall attempted to shift the burden to Mundia regarding her claim that the failure to file a tort claim notice negated her possibility of settlement or having her day in court.
“Our reversal of the trial court’s grant of summary judgment should not be construed as an opinion on the merits of Mundia’s case or whether she will ultimately be able to show all the elements of her legal malpractice claim,” the court noted. “However, because Drendall has failed to prove there are no genuine issues of fact regarding the issues of proximate cause and damages of Mundia’s legal malpractice claim, we reverse the trial court’s entry of summary judgment and remand for further proceedings.”