August 11, 2017

It Is Tough To Prove A Lack Of Proximate Cause; Mundia v. Drendall Law Office

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Mundia really caught my attention, as it is a legal malpractice case and that is one of our areas of practice. But it has a wider lesson for anyone practicing in state court about summary judgment.

Mundia’s husband, Mwuara, was arrested in May 2013 for violating a protective order. In its report, the Police Department noted that there was a protective order for Mundia’s six-year-old daughter, Shirley Mundia (“Shirley”), but failed to note that there was a protective order for Mundia. The Prosecutor’s Office searched for a protective order in Mwuara’s name but not in the name of Shirley or Mundia, the protected individuals. After seeing no active protective order under Mwuara’s name, the Prosecutor’s Office released him from jail. Less than seventy-two hours later, Mwuara returned to Mundia’s house and stabbed both Mundia and Shirley, resulting in Shirley’s death and severe injuries to Mundia.

Mundia hired Drendall to represent her in suits against the County and City. However, Drendall did not file the required tort claim notice. When Mundia discovered this, she filed a legal malpractice claim against Drendall.

Drendall moved for summary judgment, arguing that the Prosecutor’s Office and the Police Department were immune, so his failure to file the tort claim notice did not actually cause any damage. Mundia disputed this, arguing that there were questions regarding whether immunity applied to this case. The Court of Appeals described what happened next:

The summary judgment hearing was not the typical summary judgment hearing with the movant, Drendall, presenting argument to meet its summary judgment burden and specifically negating an element of Mundia’s claim followed by the non-movant, Mundia, presenting argument to show why there were genuine issues of fact. Indeed, Drendall did not present argument first as movant and did not present any specific argument regarding how the immunity provisions of the ITCA—Subsection 7 and Subsection 8—applied to negate the proximate cause element. Instead, the hearing proceeded with Mundia’s counsel first presenting argument to dispute the application of the immunity provisions and then arguing that there were questions of fact regarding proximate cause and damages.

During the hearing, Mundia … also argued that, regardless of whether the Prosecutor’s Office had immunity, Drendall’s failure to timely file the Tort Claim Notice had resulted in a loss of her potential to file her case and enter into settlement negotiations with the County and City. Mundia stated that Attorney Drendall’s pursuit of her as a client showed that her case had some merit, in the form of a settlement opportunity, even if immunity applied. Mundia contended that there would have been settlement potential because the Prosecutor’s Office’s search of the protective order database was inadequate (only searching the arrestee’s name) and because the Police Department’s arrest report of Mwuara contained a misspelled name and did not include the protective order number for the active protective order against Mwuara.

The trial court granted Drendall’s motion and Mundia appealed.

On appeal, the Court called this case “an example of the importance of a summary judgment movant meeting its initial burden when filing a summary judgment motion, the importance of designating evidence that will assist it in negating an element of the non-movant’s claim, and demonstrating the absence of any genuine issue of material fact.” And in this case, while Mundia would have to prove the case within the case to prevail at trial, she did not have to do so to survive summary judgment.

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. Specifically, Drendall contends that Mundia’s underlying claims were “not viable under the ITCA” and that “the fact that [she] had no chance to prevail in her case is dispositive because it prevents her from proving that Drendall’s conduct proximately caused her alleged loss.” In so arguing, Drendall is attempting to shift the burden onto Mundia by arguing that she, on summary judgment, is required to prove the elements of proximate cause and damages. Indeed, during the summary judgment hearing, the trial court, too, seemed to place the burden onto Mundia. The trial court stated that Mundia, “as in any legal malpractice case, . . . “ha[d] to prove the case within the case” and that she “ha[d] to prove that it was a winnable case before [she] c[ould] find Mr. Drendall did something to ruin [her] chance to win.” While this would be Mundia’s burden at trial, it is not her burden on summary judgment.

In this case, the evidence Drendall presented in support of his motion did not preclude the possibility of settlement outside of trial. Drendall argued “that the possibility of settlement should not be considered as a part of Mundia’s damages because she did not designate any specific evidence to show that the Prosecutor’s Office or the Police Department would have considered settlement of her claims.” But the Court found that this argument improperly shifted the burden to Mundia; Drendall had to affirmatively negate this possibility to obtain summary judgment.

Lessons:

  1. In a legal malpractice case, proximate cause may be shown by the possibility of settlement in the underlying case, even if the underlying defendant is immune.
  2. A defendant who is moving for summary judgment must negate any possible proximate cause of any possible damage.