Picadilly, Inc. v. Raikos
555 N.E.2d 167
Ind. Ct. App.
1990
Check Treatment

*1 PICADILLY, INC., Appellant

(Plaintiff Below),

Gustin J. RAIKOS Dennis L.

Thomas, Jr., Appellees

(Defendants Below).

No. 41A01-8908-CV-311. Appeals

Court of

First District.

June Conour,

W. F. Baker, Rex E. Conour Doehrman, Indianapolis, appellant. Lorenz, John Jeffrey T. Doty, Kight- A. linger Gray, Indianapolis, & appellees. ROBERTSON, Judge. Appellant-plaintiff (Picadil- Picadilly, Inc. ly) appeals granting judg- appellee-defendants in favor of Gus- (Raikos tin Raikos and Dennis Thomas Thomas).

We affirm. This action shop arose from a dram claim against Picadilly in responsible injuries held suffered Charles Colvin in an automobile accident driver, with a drunk patronized who had *2 168 may not be appeal and unassignable, home this ly she drove before

Picadilly's bar has not had Although Indiana The full facts maintained. car. Colvin's collided with legal malprac Inc. v. Colvin decide whether Picadilly, to at occasion forth are set that deci- jurisdic In assignable, 1217. Ind., N.E.2d are (1988), 519 tice claims court the assigning court vacated sion, prohibit supreme which have. Those tions jury upheld and nature of appeals' peculiar cite the claims punitive awarding Colvin (as opposed verdict malpractice attorney for claims $150,000. held that It in the amount professions, among other malpractice to jury instruction in the error Ryan see, v. eg. Essex surveyors, like waived, evidence was and damages was 368). They N.E.2d Ind.App., 446 (1988), con- Picadilly's malicious show to sufficient argue Id. convincing evidence. by clear and duct trust element of preserve need to client, could attorney and a com- 1986, Picadilly filed October, In a attorney perceives if the impaired be Thom- and attorneys Raikos against plaint assignment client's future threat in the dram Picadilly as, represented who legal a adversary of stranger or a to proper exercise trial, for failure shop Similarly, counsel malpractice claim. - "including but Picadilly, defending in care vig- pursuing from discouraged might be preserve properly a failure limited to not or her advocacy on behalf orous improper the Court's any objection alienate the advocacy might if that client In No- damages." instructions someday moti- be might adversary, who sum- entered 1988, trial court vember, mal- attorney legal sue the vated to in and Thomas Raikos mary judgment rights. assignment under an practice en- Prior to the motion. to their response please an attorney might also seek An handed court judgment, try of expense of at employer-insurer March, id., Colvin, in v. down interest, if the best insured's summary judgment, Shortly after someday turn might employer fears Bankrupt- 1988, December, States a United a of action to malpractice cause its over confirming Pica- an order cy entered Court Finally, if party. third under reorganization dilly's plan sold, the in- bought and could claims bankruptcy. As Chapter 11 malprac- be raised result evitable Picadilly listed plan, part of premiums. insurance tice claim claim, provided that and damage Cal.App.3d $5,000 by a discharged (1989), in full 210 Rogers would be & Wells v. Jackson allowance payment accord, cash 454; 6, Cal.Rptr. 258 33 Ill.App.3d claim, (1980) 83 $15,000 II unsecured class v. Jones Christison 33 Picadilly's malpractice to Colvin transfer 8; 560, Moor 405 Ill.Dec. 39 Thomas. Raikos and claim (1985), Mich. Ins. v. Ambassador house 219; H.N. Schroeder 383 N.W.2d judgment App. from is This P.2d (1984), Ariz. Hudgins being the sole Picadilly, with genuine issue a remained there whether whether respecting fact material seem decisions as these persuasive As Pi- damage to negligence neys' parties third assignments arena of cadilly. the Maine with agree we generally, raise a Thomas Attorneys Casualty Com- v. Continental Thurston address. must which we threshold in which Me., A.2d pany did that rationale held that the court as Attorneys Raikos where in its case result same justify the interest party the real sert assigned its corporation insolvent Picadilly transfer Colvin, to whom Charles liability products a claim to pursuant red its cause asserted apparently who and be plan, reorganization bankruptcy corporation: general- claims claim cause We hold first that there is no reason to action for attorney negligence. Sanders v. prohibit mal- Townsend App., Ind. 509 N.E.2d 860. practice claim in a situation such as specific error cited Picadilly in its this. We are not here confronted with complaint is its attorneys' object failure to the establishment *3 general market to an instruction read to the jury puni on claims; for such this assignee has an tive damages which failed to set forth a intimate connection with the underlying willful and wanton conduct, standard Although lawsuit. some cases from oth- and its attorneys' failure to tender a cor er jurisdictions flatly prohibit the assign- rect instruction. any legal malpractice claim, their reasoning persuasive. is not The burden is on prove argument that legal services person- that it would not have suffered a al and involve confidential attorney-client damage verdict had Raikos and relationships does not justify preventing objected to the erroneous instruction or a client like 3K from realizing the value tendered acorrect instruction. Hockett v. of malpractice claim in may what be Breunig Ind.App., the most way efficient possible, namely, (Shields, J., concurring). Raikos and Thom to someone else with a as reason that because the supreme court clear interest in the claim who also has decided there was evidence to sufficient time, energy and resources bring support finding a by malice clear and the suit. convincing evidence, there gen remains no Thurston, 923, (citations 567 A.2d at omit- uine issue of material fact on the elements ted). Although corporation had surren- proximate cause or damages. proper A dered all its assets to major creditor, a ly-instructed jury would have returned a was evident that the assignment to the verdict damages. products liability plaintiff was pursuant not any plan formal resulting from a bank- For reasons which find support in ruptcy petition. Nevertheless, we believe Judge Shields' concurring opinion in Hock- the same reasoning applies in the instant ett, id., and cases in jurisdictions, we case, where Picadilly's carefully formulat- conclude that Raikos and Thomas have sue- plan ed of reorganization includes a trans- cessfully negated essential elements of Pi- fer malpractice of its claim to Colvin. But cadilly's claim, which Picadilly has failed to Christison, supra. It especially seems of. Hockett, controvert. In Hockett's attorney just here to allow Colvin to assert his claim conceded that Hockett's case where the action has already brought been depend would on the in result of Picadilly's name, Hockett's and has developed been appeal from the denial factually discovery process by Pica- dilly. Deciding post-conviction a rather narrow issue relief alleging plea sole- his was involuntary because ly he relied peculiar facts, advice of these we hold that lawyers his representing that transfer Picadilly's the State's cause of action to: Chapter plan via a against case reorganiza- him stronger was than it actu tion, does not any cireumvent established ally was. The appeal unsuccessful, was law in against assignments, such and the court of appeals held that Hockett and does not do violence to policy con- could show he would not have been prohibiting siderations assignments. incarcerated but for attorney's advice, his Accordingly, proceed we to review the since the record demonstrated the volun- judgment from which Picadilly appeals. plea. Judge tariness of his Shields have decided that In because party attorney may be held liable to his whom the preclu client for doctrine of result ing from his failure to exercise ordinary asserted, Hockett, sion was had a full and care, diligence. skill and fair opportunity litigate Breach of that the issue of the duty, combined with damages proximately plea, voluntariness of his then that same breach, completes issue raised in a different proceeding could a cause of in its squarely the issue Picadilly presented him. Id. asserted, resolved brief. appellate properly-in- that submits Picadilly also preclusion of issue use The defensive far less have awarded jury could structed (1980), 86 v. Tieman upheld Gillion did, and because damages than the Ill.Dec. App.3d Ill. a trial must be there possibility, of that case, lodged a Gillion that 1146. In damages-the measure determine rep what difference proceeding juvenile resenting her in orig- award, the amount jury would an unfit she was found the court Picadilly overlooks jury awarded. inal appeal attorney neglected Her mother. damages: measure proper Illinois ruling, but on *4 and de- punish which will serve amount corpus, habeas a writ of on Supreme Court Nate v. in the conduct the ter issue future. the constitutional held that court the 408 N.E.2d (1980), Ind.App., Galloway had she which right her of Picadil- that jury decided the Once irrelevant, record the where was presented it neces- punishment, deserved ly's conduct finding court's the trial supported amply deter- Picadilly's wealth sarily looked In the unfit mother. was an Gillion that figure. Id. appropriate an mine action, trial court the ensuing Therefore, connection the causal of Gil in favor summary judgment granted conduct and Thomas's Raikos because, Illinois Su by the attorney, lion's more is even of amount decision, appeal would an preme Court's dam- award of Showing that an tenuous. had ar Gillion successful. not have been have been the ages against the that opposite conclusion, for the gued See Sand- Picadilly's burden. is also less because successful have been appeal would Ind.App., 509 (1987), Townsend ers v. meet its burden failed to the state N.E.2d 860. convincing and by clear showing unfitness

evidence. sum argues that Picadilly Finally, because inappropriate was mary judgment has not Gillion, Picadilly In contrast not foreclose complaint did Picadilly's evidence sufficiency of the argued that the Thom and in Raikos omissions showing punitive and errors Picadilly v. Colvin the led to Picadilly that bearing on as's defense have damages would erroneously court the trial large judgment; action. of its outcome the incorrect only the issue on focused stated, a determination Yet, have as we Yet, opponent instruction. ques- sufficiency the evidence may summary judgment determine motion damages will tion of made in allegations upon the bare rely omissions Thomas' whether the mo where judgment to avert issue damage. pleadings That Picadilly any his entitle Picadilly in has established proponent decided tion's was v. supreme ment to Durakool requested relief. The N.E.2d 1217. v. Ind.App., (1981), Displacements Mercury that held, to an issue response 680; Dwyer sup- Shideler forth, record that Picadilly set higher Ind. damages by ported oppor- Hence, Picadilly had the standard. reasons, we hold foregoing For litigate the fairly fully and tunity to in es- succeeded have Raikos and use of The appeal. presented it which to summa- they entitled tablishing that befitting here even more preclusion ry judgment. Gillion, @illion, because than was affirmed. Judgment decision, court's issue, was precluded the basis MILLER, J., concurs. constitutional bypassing after reached J., in result with BAKER, concurs of Gillion's the basis had been issue which Here, opinion. separate review. under corpus action habeas BAKER, Judge. encourage unjustified lawsuits members of the legal profession, gener- While I concur with majority's affir- ate an in legal increase malpractice litiga- mation of the decision, trial court's I have tion, promote champerty and force grave regarding concerns the wisdom of neys to defend opening themselves Pandora's box of strangers. endless complications claims. and litigious intricacies arising out of The majority acknowledges the sound such commercial place activities would persuasive nature of the numerous de- undue burden on not only the legal pro- cisions which hold that assignment fession but already ju- overburdened malpractice claims is void as against public system, dicial restrict the availability of policy. Relying on Thurston v. Continen- competent legal services, embarrass tal Casualty Me., Co. 567 A.2d attorney-client relationship imperil majority nonetheless finds assign- the sanctity of the highly confidential ment is valid and appropriate in this case. and fiduciary relationship existing be- disagree I and dissent on this issue for two tween attorney and client. reasons. Goodley, supra, 62 Cal.App.3d at First, I agree with weight of authori *5 Cal.Rptr. at 87. If such a change is to be ty that type this of assignment should not levied profession on the and the public, "[T)he be allowed. unique quality of then only our court, services, entity personal nature of the attor with exclusive constitutional authority ney's duty to the client and the confiden over matters, these tiality of the attorney-client relationship should make the decision. . invoke public policy considera [broad] Second, even if I believed we should al tions." Goodley Wank, v. Wank & Inc. assignment low of malpractice claims, (1976), 62 Cal.App.3d 389, 397, 133 Cal. I would not do so in this disagree case. I Rptr. 87. real substance of a "[Thhe with the majority's reliance Thurston, malpractice action is a client's claim that supra, because I find the reasoning in that his personal breached his duty decision inherently flawed. In Thurston, and trust to by that client failing to exer here, as losing assigned defendant cise requisite degree of care and skill malpractice claim to the plaintiff. victorious by failing or give to the utmost loyalty and As Raikos and point out, Thomas this re fidelity to the client's interests." Christi quires plaintiff change to position son v. Jones App.3d 334, 338, 83 Ill. by degrees prosecute malprac 560, 563, 39 Ill.Dec. best, tice claim. At unsettling that a The attorney-client relationship, fidu- position Colvin's have the clary role attorney, regula- opportunity, essence, mount a collat tion attorneys of are eral attack great judgment matters of pub- in his favor lie concern. The by suing lawyers Constitution of our represented State who his exclusive, entrusts original jurisdiction opponent. defeated worst, At the result Thurston Supreme and here the Indiana practice will lead to a Court over matters relating practice to the of law. defeated defendants routinely of assign ing legal malpractice VII, (meritorious Const. art. believe, I claims or as did the § court, Goodley allowing assign- otherwise) as a means avoiding of or defer legal malpractice of claims would ring payment judgments against them.' possibilities abuse, manipulation 1. The peal argued denied. The insurer attorneys profession as well as harm public to the negligently failed to settle a claim which subsequently it serves, litigated adversely to the cus- limitless. In a recent virtually decision, Appeals Michigan Court of position. disal- tomer's contrary The court held that a bring lowed an excess insurer to "would saying be tantamount one of its customer's defense at- attorneys insurance defense do not owe their duty subrogation loyalty on a representation and zealous tormeys American theory. Employer's Ins. Co. v. Medical Protective Co. insured client alone ... and would contradict Mich.App. ap- personal N.W.2d attorney-client nature of the rela- will lead time, practice this I fear Over I dis majority and

exactly that assignment market open

dain: claims.1 the threshold dissent

I therefore claim. holding that majority's with I concur granted properly the trial on the

judgment preclusion.

basis ULRICH, Appellant M.

Peter Below),

(Defendant Indiana, Appellee

STATE Below). (Plaintiff

No. 46A03-9002-CV-48. Appeals of

Court District.

Third LaPorte, pro Ulrich, appellant 11, 1990. June Peter M. se. 23, Aug. Rehearing Denied Pearson, and David Atty. Gen.

Linley E. Gen., In- Atty. Wallman, Deputy Michael appellee. dianapolis, Judge. HOFFMAN, Presiding appeals M. Ulrich se Peter pro Appellant license. teacher's revocation January that on indicate facts Education Indiana State Board Superintendent recommendation appellant's revoked Instruction of Public LaPorte August On license. re- judicial Superior Court the State affirmed agency view of revocation. See Education's Board Ed.). (1988 seq. et 4-21.5-5-1 IND.CODE § occur, be- [I] Were this premiums. Id., Mich.App. at ceived tionship." to fear attorneys also come contrary "would would that defense A lieve N.W.2d . defense to sue relation- encourage excess insurers attacks, attorney-client Id., disgrun- they Mich. jeopardy." put ship whenever neys at 448-49. N.W.2d App. at 660-61. policies to limits of having pay within tled they re- for which they contracted