Ariel Dalton and B.S., by next friend Dalton, Appellants-Plaintiffs v. Daniel Cueller and The Cueller Law Office, Appellees-Defendants (2026)

MEMORANDUM DECISION

Case Summary

[1] Daniel Cueller and The Cueller Law Office (collectively, “Attorney Cueller”) represented Ariel Dalton and her child, B.S., by next friend Dalton (collectively, “Dalton”), in a lawsuit that was eventually dismissed for failure to prosecute. Dalton then sued Attorney Cueller for legal malpractice. The trial court granted summary judgment to Attorney Cueller, and Dalton now appeals. Because Dalton makes no argument that she would have prevailed in the underlying lawsuit, we affirm.

Facts and Procedural History

[2] In November 2022, Dalton, represented by Attorney Cueller, filed a complaint for damages in Madison Circuit Court against the City of Edgewood, the Edgewood Police Department, and two police officers. See Cause No. 48C04-2211-CT-168. The complaint alleged excessive force under 42 U.S.C. § 1983.

[3] A telephonic pretrial conference was held on May 19, 2023, and the parties appeared by counsel. The trial court set a jury trial for February 25, 2025, almost two years out, and ordered that “[i]nitial witness and exhibit lists shall be exchanged no later than 90 days from today's date”—that is, by August 17, 2023. Appellees’ App. Vol. 2 p. 51. Attorney Cueller, however, did not exchange any lists by that deadline.

[4] Over two months after that deadline, on November 1, 2023, Attorney Cueller sent a letter to Dalton notifying her that he was withdrawing because of a breakdown in communication between them:

This letter serves to inform you that I am withdrawing from your case because there has been a breakdown in communication between us. I cannot adequately represent you when this occurs. I am required to notify you of my withdrawal and wait ten (10) day[s] before formally doing so with the Court.

Once my withdrawal is approved by the Court, the Court office will inform you directly regarding your case. There are no hearings scheduled for your case at this time. I have enclosed a copy of my withdrawal that will be filed with the Court on November 11, 2023. Should you wish that I continue to represent you, it is imperative that you contact my office. If you plan on proceeding with your case, I encourage you to find new counsel.

I wish you the best of luck and that you have the u[t]most success with resolving your case.

Id. at 56. On November 10, Attorney Cueller moved to withdraw his appearance, noting that he had sent the above letter to Dalton's “last known address,” a P.O. Box in Anderson. Id. at 57. The trial court granted the withdrawal on November 15. Dalton did not secure new counsel.

[5] There was no activity on the CCS until April 8, 2024, when the defendants moved to dismiss for failure to prosecute. See Ind. Trial Rule 41(E) (“Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff's costs if the plaintiff shall not show sufficient cause at or before such hearing.”). The defendants asserted that they had sent discovery requests to Dalton's P.O. Box in Anderson in February 2024, but the mailing was returned as “not deliverable as addressed” and “unable to forward.” Appellees’ App. Vol. 2 p. 124. The trial court set a hearing on the motion to dismiss for May 10, 2024. Dalton did not appear at the hearing, and the trial court dismissed the case with prejudice. On June 10, Dalton, who learned of the dismissal on mycase.IN.gov and was proceeding pro se, appealed. We affirmed. See Dalton v. Edgewood Police Dep't, No. 24A-CT-1369, 2024 WL 4891598, *2 (Ind. Ct. App. Nov. 26, 2024) (mem.), trans. denied, cert. denied.

[6] On February 10, 2025, Dalton, still pro se, filed a complaint in Marion Superior Court against Attorney Cueller for legal malpractice, alleging that he had failed to “meet critical deadlines,” which resulted in the dismissal of her Section 1983 lawsuit. Complaint, Cause No. 49D12-2502-CT-6604 (Feb. 10, 2025). Dalton's complaint doesn't allege any facts related to the alleged excessive-force incident. See id. The parties later filed cross-motions for summary judgment. In his summary-judgment motion, Attorney Cueller invoked the trial-within-a-trial doctrine, which governs claims for legal malpractice. See Appellants’ App. Vol. 2 pp. 46-47. At the hearing, Attorney Cueller reiterated that he was entitled to summary judgment because Dalton had failed to prove “the case within the case”—i.e., but for his alleged failure to exchange the witness and exhibit lists, Dalton would have prevailed in her Section 1983 lawsuit. Tr. pp. 23, 28, 31. To establish that she would have prevailed, Dalton sought to introduce a flash drive containing video footage and newspaper articles. Id. at 14-15, 36. Attorney Cueller objected, and the trial court did not admit the flash drive. See Order, Case No. 25A-CT-2946 (Ind. Ct. App. Jan. 21, 2026). The court granted summary judgment to Attorney Cueller.

[7] Dalton, still pro se, now appeals.

Discussion and Decision

[8] Dalton contends that the trial court erred in granting summary judgment to Attorney Cueller. We review a motion for summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R. 56(C).

[9] The elements of a legal-malpractice action are: (1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff. Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010). A defendant is entitled to summary judgment when the undisputed material facts negate at least one element of the plaintiff's legal-malpractice claim. Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006).

[10] To prove proximate cause and damages in a legal-malpractice case, the plaintiff must satisfy the trial-within-a-trial doctrine. “Under [that] doctrine, a client alleging legal malpractice must prove not only that the lawyer's conduct fell below the governing duty of care but also that the client would have prevailed had the lawyer not been negligent.” Roumbos v. Vazanellis, 95 N.E.3d 63, 64 (Ind. 2018). On appeal, Dalton makes no argument that, but for Attorney Cueller's alleged failure to exchange the witness and exhibit lists, she would have prevailed in her Section 1983 lawsuit. See id. at 66 (“Thus, Roumbos must prove she would have recovered damages against the hospital in the underlying premises-liability claim had the firm timely sued on her behalf.”). Dalton doesn't set forth the elements of a Section 1983 claim or any facts related to the alleged excessive-force incident. In fact, she fails to tell us when or where it occurred or what happened. See Appellees’ Br. p. 24 (pointing out that Dalton doesn't “even” claim on appeal that her Section 1983 claim is “meritorious”). Although Dalton sought to introduce evidence of the incident below, the trial court excluded it. Dalton does not challenge that evidentiary ruling on appeal, and the issue is therefore waived. See Ind. Appellate Rule 46(A)(8)(a). Because there are no facts—much less disputed facts—for the proximate-cause and damages elements of Dalton's legal-malpractice claim, we affirm the trial court's grant of summary judgment to Attorney Cueller.

[11] Affirmed.

Vaidik, Judge.

Bailey, J., and Scheele, J., concur.