Lacey Fowler, Appellant-Plaintiff v. Sandra Moreno Garcia, Appellee-Defendant (2026)

MEMORANDUM DECISION

[1] Lacey Fowler sued her former dissolution attorney, Sandra Moreno Garcia, for legal malpractice. Fowler alleged that in the two months following the entry of her final dissolution decree, Garcia never prepared or submitted a Qualified Domestic Relations Order (QDRO), a document needed to secure Fowler's court-awarded share of her ex-husband's pension. Because her ex-husband died before any QDRO was submitted, Fowler's claim to the pension was denied.

[2] The trial court granted Garcia's motion for summary judgment, and Fowler appeals. On appeal, the parties dispute the admissibility of Fowler's designated evidence and whether it raises genuine issues of material fact. Even if we do not consider the allegedly inadmissible portions of Fowler's designated evidence, we find that Garcia did not carry her high burden as the summary judgment movant to affirmatively negate an element of Fowler's claim. We reverse and remand.

Facts

[3] Fowler retained Garcia in October 2021 to represent her in the dissolution of her marriage to Corey Fowler. By May of 2022, Corey was representing himself in the dissolution proceedings and had stopped paying the mortgage, appearing for hearings, and exercising parenting time with his and Fowler's daughter.

[4] On October 6, 2022, the trial court entered a final dissolution decree. Among other things, the decree awarded Fowler and Corey portions of each other's pension or retirement accounts as follows:

The Court awards Husband 50% of Wife's TIAA retirement account. However, Husband's portion of said retirement account shall first be offset by any amounts owed to Wife that are not covered by Husband's net proceeds. Wife's Counsel shall submit a notice to the Court for approval before filing the proposed QDRO.

The Court awards to Wife 50% of the coverture value of the Husband's pension to be paid via Qualified Domestic Relations Order.

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IT IS FURTHER ORDERED that Wife is awarded fifty (50%) percent of the Husband's Laborer's Pension Fund accrued during the coverture of the marriage via Qualified Domestic Relations Order.

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IT IS FURTHER ORDERED that Husband is awarded one-half of Wife's TIAA retirement account via QDRO. However, Husband's portion of Wife's account shall be first offset by any amounts outlined above that are not satisfied by Husband's portion of the net proceeds. Wife's Counsel shall file a notice with the Court outlining the calculations and the amount of any offset from the TIAA account before the approval of any QDRO.

App. Vol. II, pp. 137-39. The decree did not set any deadline for the preparation of these QDROs. The decree also noted that Corey “has exercised no parenting time due to [his] addiction.” Id. at 137.

[5] A little over a month later, on November 9, 2022, Garcia filed a notice of offsets based on the proceeds from the sale of the marital home. On that same day, Corey died. The parties agree that his death appeared to be caused by an overdose.

[6] A few weeks later, on November 29, 2022, Fowler emailed Garcia about the QDROs. Garcia responded that she had not prepared them yet. Fowler soon ended their attorney-client relationship after informing Garcia that she planned to hire a new attorney.

[7] Fowler later sued Garcia for legal malpractice based on her failure to prepare a QDRO during the period of her representation. Fowler alleged that, because no QDRO was presented to the pension fund at the time of Corey's death, “the pension fund refused to honor the QDRO, giving the entire pension to [Fowler's] daughter.” Id. at 10. Fowler further alleged that, in December 2022, her new attorney “filed an appeal of the denial” with the pension plan administrator, but it was denied. Id. at 10.

[8] Garcia moved for summary judgment. In support of that motion, she designated the affidavit of attorney Debra Dubovich, a long-time family law attorney, to attack the breach and causation elements of Fowler's malpractice claim. Attorney Dubovich opined that common practice is for a QDRO to be “drafted and entered months (sometimes longer) after the entry of the final dissolution decree” and to be first sent to “the pension board for pre-approval” before filing with the court. Id. at 132. Attorney Dubovich also opined that a “trial court retains jurisdiction to enter a QDRO after the death of one of the parties.” Id. Attorney Dubovich concluded that Garcia acted within the standard of care and common practice, including her decision to focus on selling the marital home “due to Ms. Fowler's priorities and financial bind over drafting the QDRO.” Id. at 133.

[9] As to causation, Attorney Dubovich attested that Fowler had other options to obtain her share of the pension “but failed to do so.” Id. Based on her review of the docket, Attorney Dubovich opined that Fowler had not filed any motions to enforce the subsequently drafted QDRO. Therefore, Attorney Dubovich concluded that Garcia's actions or inactions were “not the proximate cause of [Fowler's] alleged damages” but rather Fowler's own inaction caused her damages. Id.

[10] Also included with Garcia's summary judgment motion were various filings from the dissolution proceedings and designated portions of the transcript of Garcia's deposition. In that deposition, Garcia stated that, following the dissolution decree, she focused her work on selling the marital home so that the offsets could first be calculated. Garcia stated that she had no concerns for Corey's health, and she was not worried about the implications of his death because she believed there was caselaw, some of it from Indiana, recognizing that a QDRO could still be enforced despite the death of a participant. Garcia was also asked about an article on QDROs from the Res Gestae magazine—a publication by the Indiana State Bar Association—and she agreed with the article's statement that it is advisable to “seek pre-approval” from the plan administrator before submitting a QDRO to the court. Id. at 82.

[11] In response to Garcia's motion for summary judgment, Fowler designated two affidavits. The first was from attorney David Mirkin. He attested that he had been licensed since 1983, had handled more than 250 divorce cases often involving QDROs, and had reviewed the pleadings and correspondence in Fowler's case. He opined that Garcia “breached the Standard of Care by failing to expedite the submission of an approved QDRO” and by never preparing or submitting one to either the pension administrator or the court during her representation, even though Garcia had the pension plan's QDRO drafting guidelines since May 2022. Id. at 147. According to Attorney Mirkin, Fowler “lost the benefit of fifty-percent (50%) of her coverture share” of Corey's pension “[a]s a consequence of the breach of the Standard of Care.” Id. at 148. Attorney Mirkin also opined that Fowler “took reasonable steps to mitigate the damages caused by Sandra Moreno Garcia” by submitting a QDRO to the pension. Id.

[12] In one portion of the affidavit, Attorney Mirkin identified and attached an article on QDROs from Res Gestae magazine and “agree[d] with the statements and analysis therein.” Id. at 147. He opined that the article was “recognized as Authority by lawyers practicing in the field of Domestic Relations” and that the standard of care for handling QDROs was “consistent with” the Res Gestae article. Id.

[13] The second affidavit was from Fowler herself. In it, she averred that Garcia should have known of Corey's drug condition and poor health “as early as May 22, 2022,” because Corey had stopped paying the mortgage, visiting with their child, and attending court hearings. Id. at 150. Therefore, Fowler averred that Garcia knew about “the necessity of getting the QDRO approved by the Pension Fund as soon as possible.” Id. Fowler also stated that the extent of Garcia's involvement with the sale of the home was minimal and limited only to obtaining another lawyer to stand in for Corey to sign the deed, while Fowler herself negotiated the sale to a neighbor. Finally, Fowler attested that the fund denied her later-submitted QDRO “because no contact was ever made with the Pension Fund regarding a QDRO until after Corey's death.” Id. The denial letter Fowler received from the pension fund was attached to her affidavit.

[14] The trial court granted summary judgment to Garcia on October 28, 2025.¹ It found that Fowler's affidavit was “rife with inadmissible hearsay and legal conclusions,” the pension denial letter was “unsworn and unverified,” and Attorney Mirkin's affidavit was “based apparently upon the unsworn letter cited above and a 2024 Res Gestae magazine article.” Id. at 174.² The order then stated, “Even ignoring the expert testimony,” before quoting the provision of the dissolution decree that granted Corey 50% of Fowler's TIAA account and required a notice of offsets before filing the proposed QDRO. Id. at 175.

[15] The court concluded that it was “not a breach of the standard of care, as a matter of law, that Garcia's draft of the QDRO she submitted to the pension administrator was rejected” in the two months between the dissolution and Fowler's discharge of Garcia. Id. The court also noted that a QDRO may be entered and enforced long after a decree, citing Ryan v. Janovsky, 999 N.E.2d 895, 898 (Ind. Ct. App. 2013), in which a QDRO was entered and enforced 21 years after dissolution. Finally, the court found that Fowler's failure to pursue further enforcement of the QDRO was the “sole cause of any damages.” App. Vol. II, p. 175.

[16] Fowler filed a motion to correct error, raising numerous alleged errors. She claimed that the trial court erred by ignoring Attorney Mirkin's affidavit. She also argued that the order contained factual errors: (1) that Garcia had drafted a QDRO, when the evidence undisputedly showed that she never prepared one at all; and (2) that the dissolution decree required a notice of offset before filing the QDRO, when that requirement only applied to Corey's share of Fowler's TIAA account, not Fowler's share of Corey's pension. The court denied Fowler's motion to correct error, and Fowler appeals.

Discussion and Decision

[17] We review a trial court's summary judgment determination de novo, applying the same standard as the trial court. Aegean LLC v. Taggart Ins. Ctr., Inc., 263 N.E.3d 171, 175 (Ind. Ct. App. 2025), trans. denied. We view all evidence and reasonable inferences in the light most favorable to the non-moving party. Id.

[18] The party moving for summary judgment (here, Garcia) has the initial burden of “making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Shorewood Forest Utilities, Inc. v. Welsh, 237 N.E.3d 1142, 1146 (Ind. Ct. App. 2024). If the movant meets that burden, then the nonmoving party (here, Fowler) “must come forward with evidence establishing the existence of a genuine issue of material fact.” Id.

[19] Indiana's summary judgment standard is deliberately more demanding than its federal counterpart, requiring the movant to bear the “more onerous burden” to “affirmatively negate an opponent's claim.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Id. at 1004. Summary judgment is not appropriate “merely because the non-movant appears unlikely to prevail at trial.” Id. at 1005 (citation omitted).

[20] Fowler's legal malpractice claim required her to prove four things: (1) a duty by Garcia that arose as a result of her employment by Fowler; (2) a breach of that duty by failing to exercise ordinary skill and knowledge; (3) proximate cause; and (4) damages. See Welsh, 237 N.E.3d at 1147. Garcia, as the summary judgment movant, was required to affirmatively negate at least one element. See id. In her motion, Garcia attempted to negate only breach and causation.

I. Breach

[21] “Whether a particular act or omission is a breach of duty is generally a question of fact.” Oxley v. Lenn, 819 N.E.2d 851, 856 (Ind. Ct. App. 2004). Expert testimony is usually required to establish the standard of care. Id. at 857. Breach can become a question of law when the facts are undisputed and only a single inference can be drawn from them. Id. at 856. However, summary judgment is rarely appropriate in negligence-based cases like malpractice because they are “particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.” Id. at 856-57 (quoting Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)).

[22] Here, Fowler and Garcia each presented expert affidavits stating opposite facts and conclusions on breach. Attorney Dubovich opined that Garcia acted within the standard of care because QDROs are often prepared months after a dissolution decree. Attorney Mirkin, on the other hand, opined that Garcia breached the standard of care by failing to expedite the QDRO or ever submit one to the pension or the court. Thus, the parties presented contradictory expert evidence on the standard of care and breach. A competent affidavit that contradicts the movant's designated evidence on a material fact defeats summary judgment, even if that affidavit is “perfunctory and self-serving.” Hughley, 15 N.E.3d at 1004.

[23] However, Garcia contends that Attorney Mirkin's affidavit should be disregarded in full because it relies on unsworn statements: the Res Gestae article and the pension's denial letter. In ruling on a summary judgment motion, the trial court can only consider material deemed appropriate by Indiana Trial Rule 56(E). This rule requires affidavits “be made on personal knowledge, ․ set forth such facts as would be admissible in evidence, and ․ show affirmatively that the affiant is competent to testify to the matters stated therein.” T.R. 56(E). Generally, “a court will not consider unsworn and unverified attachments in opposition to a motion for summary judgment.” Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind. Ct. App. 2002).

[24] Fowler responds that Attorney Mirkin's statements are admissible under Indiana Evidence Rule 803(18), which provides a learned treatise exception to the rule against hearsay. Garcia disagrees about the applicability of that rule to affidavits. But assuming without deciding that the Res Gestae article and denial letter are inadmissible, and setting aside those attachments and the references to them, the remainder of Attorney Mirkin's affidavit meets the requirements of Trial Rule 56(E) and can be considered. See Duncan, 764 N.E.2d at 766-67 (considering remainder of affidavit without unsworn attachments and inadmissible statements).

[25] Attorney Mirkin's affidavit contains his qualifications and credentials, his independent review of the case, and his opinion that Garcia breached the standard of care. Attorney Mirkin attested that, in his over 30 years of practice, he had worked on over 250 divorce cases, many of which involved QDROs. He opined that, after his review of Fowler's case materials, Garcia breached the standard of care. He cited specific actions: Garcia received the pension plan's guidelines for QDRO drafting in May 2022, the dissolution decree was finalized in October 2022, and Garcia failed to expedite approval of the QDRO or ever submit one to the court or the pension plan before she was discharged in December 2022.

[26] Attorney Mirkin's statements—grounded in the facts of the case, his personal review of the matter, and his family law experience—provide more than bare conclusory assertions and do not merely repeat the opinions of others. See Thomsen v. Musall, 713 N.E.2d 900, 900-01 (Ind. Ct. App. 1999) (finding attorney's averments that “I complied with the standard of care” and “I did not cause any harm” were bare conclusions untethered to facts and insufficient for summary judgment); Est. of Benefiel ex rel. Benefiel v. Wright Hardware Co., 128 N.E.3d 485, 491 (Ind. Ct. App. 2019) (noting that expert must rely on expertise in reaching an opinion and cannot merely repeat opinions of others).

[27] Though removing the references to the Res Gestae article means Attorney Mirkin did not explicitly set forth a stand-alone standard of care, a standard was clearly implied from the remainder of his statements about Garcia's failure to expedite the QDRO or draft one in the months following her receipt of the pension's guidelines. See Korakis v. Mem. Hosp. of South Bend, 225 N.E.3d 760, 766 (Ind. 2024) (finding, in context of medical malpractice, that affidavit containing affiant's credentials, detailed judgment about the case, and statement that treatment fell below standard of care was sufficient to “enable the court to infer the standard of care” without “undue speculation”).

[28] Again, at this procedural juncture, we must “liberally construe all designated evidentiary matter in favor of the nonmoving party and resolve any doubt against the moving party.” Oxley, 819 N.E.2d at 856. And whether Attorney Mirkin's affidavit is actually persuasive goes to the weight of the evidence, which is not an appropriate inquiry for summary judgment. See Hughley, 15 N.E.3d at 1005-06 (noting that weighing opposing affidavits, “no matter how decisively the scales may seem to tip,” is a matter for trial, not summary judgment).

[29] We are also unpersuaded by Garcia's citation to Ryan, 999 N.E.2d 895, to support her claim that Attorney Mirkin's opinion was contrary to case law. Garcia also claims this case “supports [her] actions regarding the slight delay in the preparation of the QDRO.” Appellee's Br., p. 16. In Ryan, a QDRO was enforced on appeal even though it was filed 21 years after the dissolution. 999 N.E.2d at 900-01. But the case did not address a claim of legal malpractice or the death of a participant before the filing of a QDRO. Simply because the QDRO was enforced despite the delay in that case does not establish, as a matter of law, that Garcia's slight delay here met the standard of care under the specific facts of this case.

[30] Additionally, Fowler's own affidavit adds to the genuine dispute as to breach. Garcia claims this affidavit was inadmissible because it is “base[d] on the unsworn and unverified opinion statements contained within [the denial] letter.” Appellee's Br., p. 19. However, only one sentence of Fowler's affidavit references the letter. The affidavit otherwise contains Fowler's own recollection of events. See T.R. 56(E) (requiring personal knowledge); Evid. R. 701 (permitting lay witness to testify to opinion if it is helpful and “rationally based on the witness's perception”). For example, Fowler attested that Garcia was aware of Corey's addiction and declining condition because he had stopped paying the mortgage, visiting with their daughter, and appearing in court. She also disputed Garcia's explanation for her delay—her focus on the sale of the marital home—by stating that Garcia merely found an attorney to stand in for Corey, while Fowler negotiated the sale herself.

[31] In sum, even with the challenged statements and attachments removed from consideration, Fowler designated enough evidence to survive summary judgment. At this stage of the proceedings, Fowler's evidence need not have been particularly strong, and she was not required to prove the elements of her case. See Hughley, 15 N.E.3d at 1005 (finding non-movant's designated evidence “rather thin” but “enough to preclude summary judgment”); Mundia v. Drendall L. Off., P.C., 77 N.E.3d 846, 855 (Ind. Ct. App. 2017) (noting that requiring the non-movant to prove her claim at the summary judgment stage flips the burden).

[32] Finally, we reject Garcia's argument that the dissolution decree made it practically impossible to submit a QDRO before Corey's death. She points to the decree's provision requiring a notice of offset before submitting “any” QDRO, and she notes that Corey died on the day that she submitted that notice. App. Vol. II, p. 139. However, this offset prerequisite was stated only in the provisions setting out Corey's share of Fowler's TIAA account, and there was no equivalent language in the provisions regarding Fowler's portion of Corey's pension. We “resolve any doubt against the moving party.” Oxley, 819 N.E.2d at 856.

[33] Therefore, we conclude that Garcia failed to meet her burden of affirmatively negating the breach element of Fowler's legal malpractice claim. Under Indiana's liberal standard, summary judgment is not appropriate “merely because the non-movant appears unlikely to prevail at trial.” Hughley, 15 N.E.3d at 1005 (citation omitted). Accordingly, though a fact-finder may not be convinced that Garcia's conduct constituted a breach, genuine issues of material fact preclude summary judgment.

II. Causation

[34] Proximate cause in a legal malpractice case is a “but for” requirement: the client-plaintiff must show the underlying result would have been different but for the attorney's conduct. Gates v. O'Connor, 111 N.E.3d 215, 224 (Ind. Ct. App. 2018). “Proximate cause is generally a question of fact and left to the jury.” Mundia, 77 N.E.3d at 855 (emphasis in original). “Only in plain and indisputable cases, where only a single inference or conclusion can be drawn,” is it decided as a matter of law. Id.

[35] Each party essentially points to a different link in the chain of events as the proximate cause. Fowler's complaint—and her responsive designated evidence—alleges that Garcia's failure to prepare a QDRO during her representation caused Fowler's loss of her share of the pension benefit. See App. Vol. II, p. 147 (Attorney Mirkin's attestation that “because of [Garcia's] lack of diligence,” Fowler lost her share of the pension). On the other hand, Garcia contends that Fowler's failure to file a motion to enforce the subsequently drafted QDRO was the cause of her alleged damages, rather than Garcia's actions or inactions.

[36] Garcia curiously claims that she is entitled to summary judgment because “Attorney Mirkin's affidavit only addressed the issue of mitigation of damages not causation.” Appellee's Br., p. 18. First, we note that “[t]here can be multiple proximate causes of a resulting event.” Funston v. Sch. Town of Munster, 849 N.E.2d 595, 600 (Ind. 2006). Second, we find it was actually Garcia, not Fowler, who focused on mitigation of damages instead of causation. Mitigation of damages refers to a plaintiff's obligation to “mitigate post-injury damages.” Humphrey v. Tuck, 151 N.E.3d 1203, 1208 (Ind. 2020) (emphasis added). When a plaintiff fails to do so, the recoverable damages are reduced, but liability is not affected. Id.

[37] Garcia's designated evidence addresses Fowler's conduct after the denial of her share of the pension, contending that this post-loss conduct was the sole cause of the loss.³ Garcia essentially claims that Fowler could have recovered her share of the pension through motions to enforce. This is an argument as to mitigation of damages and not causation. Even if we were to construe Garcia's argument as addressing causation, Fowler's responsive designated evidence was sufficient to create a genuine question of material fact on this element.

[38] Therefore, we conclude that Garcia failed to meet her burden of affirmatively negating the causation element of Fowler's legal malpractice claim.

Conclusion

[39] Garcia did not carry her heavy burden of affirmatively negating any element of Fowler's legal malpractice claim. The designated evidence—even excluding the allegedly inadmissible statements and unsworn attachments—raises genuine issues of material fact. Because our summary judgment standard “consciously errs on the side of letting marginal cases proceed to trial” and requires every reasonable inference to be made in favor of the non-movant, we find that summary judgment was improper here. Hughley, 15 N.E.3d at 1004. We reverse and remand for further proceedings.

FOOTNOTES

1.   We observe that the chronological case summary shows that a summary judgment hearing occurred on October 27, 2025; however, Fowler's notice of appeal affirmatively declined to request transcription of the hearing, and Garcia never acted to cure that omission.

2.   The order did not specify the trial court's disposition of these affidavits—whether they were excluded in whole or in part or considered by the court.

3.   Garcia made no argument that Fowler's conduct constituted a superseding, intervening cause.

Weissmann, Judge.

Tavitas, C.J., and Foley, J., concur.