MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 14 2019, 9:52 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE David W. Stone IV Anthony C. Lawrence Anderson, Indiana Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. French, June 14, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-PL-2385 v. Appeal from the Madison Circuit Court Jeffrey A. Lockwood, The Honorable Carl Van Dorn, Appellee-Defendant. Senior Judge Trial Court Cause No. 48C03-1805-PL-63
Najam, Judge.
Statement of the Case [1] Anthony French appeals the trial court’s entry of summary judgment for Jeffrey
Lockwood on French’s complaint for damages. French presents a single issue
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 1 of 6 for our review, namely, whether his complaint alleging legal malpractice is
barred by the applicable statute of limitations. We affirm.
Facts and Procedural History [2] In February 2010, French hired Lockwood to represent him in a post-
conviction proceeding. French paid Lockwood a retainer fee of $24,981.25.
On September 23, 2011, Lockwood filed both an appearance with the post-
conviction court and French’s petition for post-conviction relief. Thereafter,
Lockwood did nothing on French’s behalf, and Lockwood did not maintain
contact with French. Accordingly, in June 2015, French wrote Lockwood a
letter stating that he was “prepared to file a civil law suit” against Lockwood if
Lockwood did not either “work [his] case or refund [his] money” within fifteen
days of the date of the letter. Appellant’s App. Vol. II at 77. After French
received no response to his letter, he filed a complaint against Lockwood with
the Indiana Supreme Court Disciplinary Commission. 1 French then hired
another attorney, who filed an appearance with the post-conviction court on
February 5, 2016. On February 19, 2016, Lockwood filed with the post-
conviction court his motion for leave to withdraw his appearance for French.
[3] On February 21, 2018, French filed a complaint against Lockwood alleging
legal malpractice. On June 4, Lockwood filed a motion to dismiss under
Indiana Trial Rule 12(B)(6) alleging that French’s complaint was barred by the
1 According to French, in March 2016, the Disciplinary Commission dismissed his complaint against Lockwood.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 2 of 6 applicable two-year statute of limitations. On July 30, the trial court held a
hearing on Lockwood’s motion to dismiss. The court permitted the parties to
introduce evidence at the hearing and converted the motion to dismiss to a
motion for summary judgment. On August 27, the trial court granted summary
judgment in favor of Lockwood. This appeal ensued.
Discussion and Decision [4] French contends that the trial court erred when it granted summary judgment in
favor of Lockwood. 2 The Indiana Supreme Court has explained that
[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate ‘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 judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[5] The statute of limitations for a claim of legal malpractice is two years. Ind.
Code § 34-11-2-4 (2018). Legal malpractice actions are subject to the
“discovery rule,” which provides that the statute of limitations does not begin to
run until such time as the plaintiff knows, or in the exercise of ordinary
2 Here, at the hearing on Lockwood’s motion to dismiss, French asked the trial court whether he could call witnesses to testify on his behalf. Lockwood objected and stated that he did not want his motion to dismiss to be converted to a summary judgment motion. The trial court permitted French to call witnesses over Lockwood’s objection. Accordingly, the motion to dismiss was converted to a summary judgment motion. Ind. Trial Rule 12(B).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 3 of 6 diligence could have discovered, that he had sustained an injury as the result of
the tortious act of another. Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760,
765 (Ind. Ct. App. 2003), trans. denied. For a cause of action for legal
malpractice to accrue, it is not necessary that the full extent of damage be
known or even ascertainable, but only that some ascertainable damage has
occurred. Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App. 2016), trans.
denied.
[6] Here, in June 2015 French wrote Lockwood a letter stating in relevant part that
he was “prepared to file a civil law suit” against Lockwood. Appellant’s App.
Vol. II at 77. And on August 30, 2015, French filed a complaint against
Lockwood with the Disciplinary Commission seeking an investigation into
Lockwood’s alleged failure to communicate with French. Accordingly, as of
August 30, 2015, at the latest, French knew that he had sustained an injury as a
result of Lockwood’s conduct, and the two-year statute of limitations began to
run. See Biomet, 791 N.E.2d at 765. However, French did not file his legal-
malpractice complaint against Lockwood until February 21, 2018, well more
than two years later. Accordingly, under the discovery rule, French’s complaint
was time-barred as a matter of law.
[7] Still, French contends that his complaint was timely filed under the continuous
representation doctrine. The continuous representation doctrine is “an
exception to [the] discovery rule” and provides that “the statute of limitations
does not commence until the end of an attorney’s representation of a client in
the same matter in which the alleged malpractice occurred.” Biomet, 791
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 4 of 6 N.E.2d at 765, 767. “In a situation where the attorney continues to represent
the client in the same matter in which the alleged malpractice occurred, the date
of accrual begins at the termination of an attorney’s representation of a client in
the same matter in which the alleged malpractice occurred.” Id. at 767
[8] The attorney-client relationship is consensual. See Douglas v. Monroe, 743
N.E.2d 1181, 1184 (Ind. Ct. App. 2001). As such, absent an agreement to the
contrary, either the attorney or the client may unilaterally terminate the
relationship by withdrawing his consent at any time. Here, the evidence shows
that the attorney-client relationship between French and Lockwood had broken
down as early as June or July of 2011, when Lockwood last had any
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 14 2019, 9:52 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE David W. Stone IV Anthony C. Lawrence Anderson, Indiana Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony W. French, June 14, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-PL-2385 v. Appeal from the Madison Circuit Court Jeffrey A. Lockwood, The Honorable Carl Van Dorn, Appellee-Defendant. Senior Judge Trial Court Cause No. 48C03-1805-PL-63
Najam, Judge.
Statement of the Case [1] Anthony French appeals the trial court’s entry of summary judgment for Jeffrey
Lockwood on French’s complaint for damages. French presents a single issue
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 1 of 6 for our review, namely, whether his complaint alleging legal malpractice is
barred by the applicable statute of limitations. We affirm.
Facts and Procedural History [2] In February 2010, French hired Lockwood to represent him in a post-
conviction proceeding. French paid Lockwood a retainer fee of $24,981.25.
On September 23, 2011, Lockwood filed both an appearance with the post-
conviction court and French’s petition for post-conviction relief. Thereafter,
Lockwood did nothing on French’s behalf, and Lockwood did not maintain
contact with French. Accordingly, in June 2015, French wrote Lockwood a
letter stating that he was “prepared to file a civil law suit” against Lockwood if
Lockwood did not either “work [his] case or refund [his] money” within fifteen
days of the date of the letter. Appellant’s App. Vol. II at 77. After French
received no response to his letter, he filed a complaint against Lockwood with
the Indiana Supreme Court Disciplinary Commission. 1 French then hired
another attorney, who filed an appearance with the post-conviction court on
February 5, 2016. On February 19, 2016, Lockwood filed with the post-
conviction court his motion for leave to withdraw his appearance for French.
[3] On February 21, 2018, French filed a complaint against Lockwood alleging
legal malpractice. On June 4, Lockwood filed a motion to dismiss under
Indiana Trial Rule 12(B)(6) alleging that French’s complaint was barred by the
1 According to French, in March 2016, the Disciplinary Commission dismissed his complaint against Lockwood.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 2 of 6 applicable two-year statute of limitations. On July 30, the trial court held a
hearing on Lockwood’s motion to dismiss. The court permitted the parties to
introduce evidence at the hearing and converted the motion to dismiss to a
motion for summary judgment. On August 27, the trial court granted summary
judgment in favor of Lockwood. This appeal ensued.
Discussion and Decision [4] French contends that the trial court erred when it granted summary judgment in
favor of Lockwood. 2 The Indiana Supreme Court has explained that
[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate ‘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 judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[5] The statute of limitations for a claim of legal malpractice is two years. Ind.
Code § 34-11-2-4 (2018). Legal malpractice actions are subject to the
“discovery rule,” which provides that the statute of limitations does not begin to
run until such time as the plaintiff knows, or in the exercise of ordinary
2 Here, at the hearing on Lockwood’s motion to dismiss, French asked the trial court whether he could call witnesses to testify on his behalf. Lockwood objected and stated that he did not want his motion to dismiss to be converted to a summary judgment motion. The trial court permitted French to call witnesses over Lockwood’s objection. Accordingly, the motion to dismiss was converted to a summary judgment motion. Ind. Trial Rule 12(B).
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 3 of 6 diligence could have discovered, that he had sustained an injury as the result of
the tortious act of another. Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760,
765 (Ind. Ct. App. 2003), trans. denied. For a cause of action for legal
malpractice to accrue, it is not necessary that the full extent of damage be
known or even ascertainable, but only that some ascertainable damage has
occurred. Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App. 2016), trans.
denied.
[6] Here, in June 2015 French wrote Lockwood a letter stating in relevant part that
he was “prepared to file a civil law suit” against Lockwood. Appellant’s App.
Vol. II at 77. And on August 30, 2015, French filed a complaint against
Lockwood with the Disciplinary Commission seeking an investigation into
Lockwood’s alleged failure to communicate with French. Accordingly, as of
August 30, 2015, at the latest, French knew that he had sustained an injury as a
result of Lockwood’s conduct, and the two-year statute of limitations began to
run. See Biomet, 791 N.E.2d at 765. However, French did not file his legal-
malpractice complaint against Lockwood until February 21, 2018, well more
than two years later. Accordingly, under the discovery rule, French’s complaint
was time-barred as a matter of law.
[7] Still, French contends that his complaint was timely filed under the continuous
representation doctrine. The continuous representation doctrine is “an
exception to [the] discovery rule” and provides that “the statute of limitations
does not commence until the end of an attorney’s representation of a client in
the same matter in which the alleged malpractice occurred.” Biomet, 791
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 4 of 6 N.E.2d at 765, 767. “In a situation where the attorney continues to represent
the client in the same matter in which the alleged malpractice occurred, the date
of accrual begins at the termination of an attorney’s representation of a client in
the same matter in which the alleged malpractice occurred.” Id. at 767
[8] The attorney-client relationship is consensual. See Douglas v. Monroe, 743
N.E.2d 1181, 1184 (Ind. Ct. App. 2001). As such, absent an agreement to the
contrary, either the attorney or the client may unilaterally terminate the
relationship by withdrawing his consent at any time. Here, the evidence shows
that the attorney-client relationship between French and Lockwood had broken
down as early as June or July of 2011, when Lockwood last had any
communication with French, and there is no evidence that Lockwood did
anything on French’s behalf to represent him in the PCR proceeding
thereafter. Indeed, it was Lockwood’s failure to communicate with French that
caused French to file a complaint with the Disciplinary Commission in 2015.
And French hired a new attorney, Daniel Whitehead, who filed his appearance
with the PCR court on February 5, 2016. Thus, it appears that French
terminated the attorney-client relationship with Lockwood as early as 2015 or,
at the latest, by February 5, 2016.
[9] But French maintains that Lockwood continued to represent him even after
French had hired Whitehead. At the summary judgment hearing, French
stated as follows: “Lockwood never ever made a motion to withdraw his
appearance on my case until February of 2016. So he was my attorney o[f]
record until then. So I have not missed my time period to file a suit against
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 5 of 6 him.” Tr. at 11. Thus, while French does not acknowledge having fired
Lockwood, by French’s own admission the attorney-client relationship
terminated, at the latest, on February 19, 2016, when Lockwood filed his
motion for leave to withdraw his appearance.
[10] In his brief on appeal, French asserts that his complaint filed on February 21,
2018, was timely under the continuous representation doctrine. We cannot
agree. French filed his complaint on February 21, 2018, which was two years
and two days after the latest possible date that his attorney-client relationship
with Lockwood had terminated. Thus, French’s complaint was untimely as a
matter of law. The trial court did not err when it entered summary judgment
for Lockwood on French’s complaint.
[11] Affirmed.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2385 | June 14, 2019 Page 6 of 6