Brenda L. White v. Macey & Swanson LLP (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 23, 2019
• Docket: 18A-CT-2854
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 23 2019, 8:41 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Brenda L. White Crystal G. Rowe Indianapolis, Indiana Kightlinger & Gray, LLP New Albany, Indiana

Louis J. Britton Kightlinger & Gray, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brenda L. White, September 23, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-2854 v. Appeal from the Marion Superior Court Macey & Swanson LLP, The Honorable Gary L. Miller, Appellee-Defendant. Judge Trial Court Cause No. 49D03-1703-CT-9677

Barnes, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 1 of 9 Statement of the Case [1] Brenda L. White appeals the trial court’s grant of summary judgment to Macey

& Swanson LLP (M&S). We affirm.

Issue [2] The primary issue is whether the trial court erred in granting summary

judgment to M&S.

Facts and Procedural History [3] In 1995, White filed complaints at the Indiana Worker’s Compensation Board

against two temporary services agencies. She claimed that she was exposed to

dangerous chemicals while she was working at jobs she obtained through the

temp agencies, and the chemicals harmed her.

[4] In 1998, White hired Richard Swanson of M&S to represent her in the worker’s

compensation cases. He negotiated a settlement agreement with the temp

agencies in 1999. White received $1,000 from each agency, and the parties

stipulated to the dismissal of both cases. The Board accepted the stipulations

and issued final judgments in both cases.

[5] In 2011, White filed a complaint with the Indiana Supreme Court Disciplinary

Commission against Swanson. She alleged that she had continued to

experience harm from the chemical exposure and that Swanson had failed to

provide adequate representation in the worker’s compensation cases. The

Commission dismissed her complaint with no further action. White filed

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 2 of 9 additional, similar complaints against Swanson in 2013 and 2017, and the

Commission also dismissed them.

[6] The current case began on March 10, 2017, when White filed a civil complaint

against Swanson under Cause Number 49D03-1703-CT-9677 (CT-9677),

alleging malpractice arising out of Swanson’s representation in the worker’s

compensation cases. Swanson filed a motion for summary judgment, which the

trial court granted on January 12, 2018. White filed a motion to correct error,

which the trial court denied.

[7] On March 1, 2018, Swanson filed a notice of chapter 7 bankruptcy filing. On

March 6, 2018, White filed a notice of appeal, initiating a case in this Court

under Cause Number 18A-CT-437. That case is being held in abeyance while

Swanson’s bankruptcy case proceeds.

[8] Meanwhile, on May 3, 2018, White filed a complaint against M&S in CT-9677,

alleging malpractice arising out of the firm’s representation in the worker’s

compensation cases. M&S filed a motion for summary judgment, asserting that

White’s claim was barred by the applicable statute of limitation. Next, White

filed a one-page motion asking the trial court to toll or waive the statute of

limitation. The trial court denied White’s motion and held oral argument on

M&S’s motion for summary judgment. On November 1, 2018, the trial court

granted M&S’s motion for summary judgment and entered judgment in favor of

M&S. This appeal followed.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 3 of 9 Discussion and Decision 1. Procedural Default [9] M&S argues that White has waived appellate review of her claims because her

appellant’s brief fails to comply with the Indiana Rules of Appellate Procedure.

Pro se litigants are held to the same legal standards as licensed attorneys. Basic

v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). “We will not become an

‘advocate for a party, or address arguments that are inappropriate or too poorly

developed or expressed to be understood.’” Id. at 984 (quoting Perry v.

Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans.

denied). While we prefer to decide issues on the merits, where an appellant’s

noncompliance with the Appellate Rules is so substantial as to impede our

consideration of the issues, we may deem the alleged errors waived. Id.

[10] Indiana Appellate Rule 46 governs the arrangement and contents of appellate

briefs. Specifically, Appellate Rule 46(A)(2) states that all appellant’s briefs

must contain a table of authorities, as follows: “The table of authorities shall

list each case, statute, rule, and other authority cited in the brief, with references

to each page on which it is cited. The authorities shall be listed alphabetically

or numerically, as applicable.” In addition, Appellate Rule 46(A)(4) requires an

appellant to provide a statement of issues, which “shall concisely and

particularly describe each issue presented for review.” Appellate Rule 46(A)(5)

provides that an appellant’s brief shall include a statement of the case, which

“shall briefly describe the nature of the case, the course of the proceedings

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 4 of 9 relevant to the issues presented for review and the disposition of these issues by

the trial court . . . .”

[11] Next, Appellate Rule 46(A)(6) requires an appellant to state the “facts relevant

to the issues presented for review,” “in narrative form.” Finally, Appellate

Rule 46(A)(8) mandates the inclusion of an argument section, subject to the

following relevant requirements:

(a) The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.

(b) The argument must include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues. In addition, the argument must include a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any Administrative Agency or trial court.

[12] White’s appellant’s brief fails to comply with any of these requirements. The

brief’s table of authorities is a discussion of White’s health history and

interactions with Swanson, rather than a list of cases, statutes, and other

authorities. In fact, the brief does not contain any citations to statutes or cases.

[13] In addition, the brief’s statement of issues more closely resembles a statement of

facts, continuing to describe White’s health history and interactions with Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 5 of 9 Swanson, without any citations to the record. Next, the brief’s statement of the

case does not provide any information about the trial court proceedings. White

instead discusses Swanson’s bankruptcy case and her request for relief from

M&S. Our discussion of the procedural history of this case, as set forth above,

is drawn entirely from the appellee’s brief.

[14] Next, the appellant brief’s statement of facts, which consists of four lines of text

with no citations to the record, contains nothing but inappropriate argument:

Richard Swanson did breach our agreement. He was negligent in not allowing me to see the Eli Lilly Doctor to treat and test me with the proper chemicals. He refused to contact the doctor after I gave him the message from the doctor. Ultimately, the sensitivities has caused irreparable damage that has affected the immune system.

Appellant’s Br. p. 5.

[15] Finally, the argument section of White’s brief is inadequate, consisting of only

two sentences and lacking any reference to the standard of review or citations to

authority. The brief fails to make clear that this is an appeal from a grant of

summary judgment.

[16] White’s noncompliance with Appellate Rule 46 is so substantial and

fundamental that it has impeded our consideration of her malpractice claim.

The appellee’s brief provided the factual and procedural history that White’s

brief lacks, but M&S’s brief does not excuse her noncompliance. Addressing

White’s malpractice claim would require this Court to review the record and

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 6 of 9 research the law on her behalf, which we will not do. She has waived appellate

review of her claim. See Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 730 (Ind.

Ct. App. 2009) (claim waived for failure to cite adequate authority; appellant

cited only two cases on child support claim, both addressing standard of review

rather than the merits).

2. Summary Judgment – Statute of Limitation [17] Although White has waived review of her malpractice claim, we choose to

address the statute of limitation issue that M&S raised in its motion for

summary judgment. Orders for summary judgment are reviewed de novo and

require this Court to apply the same standard of review that the trial court uses.

AM Gen. LLC v. Armour, 46 N.E.3d 436, 439 (Ind. 2015). A party moving for

summary judgment must designate evidence showing 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.” Ind. Trial Rule 56(C). Upon this showing, the nonmoving

party then has the burden to designate evidence demonstrating that there is a

genuine issue of material fact. AM Gen., 46 N.E.3d at 439. We view the

designated evidence in the light most favorable to the nonmoving party. Neff v.

Wal-Mart Stores E., LP, 113 N.E.3d 666, 670 (Ind. Ct. App. 2018), trans. denied.

[18] A lawsuit for an “injury to person or character,” including legal malpractice,

must be commenced within two years after the cause of action accrues. Ind.

Code § 34-11-2-4 (2013); see also Estate of Spry v. Batey, 804 N.E.2d 250, 252

(Ind. Ct. App. 2004), trans. denied. The cause of action of a tort claim accrues

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 7 of 9 and the statute of limitation begins to run when the plaintiff knew or, in the

exercise of ordinary diligence, could have discovered that an injury had been

sustained as a result of the tortious act of another. Keep v. Noble Cty. Dep’t of

Pub. Welfare, 696 N.E.2d 422, 425 (Ind. Ct. App. 1998), trans. denied.

[19] White, through M&S attorney Swanson, settled her worker’s compensation

cases in 1999. At some point, White’s negative health effects from her exposure

to chemicals failed to resolve, or they became more severe, and she determined

Swanson should have sent her to a different doctor for consultation or

treatment. The record establishes she believed Swanson had tortiously caused

her harm at least as early as 2011, when she filed a disciplinary complaint

against him. Despite believing in 2011 that Swanson and his firm had harmed

her, White failed to file suit against M&S for approximately seven years, well

beyond the two-year statute of limitation.

[20] White argues that the statute of limitation did not expire until April 30, 2019,

but she cites to no evidence or authority in support of that argument. We

conclude White’s malpractice claim against M&S is barred by the statute of

limitation, and the trial court did not err in granting M&S’s motion for

summary judgment. See Dickes v. Felger, 981 N.E.2d 559, 563 (Ind. Ct. App.

2012) (legal malpractice claim barred by statute of limitation; clients discovered

attorneys’ alleged neglect in 2006 but waited almost three years to file suit).

Conclusion [21] For the reasons stated above, we affirm the judgment of the trial court.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 8 of 9 [22] Affirmed.

Najam, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2854 | September 23, 2019 Page 9 of 9