MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 13 2017, 8:18 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Larry Warren Crystal G. Rowe Pendleton, Indiana Kightlinger & Gray, LLP New Albany, Indiana Louis J. Britton Kightlinger & Gray, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Warren, September 13, 2017 Appellant-Plaintiff, Court of Appeals Case No. 49A04-1606-CT-1498 v. Appeal from the Marion Superior Court Carl L. Epstein, The Honorable Appellee-Defendant. Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-1408-CT-26532
Kirsch, Judge.
[1] Larry Warren (“Warren”) appeals the trial court’s order granting summary
judgment in favor of Carl L. Epstein (“Epstein”) in Warren’s action against
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 1 of 7 Epstein for legal malpractice. Warren raises the following issue for our review:
whether the trial court erroneously granted summary judgment and determined
that no genuine issues of material fact existed.
[2] We affirm.
Facts and Procedural History [3] Warren was charged with several counts of Class A felony child molesting and
Class D felony child solicitation. Warren was acquainted with Epstein because
Epstein had previously defended Warren’s brother in an unrelated criminal
matter. In April 2010, Warren and Epstein entered into a Retainer Agreement
for legal representation, which included an agreed flat fee for attorney services
of $20,000 with Warren to additionally pay all case-related expenses. Appellee’s
App. Vol. II at 35. Epstein entered an appearance for, and began representing,
Warren in the criminal matter.
[4] In July 2012, the attorney-client relationship began to break down, and on July
5, 2012, Epstein filed a motion to withdraw as Warren’s counsel, which was
denied by the trial court. On July 6, 2012, Epstein and Warren exchanged
email communications, and in his response, Warren informed Epstein that,
“This is notice that I am terminating you effective immediately for ineffective
counsel.” Id. at 38. On July 9, 2012, Epstein filed a second motion to
withdraw, explaining the breakdown of the attorney-client relationship, and the
trial court granted the motion to withdraw. The trial court then found Warren
to be indigent, appointed a public defender to represent him, and continued the
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 2 of 7 date of the jury trial. That trial date was later continued twice more, to
December 13, 2012. A few days before the December trial date, Warren’s
appointed public defender withdrew because Warren had hired private defense
counsel to represent him at trial. At the conclusion of his jury trial, Warren was
found guilty of three counts of Class A felony child molesting and two counts of
Class D felony child solicitation and was sentenced to eighty years. Warren
appealed, and this court remanded to the trial court for resentencing. Warren
was resentenced to an aggregate seventy years.
[5] On or after July 7, 2014,1 Warren mailed to the trial court his complaint for
legal malpractice against Epstein, pro se appearance, verified petition for waiver
of filing fees and costs, and an accompanying affidavit of indigency. On July
16, 2014, the trial court issued an order waiving Warren’s fees and court costs.
Subsequently, on August 8, 2014, this legal malpractice action was commenced
according to the CCS. Id. at 2. On January 25, 2016, Epstein filed a motion for
summary judgment, arguing, among other things, that Warren’s complaint was
barred by the governing two-year statute of limitations. On June 2, 2016, after
a hearing on the motion, the trial court granted summary judgment to Epstein.
Warren now appeals.
1 Although Warren’s pleadings contain the date of July 3, 2014 as the date of mailing, we note that the affidavit attached to the pleadings was not notarized until July 7, 2014. Appellant’s App. Vol. II at 11-13.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 3 of 7 Discussion and Decision [6] Warren argues that the trial court erred in granting summary judgment in favor
of Epstein. When reviewing the grant of summary judgment, our standard of
review is the same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973
N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg.
Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We
stand in the shoes of the trial court and apply a de novo standard of review. Id.
(citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)).
Our review of a summary judgment motion is limited to those materials
designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833
N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is
appropriate only where the designated evidence shows there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter
of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it
bears on the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173.
We view the pleadings and designated materials in the light most favorable to
the non-moving party. Id. Additionally, all facts and reasonable inferences
from those facts are construed in favor of the non-moving party. Id. (citing
Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App.
2005), trans. denied).
[7] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. FLM, 973
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 4 of 7 N.E.2d at 1173. We will affirm upon any theory or basis supported by the
designated materials. Id.
[8] The statute of limitations for a legal malpractice action is two years. Ind. Code
§ 34-11-2-4; Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind. Ct.
App. 2003), trans. denied. “Under the continuous representation doctrine, 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, Inc., 791 N.E.2d at 765. Additionally, 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 diligence could have discovered, that he had sustained an
injury as the result of the tortious act of another.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 13 2017, 8:18 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Larry Warren Crystal G. Rowe Pendleton, Indiana Kightlinger & Gray, LLP New Albany, Indiana Louis J. Britton Kightlinger & Gray, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Larry Warren, September 13, 2017 Appellant-Plaintiff, Court of Appeals Case No. 49A04-1606-CT-1498 v. Appeal from the Marion Superior Court Carl L. Epstein, The Honorable Appellee-Defendant. Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-1408-CT-26532
Kirsch, Judge.
[1] Larry Warren (“Warren”) appeals the trial court’s order granting summary
judgment in favor of Carl L. Epstein (“Epstein”) in Warren’s action against
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 1 of 7 Epstein for legal malpractice. Warren raises the following issue for our review:
whether the trial court erroneously granted summary judgment and determined
that no genuine issues of material fact existed.
[2] We affirm.
Facts and Procedural History [3] Warren was charged with several counts of Class A felony child molesting and
Class D felony child solicitation. Warren was acquainted with Epstein because
Epstein had previously defended Warren’s brother in an unrelated criminal
matter. In April 2010, Warren and Epstein entered into a Retainer Agreement
for legal representation, which included an agreed flat fee for attorney services
of $20,000 with Warren to additionally pay all case-related expenses. Appellee’s
App. Vol. II at 35. Epstein entered an appearance for, and began representing,
Warren in the criminal matter.
[4] In July 2012, the attorney-client relationship began to break down, and on July
5, 2012, Epstein filed a motion to withdraw as Warren’s counsel, which was
denied by the trial court. On July 6, 2012, Epstein and Warren exchanged
email communications, and in his response, Warren informed Epstein that,
“This is notice that I am terminating you effective immediately for ineffective
counsel.” Id. at 38. On July 9, 2012, Epstein filed a second motion to
withdraw, explaining the breakdown of the attorney-client relationship, and the
trial court granted the motion to withdraw. The trial court then found Warren
to be indigent, appointed a public defender to represent him, and continued the
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 2 of 7 date of the jury trial. That trial date was later continued twice more, to
December 13, 2012. A few days before the December trial date, Warren’s
appointed public defender withdrew because Warren had hired private defense
counsel to represent him at trial. At the conclusion of his jury trial, Warren was
found guilty of three counts of Class A felony child molesting and two counts of
Class D felony child solicitation and was sentenced to eighty years. Warren
appealed, and this court remanded to the trial court for resentencing. Warren
was resentenced to an aggregate seventy years.
[5] On or after July 7, 2014,1 Warren mailed to the trial court his complaint for
legal malpractice against Epstein, pro se appearance, verified petition for waiver
of filing fees and costs, and an accompanying affidavit of indigency. On July
16, 2014, the trial court issued an order waiving Warren’s fees and court costs.
Subsequently, on August 8, 2014, this legal malpractice action was commenced
according to the CCS. Id. at 2. On January 25, 2016, Epstein filed a motion for
summary judgment, arguing, among other things, that Warren’s complaint was
barred by the governing two-year statute of limitations. On June 2, 2016, after
a hearing on the motion, the trial court granted summary judgment to Epstein.
Warren now appeals.
1 Although Warren’s pleadings contain the date of July 3, 2014 as the date of mailing, we note that the affidavit attached to the pleadings was not notarized until July 7, 2014. Appellant’s App. Vol. II at 11-13.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 3 of 7 Discussion and Decision [6] Warren argues that the trial court erred in granting summary judgment in favor
of Epstein. When reviewing the grant of summary judgment, our standard of
review is the same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973
N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg.
Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We
stand in the shoes of the trial court and apply a de novo standard of review. Id.
(citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)).
Our review of a summary judgment motion is limited to those materials
designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833
N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is
appropriate only where the designated evidence shows there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter
of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it
bears on the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173.
We view the pleadings and designated materials in the light most favorable to
the non-moving party. Id. Additionally, all facts and reasonable inferences
from those facts are construed in favor of the non-moving party. Id. (citing
Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App.
2005), trans. denied).
[7] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. FLM, 973
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 4 of 7 N.E.2d at 1173. We will affirm upon any theory or basis supported by the
designated materials. Id.
[8] The statute of limitations for a legal malpractice action is two years. Ind. Code
§ 34-11-2-4; Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind. Ct.
App. 2003), trans. denied. “Under the continuous representation doctrine, 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, Inc., 791 N.E.2d at 765. Additionally, 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 diligence could have discovered, that he had sustained an
injury as the result of the tortious act of another. Id.
[9] In the present case, the attorney-client relationship between Epstein and
Warren ended on July 9, 2012, on the date that the trial court granted Epstein’s
motion to withdraw as Warren’s counsel. Warren, therefore, had until July 9,
2014 to commence his legal-malpractice action. Epstein based his motion to
withdraw on Warren’s allegations of Epstein’s ineffectiveness and attempts to
terminate Epstein as his attorney on July 6, 2012. Appellee’s App. Vol. II at 44.
Warren’s email on July 6 shows that he was aware at that time of his alleged
legal malpractice claim since he asserted that Epstein provided ineffective
assistance of counsel to him. Id. at 38-39, 85.
[10] Under Indiana Trial Rule 3,
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 5 of 7 A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.
Indiana Trial Rule 5(F) explains in detail what constitutes filing and when
filings are deemed to have occurred. It provides in pertinent part: “The filing
of pleadings, motions, and other papers with the court as required by these rules
shall be made by one of the following methods: . . . (3) Mailing to the clerk by
registered, certified or express mail return receipt requested.” Ind. Trial Rule
5(F). The rule further states: “Filing by registered or certified mail and by
third-party commercial carrier shall be complete upon mailing or deposit. Any
party filing any paper by any method other than personal delivery to the clerk
shall retain proof of filing.” Id.
[11] Therefore, generally, when a party sends the pleadings by an independently
verifiable means, like registered mail or third-party carrier, the filing is deemed
to have occurred upon mailing or deposit. Dowell v. State, 922 N.E.2d 605, 609
(Ind. 2010). However, when other means are used, filing occurs on the date the
filing is received by the clerk. Id. “The principle of the mailbox rule2 has been
applied under [Trial] Rule 5 only when the court is satisfied that the prisoner
2 Under the prison mailbox rule, a pro se incarcerated litigant who delivers a notice of appeal to prison officials for mailing on or before the due date accomplishes a timely filing. Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). Here, Warren was not delivering a notice of appeal, but rather a civil complaint.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 6 of 7 had employed certified mail, return receipt requested, and deposited his mailing
in the institutional mail pouch by or before the filing deadline, notwithstanding
the fact that the postmark reflected a date after the deadline. Id.
[12] Here, Warren used regular mail, tendering his complaint on either July 3 or
July 6, 2014. He did not employ certified mail, return receipt requested.
Therefore, his complaint was deemed filed on the date it was received in the
clerk’s office, August 8, 2014, which is after the limitation period had expired,
and not on the date of mailing as Warren claims. Warren’s complaint for legal
malpractice was not filed within the statute of limitations and, therefore, is time
barred.3 The trial court did not err in granting summary judgment in favor of
Epstein.
[13] Affirmed.
Najam, J., and Brown, J., concur.
3 Although under the continuous representation doctrine, the statute of limitations commences at the end of an attorney’s representation of a client in the same matter in which the alleged malpractice occurred, Biomet, Inc. v. Barnes & Thorn burg, 791 N.E.2d 760, 765 (Ind. Ct. App. 2003), which made the date the statute of limitations began to run as July 9, 2012, Warren argues for the first time in his reply brief that he did not discover Epstein’s alleged malpractice until June 2014. “‘The law is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.’” Tramill v. Anonymous Healthcare Provider, 37 N.E.3d 553, 556 n.2 (Ind. Ct. App. 2015) (quoting Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005)), trans. denied. Because Warren did not raise this issue in his Appellant’s Brief, this issue is waived.
Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1498 | September 13, 2017 Page 7 of 7