William Stillwell and Penelope Stillwell v. Cohen & Malad LLP, Irwin B. Levin, Gregory L. Laker, Daniel S. Chamberlain, and Does 1 through 7, inclusive (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 4, 2020
• Docket: 19A-CT-2814
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 04 2020, 10:31 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANTS PRO SE ATTORNEYS FOR APPELLEES William Stillwell Michelle A. Spahr Penelope Stillwell Peter A. Schroeder Clearwater Beach, Florida Norris Choplin Schroeder LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William Stillwell and June 4, 2020 Penelope Stillwell, Court of Appeals Case No. Appellants-Plaintiffs, 19A-CT-2814 Appeal from the Marion Superior v. Court The Honorable P.J. Dietrick, Cohen & Malad LLP, Judge Irwin B. Levin, Gregory L. Trial Court Cause No. Laker, Daniel S. Chamberlain, 49D12-1904-CT-17404 and Does 1 through 7, inclusive, Appellees-Defendants,

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 1 of 11 Case Summary and Issue [1] William and Penelope Stillwell (collectively, “the Stillwells”) filed a legal

malpractice lawsuit against Cohen & Malad, LLP, Irwin Levin, Gregory Laker,

and Daniel Chamberlain (collectively, the “Defendants”). Defendants filed a

motion for judgment on the pleadings, in which they argued the Stillwells’

claims were barred by the statute of limitations. Following a hearing, the trial

court granted the motion. The Stillwells appeal raising six issues which we

consolidate and restate as one: whether the trial court erred in granting

Defendants’ motion for judgment on the pleadings. Concluding the trial court

did not err because the Stillwells’ claims are barred by the statute of limitations,

we affirm.

Facts and Procedural History [2] In August 2011, the Stillwells retained Chamberlain to represent them in a slip

and fall/amputation injury case.1 The parties signed a contingency fee

agreement entitling Chamberlain to one-third of any recovery. A lawsuit was

filed against the underlying defendants – Eagle-Kirkpatrick Management

Company, Inc., Kirkpatrick Management Company, Inc., G.T. Services, Inc.

d/b/a Green Touch Services, Inc., and Sycamore Springs Homeowners

Association, and Section C Homeowners Association, Inc. – in Marion

1 William was the physically injured party and Penelope pursued a claim for loss of consortium.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 2 of 11 Superior Court. In 2014, Chamberlain became a partner at the law firm Cohen

& Malad, LLP and the Stillwells agreed to allow Chamberlain to continue to

represent them. Chamberlain assigned his rights to recover attorney fees and

expenses under the contract to Cohen & Malad.

[3] In the fall of 2016, the parties reached a settlement pursuant to which the

underlying defendants agreed to pay the Stillwells $200,000. The parties signed

a memorandum of understanding formalizing their settlement agreement but

continued to negotiate to resolve issues of possible third-party interests in the

settlement amount. Several months later, the parties had worked out all the

details of the agreement except for Medicare release language.

[4] On January 27, 2017, the Stillwells sent a letter to Irwin Levin, a managing

partner at Cohen & Malad, and Laker, practice chair of the firm’s personal

injury practice, expressing their dissatisfaction with Chamberlain’s

representation. The Stillwells alleged they had been damaged by Chamberlain’s

“misconduct,[ ]lies, incompetent Medicare recovery handling, and violations of

the rules of professional responsibility.” Supplemental Appendix to Appellees’

Brief, Volume II at 112. Specifically, they alleged:

Mr. Chamberlain willfully acted against our express instruction.

Mr. Chamberlain made a settlement offer to opposing counsel without consulting us.

Mr. Chamberlain had an impermissible personal conflict of interest with a defendant party.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 3 of 11 Mr. Chamberlain frequently put demands on us for litigation work that was his duty.

Mr. Chamberlain unfairly represented Dr. William Stillwell with respect to Dr. Stillwell’s age and disability.

Id.

[5] Chamberlain subsequently moved to withdraw from the case; the Stillwells filed

pro se appearances with the trial court on February 27. See Addendum to

Appellees’ Brief at 4. Around the same time, the underlying defendants filed a

motion to enforce the settlement agreement because the Stillwells refused to

execute the settlement documents. On April 7, 2017, Levin and Laker entered

their appearances and filed a motion to intervene to assert a claim for attorney

fees and expenses and to deposit the settlement funds with the clerk of court.2

The Stillwells objected to the motion.

[6] The underlying defendants initially objected to Chamberlain’s withdrawal;

however, they withdrew their objection at an April 10, 2017 hearing during

which the Stillwells stated they had no objection to his withdrawal, and the trial

court granted the motion to withdraw in open court. See Supp. App. to

Appellees’ Br., Vol. II at 36-38. On May 2, the trial court issued an order

related to the issues heard at the April 10 hearing. The trial court granted

2 At some point, the underlying defendants tendered the settlement funds and Cohen & Malad held the funds in their trust account until the specifics of the disbursement were worked out.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 4 of 11 Cohen & Malad’s motion to intervene, allowed Cohen & Malad to deposit the

settlement funds with the clerk of court, granted the underlying defendants’

motions to enforce the settlement agreement, and reiterated that it had granted

Chamberlain’s motion to withdraw in open court on April 10. See id. at 118-20.

[7] On July 11, the trial court held a hearing on various outstanding motions. On

July 26, the trial court issued orders enforcing the settlement agreement,

entering judgment against the Stillwells and dismissing the case with prejudice

as to the underlying defendants, and ordering the clerk of court to distribute the

requested attorney fees and expenses to Chamberlain and Cohen & Malad and

the remainder to the Stillwells. The Stillwells appealed, challenging the

enforcement of the settlement agreement, Cohen & Malad’s intervenor status,

and the attorney fees and expenses they were ordered to pay. Stillwell v. Eagle-

Kirkpatrick Mgmt. Co., Inc., No. 49A02-1708-CT-1919 (Ind. Ct. App. July 6,

2018), trans. denied, cert. denied, 139 S.Ct. 2756 (2019). A panel of this court

affirmed in all respects. Id. at *2-4.

[8] On April 30, 2019, the Stillwells filed their Complaint for Legal Malpractice,

Attorney Deceit, Fraud Upon the Court, Breach of Fiduciary Duty, and

Demand for Jury Trial.3 Defendants’ filed their answer to the Stillwells’

3 The same day, the Stillwells also filed a legal malpractice claim against Price Waicukowski Joven & Catlin, LLC, the attorneys the Stillwells consulted regarding their contemplated malpractice action against Cohen & Malad. On June 21, 2019, the trial court consolidated the Stillwells’ complaints for trial. See Appellants’ Appendix, Volume 2 at 2-4. The trial court granted judgment on the pleadings in both cases, though at different times, and the Stillwells have appealed both orders under separate appellate cause numbers.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 5 of 11 complaint on July 1 and attached several exhibits: Exhibit A, a certified copy

of the previous Court of Appeals decision; Exhibit B, the transcript filed with

the Court of Appeals in the prior appeal; Exhibit C, the Stillwells’ January 27

letter to Cohen & Malad regarding Chamberlain’s inadequate representation;

and Exhibit D, the trial court’s May 2 order stating Chamberlain’s motion to

withdraw was granted in open court and granting Cohen & Malad’s motion to

intervene. See Supp. App. to Appellees’ Br., Vol. II at 7, 11-120.

[9] On August 20, 2019, Defendants filed a motion for judgment on the pleadings

and supporting memorandum arguing that the Stillwells’ claims are barred by

the statute of limitations. The trial court held a hearing on the motion, and on

October 18, the trial court issued an order granting Defendants’ motion and

finding that the Stillwells’ claims are barred by the two-year statute of

limitations. See Appealed Order at 5-8, ¶¶12-19.

[10] The Stillwells filed a motion requesting that the trial court certify its order

granting judgment on the pleadings as a final and appealable order. Defendants

filed a response arguing that the motion was moot because the judgment was

already a final and appealable order, a point which the Stillwells conceded. On

November 26, 2019, the trial court denied the Stillwells motion requesting the

court certify the order granting judgment on the pleadings. See Supp. App. to

Appellees’ Br., Volume II at 161-62.

[11] The Stillwells filed their Notice of Appeal with this court on November 27.

Defendants subsequently filed a Verified Motion to Dismiss Belated Appeal

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 6 of 11 contending the Stillwells failed to file their notice of appeal within thirty days of

the final judgment, dated October 18. Defendants’ motion to dismiss was

denied,4 and we now address the merits of the parties’ arguments.

Discussion and Decision I. Judgment on the Pleadings: Standard of Review [12] We review de novo a trial court’s ruling on a Trial Rule 12(C) motion for

judgment on the pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731

(Ind. 2010). We accept as true the material facts alleged in the complaint and

base our ruling solely on the pleadings. Veolia Water Indianapolis, LLC v. Nat’l.

Trust Ins. Co., 3 N.E.3d 1, 4-5 (Ind. 2014). “We will affirm the trial court’s

grant of a T.R. 12(C) motion for judgment on the pleadings when it is clear

from the face of the pleadings that one of the parties cannot in any way succeed

under the operative facts and allegations made therein.” Davis ex. Rel. Davis v.

Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001), trans. denied.

4 The Defendants ask this court to revisit the issue of whether the Stillwells’ appeal should be dismissed due to the untimely filing of their notice of appeal. Even though our motions panel has already ruled on this issue, Defendants are not precluded from presenting their argument to us. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007). Nonetheless, we are reluctant to overrule issues decided by the motions panel. Id. In this case, despite the Stillwells’ untimely notice of appeal, our motions panel exercised its discretion and allowed this appeal to proceed – a decision we will not second guess. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (stating that a party’s filing of an untimely notice of appeal does not “deprive the appellate courts of jurisdiction to entertain the appeal”); see also Indiana Appellate Rule 1. As such, we decline to reconsider the denial of Defendants’ motion to dismiss and will address the merits of the Stillwells’ arguments.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 7 of 11 II. Statute of Limitations [13] The Stillwells argue the trial court improperly determined that their legal

malpractice complaint was barred by the statute of limitations. Specifically,

they contend that they filed their complaint within the two-year statute of

limitations because Cohen & Malad remained in active litigation until July 10,

2017. We disagree.

[14] In this case, the Stillwells filed a complaint for legal malpractice raising several

theories: legal malpractice, attorney deceit, breach of fiduciary duty, and fraud

upon the court. Although they raise four theories, the substance of their entire

complaint is a legal malpractice claim and we will evaluate it as such. See

Shideler v. Dwyer, 275 Ind. 270, 276, 417 N.E.2d 281, 285 (1981) (“[I]t is the

nature or substance of the cause of action, rather than the form of the action,

which determines the applicability of the statute of limitations” (internal

quotation omitted)).

[15] The statute of limitations for a legal malpractice action is two years. Ind. Code

§ 34-11-2-4(a) (“An action for . . . injury to personal property . . . or . . . a

forfeiture of penalty given by statute . . . must be commenced within two (2)

years after the cause of action accrues.”). The statute of limitations for a breach

of fiduciary duty claim or a civil action seeking treble damages for attorney

deceit is also two years. See id.; Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140,

145 (Ind. Ct. App. 2001) (stating that a breach of fiduciary duty claim is a tort

claim for injury to personal property), trans. denied; Ind. Code § 33-43-1-8

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 8 of 11 (attorney deceit statute and action for treble damages); Browning v. Walters, 616

N.E.2d 1040, 1047 (Ind. Ct. App. 1993) (stating the statute of limitations for

treble damages is two years).

[16] For a cause of action 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.

[L]egal 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.

Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind. Ct. App. 2003),

trans. denied. And where the attorney continues to represent the client in the

same matter in which the alleged malpractice occurred, the cause of action

accrues at the termination of an attorney’s representation of a client in the same

matter in which the malpractice occurred. Id. at 766-67.

[17] The Stillwells filed their complaint on April 30, 2019. Therefore, if their action

accrued more than two years prior to that date – in other words, before April 30,

2017 – their claims are barred by the statutes of limitations. Defendants’

answer and attached exhibits reveal that the Stillwells wrote a letter to Levin

and Laker expressing their dissatisfaction with Chamberlain’s representation on

January 27, 2017. Therefore, as of January 27, more than two years before the

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 9 of 11 filing of their complaint, the Stillwells clearly believed they had sustained at

least some injury as a result of Chamberlain’s alleged inadequate

representation. See Supp. App. to Appellees’ Br., Vol. II at 112 (the Stillwells

alleging in their letter they had been damaged by Chamberlain’s “misconduct,

[ ]lies, incompetent Medicare recovery handling, and violations of the rules of

professional responsibility”). Chamberlain continued to represent the Stillwells

after they sent the letter; however, soon thereafter, he moved to withdraw his

representation of the Stillwells. The Stillwells then filed pro se appearances.

See Appellants’ App., Vol. 2 at 26, ¶ 35. Thus, the accrual date is the date that

Cohen & Malad’s representation of the Stillwells in the slip and fall case ended.

[18] The May 2, 2017 order included in the Defendants’ answer establishes that at

the April 10 hearing, the Stillwells stated they had no objection to Chamberlain’s

motion to withdraw and the trial court granted the motion in open court.

Therefore, Cohen & Malad’s representation of the Stillwells was terminated on

April 10, 2017 – more than two years before the Stillwells filed their legal

malpractice action.

[19] To the extent the Stillwells argue that the statute of limitations did not begin to

run until July 10, 2017 because Cohen & Malad was actively involved in the

litigation until that time, they are incorrect. The trial court granted Cohen &

Malad’s motion to withdraw as counsel for the Stillwells on April 10 and during

that same hearing, Mrs. Stillwell conceded she had “no relationship with

Cohen & Malad as of this moment or a few moments ago.” Supp. App. to

Appellees’ Br., Vol. II at 51. Following the hearing, after Chamberlain’s

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 10 of 11 appearance on behalf of the Stillwells had already been withdrawn, the trial

court issued an order granting Cohen & Malad’s motion to intervene to deposit

the settlement funds with the court. Cohen & Malad remained active in the

case as intervenors for this purpose until the trial court issued its order enforcing

the settlement agreement, entering judgment against the Stillwells, dismissing

the case, and ordering the clerk to distribute attorney fees and expenses to

Cohen & Malad.

[20] We conclude the allegations and facts contained in the pleadings demonstrate

that the Stillwells’ legal malpractice action accrued more than two years before

they filed their complaint on April 30, 2019. Therefore, their claims are barred

by the statute of limitations and “it is clear from the face of the pleadings that

[they] cannot in any way succeed under the operative facts and allegations

made therein.” Davis ex. Rel. Davis, 747 N.E.2d at 1149. As such, the trial court

properly granted Defendants’ motion for judgment on the pleadings.

Conclusion [21] We conclude the Stillwells’ claims are barred by the statute of limitations and

therefore, the trial court did not err in granting the Defendants’ motion for

judgment on the pleadings. Accordingly, the judgment of the trial court is

affirmed.

[22] Affirmed.

May, J., and Vaidik, J., concur. Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 11 of 11