      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
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      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
