                                                                             Nov 06 2015, 5:26 am




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Timothy F. Devereux                                       Jon R. Pactor
Dustin F. Fregiato                                        Indianapolis, Indiana
Ladendorf Law
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Devereux,                                         November 6, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1411-CT-780
        v.                                                Appeal from the Marion Superior
                                                          Court

Rene DiBenedetto,                                         The Honorable Timothy Oakes,
                                                          Judge;
Appellee-Plaintiff.
                                                          Trial Court Cause No.
                                                          49D13-1310-CT-37987




May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015                   Page 1 of 9
[1]   Timothy Devereux appeals the denial of his motion for summary judgment. He

      argues Rene DiBenedetto’s claim against him was barred by the limitations

      period set forth in her contract with Conour Law Firm, LLC (“the Firm”).

      DiBenedetto argues Devereux is not a party to the contract she made with the

      Firm or, in the alternative, the contract’s language shortening the limitations

      period was the product of unfair dealing, violated Rule of Professional

      Responsibility 1.8(h), and violates public policy. DiBenedetto cross-appeals,

      asserting the trial court erred when it did not rule on her motions to strike

      certain evidence Devereux designated. We affirm.


                                  Facts and Procedural History
[2]   On April 25, 2010, DiBenedetto entered into a contract with the Firm to pursue

      damages stemming from an automobile accident. On July 1, 2010,

      DiBenedetto received a letter advising her that her case would be taken over by

      a new firm named Conour Devereux Hammond. She was advised by Conour

      that she could contact any of the attorneys on staff at Conour Devereux

      Hammond to discuss her case.


[3]   In January 2011, the insurance company for the other driver involved in the

      automobile accident settled the suit and paid policy limits of $50,000.00. On

      January 13, 2011, DiBenedetto signed a Release in Full of all Claims and

      Rights, but reserved her right to maintain a claim for underinsurance against

      her own insurance company. DiBenedetto did not receive any money from the

      January 2011 settlement. At some point in the summer of 2011, DiBenedetto

      met with Devereux to inquire about the status of her case.
      Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015   Page 2 of 9
[4]   In September 2011, DiBenedetto’s underinsurance claim against her insurance

      company was settled. The settlement check was dated October 11, 2011, and

      DiBenedetto signed the Release in Full of all Claims and Rights on November

      29, 2011. DiBenedetto did not receive proceeds from the September 2011

      settlement. Devereux left Conour Devereux Hammond on December 22, 2011.


[5]   On April 27, 2012, Conour was indicted on multiple counts of wire fraud

      involving the misappropriation of client funds. The Indiana media covered

      Conour’s indictment, as well as his subsequent resignation from the Indiana

      Bar. Conour pled guilty and was incarcerated.


[6]   DiBenedetto filed a complaint against Devereux on October 11, 2013. She

      alleged Devereux breached a “duty to make sure that the law firm would make

      reasonable efforts to ensure that the firm had in effect measures giving

      reasonable assurance that all lawyers and non-lawyers in the firm conform to

      the Rules of Professional Conduct.” (App. at 8.) DiBenedetto contended

      Devereux “is liable for Rene DiBenedetto’s loss of settlement proceeds” by

      virtue of his employment relationship with Conour. (Id. at 9.)


[7]   On April 23, 2014, Devereux answered DiBenedetto’s complaint and asserted

      the affirmative defense that her claims were barred by the limitations period as

      set forth in DiBenedetto’s contract with the Firm. On June 6, 2014, Devereux




      Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015   Page 3 of 9
      filed his first motion for summary judgment, making the same argument. 1

      DiBenedetto moved to strike some of Devereux’s designated evidence.


[8]   The trial court held a hearing on the matter 2 on August 21, 2014, and on

      September 22, denied Devereux’s motion for summary judgment in an order

      that contained no findings of fact. On October 16, the trial court certified the

      September 22 order for interlocutory appeal. We accepted jurisdiction.


                                          Discussion and Decision 3
[9]   We review summary judgment de novo, applying the same standard as the trial

      court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all

      reasonable inferences in favor of the non-moving party, we will find summary

      judgment appropriate if the designated evidence shows there is no genuine issue

      as to any material fact and the moving party is entitled to judgment as a matter

      of law. Id. A fact is material if its resolution would affect the outcome of the

      case, and an issue is genuine if a trier of fact is required to resolve the parties’

      differing accounts of the truth, or if the undisputed material facts support

      conflicting reasonable inferences. Id.




      1
       DiBenedetto argues the contract she signed with Conour Law, LLC, did not apply after she received a letter
      on July 1, 2010, indicating Conour Law Firm LLC would thereafter be named Conour Devereux Hammond.
      As we stated in Devereux v. Love, this change was one of name only, and no change of ownership occurred.
      30 N.E.3d 754, 758 (Ind. Ct. App. 2015), reh’g denied. Furthermore, DiBenedetto did not sign a new contract
      with Conour Devereux Hammond.
      2
          The transcript of this hearing is not included in the record.
      3
       We held oral argument on this matter on October 19, 2015, in the Court of Appeals Courtroom. We
      commend counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015                      Page 4 of 9
[10]   The initial burden is on the summary-judgment movant to demonstrate there is

       no genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with evidence showing there is an

       issue for the trier of fact. Id. While the non-moving party has the burden on

       appeal of persuading us summary judgment was erroneous, we carefully assess

       the trial court’s decision to ensure the non-movant was not improperly denied

       his day in court. Id.


[11]   Our summary judgment policies aim to protect a party’s day in court. Id.

       While federal practice permits the moving party to show merely that the party

       carrying the burden of proof lacks evidence on a necessary element, we impose a

       more onerous burden -- to affirmatively negate an opponent’s claim. Id. That

       permits summary judgment to “be precluded by as little as a non-movant’s

       ‘mere designation of a self-serving affidavit.’” Id. (quoting Deuitch v. Fleming,

       746 N.E.2d 993, 1000 (Ind. Ct. App. 2001), trans. denied). Summary judgment

       is not a summary trial, and it is not appropriate just because the non-movant

       appears unlikely to prevail at trial. Id. at 1003-04. We “consciously err[] on the

       side of letting marginal cases proceed to trial on the merits, rather than risk

       short-circuiting meritorious claims.” Id. at 1004.


[12]   In his motion for summary judgment, Devereux argued DiBenedetto’s action

       was barred by the limitations period set forth in DiBenedetto’s contract with the

       Firm because his services were included as part of that contract. The contract

       identified the Firm as “ATTORNEYS” and was signed by William Conour as



       Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015   Page 5 of 9
       “ATTORNEYS” and DiBenedetto as “CLIENTS.” (App. at 86.) Section 9.02

       of the contract stated:

                CLIENTS and ATTORNEYS mutually agree that, regardless of any
                statute of limitation which may provide otherwise, any claim or
                dispute between them of any nature, i.e. common law, statutory,
                contractual or other, shall have a one year statute of limitations 4 and
                all claims not commenced within one year of the date the claim
                accrued shall be forever barred.
       (Id. at 85) (footnote added). He argued, based on the date criminal charges

       were filed against Conour, DiBenedetto knew by April 27, 2012, that her

       settlement funds had been mishandled. DiBenedetto filed her complaint

       against Devereux on October 13, 2013, one year and almost six months later. 5


[13]   The limitations period for actions based on “injury to person or character” or

       “injury to personal property” is two years “after the cause of action accrues.”

       Ind. Code § 34-11-2-4. “In Indiana, statutes of limitation are favored because

       they afford security against stale claims and promote the peace and welfare of

       society.” Runkle v. Runkle, 916 N.E.2d 184, 191 (Ind. 2009) (quoting Morgan v.

       Benner, 712 N.E.2d 500, 502 (Ind. Ct. App. 1999), reh’g denied, trans. denied).




       4
        This language is likely in error. The contract cannot change the statute of limitations, but it can presumably
       change the limitations period in which a claim can be filed.
       5
         As an aside, part of DiBenedetto’s argument centers around her contention Devereux is not a party to her
       contract with Conour Law, LLC. It is undisputed Devereux was an employee of the Firm at all times
       relevant to DiBenedetto’s claim and was therefore a party to the services contract DiBenedetto signed with
       the Firm. See Galinis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999) (Galanis, as the client’s subsequent
       lawyer, was required to pay Lyons & Truitt, as the client’s previous law firm, for work done by Lyons and an
       associate in preparation for the client’s trial).

       Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015                          Page 6 of 9
[14]   Whether a contractual provision is void because of public policy is a question of

       law. Hi-Tec Properties, LLC v. Murphy, 14 N.E.3d 767, 773 (Ind. Ct. App. 2015),

       trans. denied. Devereux argues the shortened limitations period of one year as

       set forth in the contract was permissible. He cites New Welton Homes v. Eckman,

       in which our Indiana Supreme Court observed, “contractual limitations

       shortening the time to commence suit are valid, at least so long as a reasonable

       time is afforded.” 830 N.E.2d 32, 35 (Ind. 2005) (quoting Summers v. Auto-

       Owners Ins. Co., 719 N.E.2d 412, 414 (Ind. Ct. App. 1999)), reh’g denied.


[15]   However, as we held in Briggs v. Clinton County Bank and Trust Co., “[a] contract

       for legal services is governed by more strict rules than those applicable to a

       contract between parties on equal footing.” 452 N.E.2d 989, 1004 (Ind. Ct.

       App. 1983), reh’g denied. Further, Indiana Rule of Professional Conduct 1.8(h)

       requires a client be “independently represented in making [an] agreement” that

       would “prospectively limit the lawyer’s liability for malpractice[.]”


[16]   Neither party directs us to an Indiana decision that addresses shortening the

       period of limitations for legal action against an attorney. However, in a legal

       malpractice decision regarding a clause in a billing contract requiring the client

       to contest the bill within ten days or be bound by it, a California court held:

               [A] contractually shortened limitations period has never been
               recognized outside the context of straightforward transactions in which
               the triggering event for either a breach of contract or for the accrual of
               a right is immediate and obvious. Moreover, no decision upholding
               the validity of a contractually shortened limitation period has done so
               in the context of an action against a professional or skilled expert
               where breach of duty is more difficult to detect. Instead, most reported

       Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015       Page 7 of 9
               decisions upholding shortened periods involve straightforward
               commercial contracts plus the unambiguous breaches or accrual of
               rights under those contracts.
[17]   Charnay v. Cobert, 51 Cal. Rptr. 3d 471, 481 (Cal. Ct. App. 2006) (quoting

       Moreno v. Sanchez, 131 Cal. Rptr. 2d 684, 695 (Cal. Ct. App. 2003), review

       denied). See also, generally, B.H. Glenn, Validity of contractual time period, shorter

       than statute of limitations, for bringing action, 6 A.L.R.3d 1197 (2015) (examining

       the validity of a variety of shortened limitation periods; noting: “To successfully

       attack a contract period of limitation as invalid, counsel must ordinarily allege

       and prove that the specified period . . . was so short under the circumstances as

       to show imposition or undue advantage.”).


[18]   DiBenedetto was not represented when she contracted with the Firm. Conour,

       and by extension, Devereux, were in a superior bargaining position by virtue of

       their attorney status. See Matter of Myers, 663 N.E.2d 771, 774-75 (Ind. 1996)

       (“Lawyers almost always possess the more sophisticated understanding of fee

       arrangements. It is therefore appropriate to place the balance of the burden of

       fair dealing and the allotment of risk in the hands of the lawyer in regard to fee

       arrangements with clients.”). The clause shortening the time to file an action

       against the Firm benefitted solely the law firm, as it removed DiBenedetto’s

       ability to file a claim of which she might have been unaware despite due

       diligence.




       Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015      Page 8 of 9
                                                    Conclusion
[19]   We agree with the Charnay analysis and find it consistent with Indiana Rule of

       Professional Conduct 1.8(h). The clause in DiBenedetto’s contract with the

       Firm that shortens the time for filing a lawsuit violates public policy and is void.

       Therefore, the trial court properly denied Devereux’s motion for summary

       judgment. 6 We expressly decline to comment on the merits of DiBenedetto’s

       action against Devereux. The opinion should be read to address the issue of the

       limitations clause found in the contract between DiBenedetto and the Firm, and

       nothing else. We affirm the decision of the trial court.


       Vaidik, C.J., and Robb, J., concur.




       6
        As we affirm the denial of the motion for summary judgment, we need not address DiBenedetto’s cross-
       appeal of the trial court’s failure to rule on her two motions to strike certain evidence Devereux offered.

       Court of Appeals of Indiana | Opinion 49A02-1411-CT-780 | November 6, 2015                         Page 9 of 9
