MEMORANDUM DECISION                                                       FILED
                                                                     May 24 2018, 6:13 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                          CLERK
this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
regarded as precedent or cited before any                                  and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Curtis Pearman                                          Crystal G. Rowe
Naples, Florida                                         Kightlinger & Gray, LLP
                                                        New Albany, Indiana
                                                        Michael E. Brown
                                                        R. Eric Sanders
                                                        Kightlinger & Gray, LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Curtis Pearman,                                         May 24, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        41A01-1711-CC-2647
        v.                                              Appeal from the
                                                        Johnson Superior Court
Andrew Alexander Szakaly,                               The Honorable
Appellee-Defendant.                                     Kevin M. Barton, Judge
                                                        Trial Court Cause No.
                                                        41D01-1612-CC-1165



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018           Page 1 of 15
[1]   Curtis Pearman (“Pearman”) appeals the trial court’s order granting a motion

      for judgment on the pleadings filed by Andrew Alexander Szakaly (“Szakaly”)

      in Pearman’s action for legal malpractice against Szakaly. Pearman raises

      several issues on appeal that we consolidate and rephrase as: whether the trial

      court erred in granting the motion for judgment on the pleadings because

      Pearman’s complaint was governed by the two-year statute of limitations and

      was barred because it was untimely filed.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Pearman owned and operated a commercial office complex in Greenwood,

      Indiana. Pearman signed a lease agreement, with an effective lease date of

      January 1, 2008, with the Jacksons, a husband and wife team of dentists, for

      one of Pearman’s Greenwood office suites. The lease was for a term of three

      years and granted the Jacksons the right to three additional “option periods,”

      each three years in length, as long as they paid a specified rent increase for each

      option period. Appellant’s App. Vol. 2 at 13. If the Jacksons wished to exercise

      the option to renew, the lease required them to give Pearman a six-month

      written notice. Id.


[4]   At some point during the initial lease period, the Jacksons indicated to Pearman

      that they intended to remain in occupancy of the commercial suite into the first

      option period. Id. at 13-14. At that time, however, they had already missed the

      six-month written notice period. Nevertheless, Pearman orally granted the

      Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 2 of 15
      Jacksons a waiver of the notice requirement, and the parties agreed to continue

      to discuss increasing the amount of square footage occupied by the Jacksons.


[5]   On January 1, 2011, the first optional period for the lease began, and the

      Jacksons remained in occupancy of the property. On February 12, 2011, the

      Jacksons paid the “first option period rent increase.” Id. at 14. After several

      increased option rental payments had been made, the Jacksons told Pearman

      that they had purchased another office property and would be moving from his

      office property. Id. Pearman informed the Jacksons that he would not release

      them from their lease obligations, and after the parties failed to reach any

      agreement, Pearman hired Szakaly for legal representation.


[6]   On November 28, 2011, Szakaly filed a complaint against the Jacksons on

      Pearman’s behalf in Johnson County. On November 12, 2013, the Jacksons

      filed a motion for summary judgment in that case. Thirty-four days later, on

      December 16, 2013, Pearman received by email “Szakaly’s first alert of the

      pending Jackson Motion for summary judgment.” Id. at 18. On December 18,

      2013, Szakaly filed a response to the summary judgment motion, without

      designating any exhibits or affidavits. Id. Szakaly, by email, told Pearman that

      there was no need for Pearman to prepare an affidavit. Id.


[7]   When Pearman asked Szakaly why he had not conducted any discovery,

      Szakaly responded that he was waiting for a ruling on the motion for summary

      judgment and a trial setting. Id. The trial court subsequently granted summary

      judgment in favor of the Jacksons and noted that Pearman had not designated


      Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 3 of 15
      any evidence, but, instead, relied solely upon the Jacksons’ designated

      evidence. Id. at 16, 18. Szakaly filed a motion to correct error, which the trial

      court construed as a motion to reconsider since the grant of summary judgment

      was not a final judgment. The trial court denied the motion.


[8]   Pearman hired replacement legal counsel and terminated Szakaly. Specifically,

      in a certified letter dated June 12, 2014, Pearman terminated Szakaly’s

      representation, stating in pertinent part:


              As I have learned additional issues concerning your
              representation of me, I have needed to update my June 13, 2014
              [sic] emailed Termination Notices. Due to your misrepresentation of
              the status of this case, gross negligence, failure to comply with our
              agreements along with my written instructions and your ignoring my
              right to discovery regarding Pearman v. Jackson, as well as your failure
              to make the timely and appropriate pleadings to the Court, thereby
              jeopardizing the outcome of this action, I have terminated your legal
              representation of me in Pearman v. Jackson.


              ....


              Naturally, I have no intention of compensating you for any
              unpaid amounts that you may claim to be owed to you in this
              matter. There has been substantial demonstrable damage caused to my
              position in the Jackson matter by your actions and/or failures to act on
              my behalf, as well as your apparent failure to forward missing
              documents from this case to my current counsel.


      Id. at 62 (emphasis added). In the Jackson matter, Pearman’s replacement

      counsel filed another motion to reconsider, which included untimely evidence.

      That motion was also denied by the trial court. The case was then appealed to

      Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 4 of 15
       this court, and the trial court’s decision was affirmed in a published opinion

       that was decided on January 26, 2015. Id. at 68-84.


[9]    On December 22, 2016, Pearman filed his pro se legal malpractice action

       against Szakaly. Pearman alleged that Szakaly had failed to perform his

       responsibilities, e.g., to keep the client advised of all pending motions and to

       properly designate summary judgment materials, in a sufficient manner to meet

       the appropriate standard of care. Id. at 21-23. Pearman also alleged a breach-

       of-contract claim against Szakaly, arguing that Szakaly had breached a duty to

       timely provide Pearman with all correspondence and filings and to preserve

       alleged confidential information during settlement discussions. Id. at 23-24.

       Finally, Pearman alleged that Szakaly engaged in negligent misrepresentation

       by communicating false information to Pearman about the status of the case

       against the Jacksons. Id. at 24-26.


[10]   Pearman attached several exhibits to his complaint, including the termination

       letter to Szakaly dated June 12, 2014. Id. at 62. In response, Szakaly filed a

       motion for judgment on the pleadings under Indiana Trial Rule 12(C), arguing

       that Pearman’s complaint was barred by the governing two-year statute of

       limitations, which expired on June 12, 2016,1 which was several months before




       1
        Pearman argues that the termination letter was sent on July 24, 2014 and not June 12, 2014. Appellant’s Br.
       at 16. However, the letter attached to the complaint in this matter was dated June 12, 2014, and that date
       was used by the trial court in its order. Appellant’s App. Vol. 2 at 9-12. Moreover, Pearman’s December 22,
       2016 complaint would be time barred even if the termination letter had been sent on July 24, 2014, and the
       discrepancy in dates is irrelevant.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018             Page 5 of 15
       Pearman’s complaint was filed on December 22, 2016. Appellant’s App. Vol. 3 at

       2-9. Pearman responded to the Trial Rule 12(C) motion, arguing that his

       complaint was saved by the discovery rule because he did not “sustain any final

       and ‘ascertainable damage’” from Szakaly’s alleged malpractice until May 2015

       when the opportunity to reverse the underlying negative summary judgment

       expired. Id. at 10-11 (emphasis in original).


[11]   On June 15, 2017, the trial court granted Szakaly’s motion for judgment on the

       pleadings. The trial court determined that Pearman’s claims were governed by

       the two-year statute of limitations under Indiana Code section 34-11-2-4 and

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

       trans. denied. Appellant’s App. Vol. 2 at 10. The trial court acknowledged that

       legal malpractice actions are subject to the discovery rule and then found that

       Pearman’s termination letter demonstrated his knowledge that damage from the

       alleged malpractice had occurred as of June 12, 2014. Id. at 10-11. The trial

       court rejected Pearman’s contention that the statutory period did not commence

       until conclusion of the underlying case. Id. at 11. Additionally, the trial court

       concluded that Pearman’s negligent misrepresentation claim arose in tort and

       was also barred by the governing two-year statute of limitations under section

       34-11-2-4. Id. The trial court further noted that it was “apparent even to a

       layman,” that Pearman’s claim of breach of contract was for legal malpractice

       and was barred by the governing two-year limitations period. Id. at 11-12.

       Pearman filed a motion to correct error, which the trial court denied. Pearman

       now appeals.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 6 of 15
                                      Discussion and Decision
[12]   Pearman argues that the trial court erred when it granted Szakaly’s motion for

       judgment on the pleadings. The standard of review for a ruling on a motion for

       judgment on the pleadings under Indiana Trial Rule 12(C) is de novo. Celadon

       Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839-40 (Ind. Ct. App. 2017),

       trans. denied. A ruling on a Trial Rule 12(C) motion must be based solely on the

       pleadings, as well as any facts of which judicial notice may be taken, and courts

       must accept the properly-pleaded material facts alleged in the complaint as true.

       Id. at 840. A motion for judgment on the pleadings may be granted only if it is

       clear from the face of the complaint that relief could not be granted to the

       plaintiff under any circumstances. Id.


[13]   For purposes of a Trial Rule 12(C) motion, the pleadings consist of the

       complaint and answer, as well as any reply to a counterclaim, answer to a cross-

       claim, third-party complaint, and answer to a third-party complaint. Id.

       Pleadings also consist of any written instrument attached to a pleading,

       pursuant to Indiana Trial Rule 9.2. Id. “A copy of any written instrument

       which is an exhibit to a pleading is a part thereof for all purposes.” Ind. Trial

       Rule 10(C).


[14]   Pearman contends that it was error for the trial court to grant judgment on the

       pleadings because his complaint was timely filed and not time barred by the

       statute of limitations. He first asserts that, contrary to the trial court’s order, his

       cause of action against Szakaly did not accrue until the conclusion of his


       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 7 of 15
       underlying action. Specifically, he maintains that his cause of action against

       Szakaly was tolled until the date the appeal was handed down in his action

       against the Jacksons because, until that time, he had not suffered any

       compensable damage. Additionally, Pearman argues that the trial court applied

       the incorrect statute of limitations and that his malpractice action against

       Szakaly was not governed by a two-year statute of limitations. Instead,

       Pearman claims that his complaint should have been governed by at least a six-

       year statute of limitations because his breach of contract and negligent

       misrepresentation were separate and distinct from his legal malpractice claim

       and did not involve a personal property right.


[15]   We turn first to Pearman’s claim that the trial court applied the wrong statute of

       limitations to his complaint against Szakaly. The statute of limitations for a

       claim of legal malpractice is two years. Ind. Code § 34-11-2-4. Pearman’s

       complaint against Szakaly contained three counts; Count I was for legal

       malpractice, and Counts II and III were characterized as breach of contract and

       negligent misrepresentation, respectively. However, these labels are not

       dispositive because the applicable statute of limitations is ascertained by

       identifying the nature or substance of the cause of action, rather than by the

       form of the pleadings. Stickdorn v. Zook, 957 N.E.2d 1014, 1021 (Ind. Ct. App.

       2011) (citing Whitehouse v. Quinn, 477 N.E.2d 270, 273 (Ind. 1985)).


[16]   Pearman’s complaint for legal malpractice alleged that Szakaly had failed to

       perform his responsibilities, e.g., to keep the client advised of all pending

       motions and to properly designate summary judgment materials, in a sufficient

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 8 of 15
       manner to meet the appropriate standard of care. Appellant’s App. Vol. 2 at 21-

       23. Based on the nature of the harm, this count was governed by the two-year

       statute of limitations under Indiana Code section 34-11-2-4.


[17]   In Count II of his complaint, Pearman alleged a breach-of-contract claim

       against Szakaly, contending that Szakaly had breached a duty to timely provide

       Pearman with all correspondence and filings and to preserve alleged

       confidential information during settlement discussions. Id. at 23-24. He further

       claimed that “[a]s a result of Szakaly’s breach of his duties . . ., Pearman lost in

       his Complaint against the Jacksons . . . .” Id. at 24. In Count III, Pearman

       alleged that Szakaly engaged in negligent misrepresentation by communicating

       false information to Pearman about the status of his case against the Jacksons.

       Id. at 24-26. The substance of both of these allegations is based on the alleged

       failures and breach of duties of Szakaly during the course of his representation

       of Pearman in his action against the Jacksons. Therefore, the substance of these

       claims is legal malpractice, notwithstanding Pearman’s characterizations of

       them as breach of contract and negligent misrepresentation. Accordingly, the

       two-year statute of limitations from Indiana Code section 34-11-2-4 applies.


[18]   We next turn to Pearman’s argument that his complaint was timely filed

       because his cause of action against Szakaly did not accrue until the conclusion

       of his underlying action against the Jacksons. 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, 1276-77 (Ind. Ct. App. 2016)

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 9 of 15
       (citing Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind. Ct. App. 1996),

       trans. denied), trans. denied. 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. (citing 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. Landmark Legacy, LP v. Runkle, 81 N.E.3d 1107,

       1117 (Ind. Ct. App. 2017) (citing Biomet, 791 N.E.2d at 765).


[19]   In the present case, based on the pleadings, the attorney-client relationship

       between Pearman and Szakaly ended on June 12, 2014. This was evidenced in

       the letter that Pearman sent to Szakaly, in which Pearman terminated Szakaly.

       Appellant’s App. Vol. 2 at 62. Additionally, the June 12, 2014 letter shows that

       Pearman possessed knowledge at that time that some ascertainable damage had

       occurred due to Szakaly’s alleged malpractice. In the letter, Pearman states that

       there has been “substantial demonstrable damage caused to [his] position in the

       Jackson matter” because of Szakaly’s “actions and/or failures to act on

       [Pearman’s] behalf.” Id. Therefore, as of June 12, 2014, the attorney-client

       relationship between Pearman and Szakaly had ended and Pearman was aware

       that he had sustained an injury as the result of the actions or failure to act of

       Szakaly. The statute of limitations began to run on June 12, 2014, and

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 10 of 15
       Pearman had until June 12, 2016 to commence his legal malpractice action

       against Szakaly. Pearman did not file his complaint until December 22, 2016,

       and it was, consequently, time-barred.


[20]   Pearman also contends that the two-year statute of limitations was tolled until

       January 15, 2015 when this court decided the appeal in his action against the

       Jacksons. Pearman asserts that under Biomet, the statute of limitations

       governing his complaint was tolled until the conclusion of the underlying

       action, which was the failure of his appeal in the Jackson matter. However, his

       reliance on Biomet is misplaced. Biomet did not hold that the statute of

       limitations is tolled until the underlying litigation is concluded. In Biomet, the

       cause of action against the attorneys was tolled merely because they remained

       involved in the ongoing litigation and thus continued their representation of the

       client. The Biomet court adopted the continuous representation doctrine as an

       exception to the discovery rule, stating, “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.” Biomet, 791 N.E.2d at 767.


[21]   The Biomet court also specifically recognized that a client may terminate the

       attorney-client relationship without giving the attorney an opportunity to

       mitigate the damages and make a claim of legal malpractice within two years of

       the date of termination. Id. at 766. However, “the continuous representation

       doctrine does not apply to a client who retains new counsel on appeal.” Id. at

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 11 of 15
       766 n.2. Moreover, the continuous representation doctrine does not delay the

       commencement of the statute of limitations until the end of the attorney-client

       relationship generally, but only during the attorney’s representation of the client

       in the same matter from which the malpractice claim arose. Id.


[22]   The continuous representation doctrine as adopted in the Biomet case does not

       apply to the present case. Pearman retained new counsel and terminated

       Szakaly in the Jackson matter on June 12, 2014. The two-year statute of

       limitations began to run on the date of Szakaly’s termination. Pearman clearly

       knew of the alleged negligence by Szakaly when he wrote in the termination

       letter that he was terminating Szakaly due to his “gross negligence” in the case.

       Appellant’s App. Vol. 2 at 62. At that time, Pearman had already hired

       replacement counsel and did not permit Szakaly to attempt to remedy his

       alleged mistakes as is contemplated by the continuous representation doctrine.

       See, e.g., Biomet, 791 N.E.2d at 766 (noting that the continuous representation

       rule avoids disruption of the attorney-client relationship and gives attorneys the

       chance to remedy mistakes before being sued and, at the same time, relieves

       clients from having to second-guess the attorney and obtain other legal opinions

       regarding the attorney’s handling of the case). Therefore, the tolling of the

       statute of limitations set out in Biomet does not apply to save Pearman’s

       untimely complaint.


[23]   Pearman also claims the statute of limitations governing his complaint was

       tolled, and did not begin to accrue, until he knew the actual extent of his

       damages, which only occurred once the underlying case against the Jacksons

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 12 of 15
       had concluded. We disagree. Pearman’s complaint against Szakaly and the

       attached exhibits establish that Pearman knew that he had suffered a loss from

       Szakaly’s alleged actions or failures to act. Appellant’s App. Vol. 2 at 62.

       “Indiana courts have held that the discovery rule does not mandate that

       plaintiffs know with precision the legal injury that has been suffered, but merely

       anticipates that a plaintiff be possessed of sufficient information to cause him to

       inquire further in order to determine whether a legal wrong has occurred.”

       Bambi’s Roofing, Inc. v. Moriarty, 859 N.E.2d 347, 356 (Ind. Ct. App. 2006).


[24]   Here, Pearman’s termination letter to Szakaly shows that Pearman was aware

       that he had sustained some ascertainable damage at least as of June 12, 2014.

       That letter, which was included as part of the pleadings, provided, in relevant

       part:


               Due to your misrepresentation of the status of this case, gross
               negligence, failure to comply with our agreements along with my
               written instructions and your ignoring my right to discovery
               regarding Pearman v. Jackson, as well as your failure to make the
               timely and appropriate pleadings to the Court, thereby
               jeopardizing the outcome of this action, I have terminated your
               legal representation of me in Pearman v. Jackson.


               ....


               Naturally, I have no intention of compensating you for any
               unpaid amounts that you may claim to be owed to you in this
               matter. There has been substantial demonstrable damage caused
               to my position in the Jackson matter by your actions and/or
               failures to act on my behalf, as well as your apparent failure to
               forward missing documents from this case to my current counsel.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 13 of 15
       Appellant’s App. Vol. 2 at 62. The termination letter clearly demonstrated that

       Pearman was aware of Szakaly’s alleged “misrepresentation,” “gross

       negligence,” and “failure to comply with [] agreements” involved in the

       Jackson case and that he had discovered that there had been “substantial

       demonstrable damage caused to [his] position.” Id. Additionally, Pearman was

       aware of “damages” he had incurred by being required to hire replacement

       counsel.


[25]   Further, contrary to Pearman’s assertion, his statement in the June 12, 2014

       letter that he had suffered substantial demonstrable damage was not merely

       speculation. Pearman’s complaint against Szakaly was based on the premise

       that if, in the underlying case, Szakaly had submitted evidence that the

       Jacksons were paying the increased rent associated with their exercise of the

       lease option, even though they had not given the written notice required by the

       lease, the trial court would have denied the Jacksons’ motion for summary

       judgment. See Appellant’s Br. at 19-20. Under his theory, Pearman was

       damaged when Szakaly failed to timely file his response and designations to the

       Jacksons’ summary judgment motion because, at that time, Pearman lost the

       chance to submit any responsive designations to counter the Jackson’s claims.

       Although Pearman may not have known the amount of his actual damages, the

       June 12, 2014 termination letter indicated that he was aware that some

       ascertainable damage had occurred. Therefore, the statute of limitations period

       for Pearman’s legal malpractice action against Szakaly began to run on June 12,

       2014 and expired on June 12, 2016. The trial court did not err in granting


       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 14 of 15
       judgment on the pleadings in favor of Szakaly because Pearman’s complaint

       filed on December 22, 2016 was time barred.


[26]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1711-CC-2647 | May 24, 2018   Page 15 of 15
