      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
