                                                                                FILED
                                                                         Jun 28 2016, 9:01 am

                                                                                CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William J. Obermeyer                                      Robert A. Plantz
      Obermeyer Law                                             Aaron C. Lopez
      Valparaiso, Indiana                                       Robert A. Plantz & Associates,
                                                                LLV
                                                                Merrillville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Elaine Chenore,                                           June 28, 2016
      Appellant,                                                Court of Appeals Case No.
                                                                45A03-1509-CC-1504
              v.                                                Appeal from the Lake Superior
                                                                Court
      Robert Plantz,                                            The Honorable Sheila M. Moss,
      Appellee                                                  Judge
                                                                The Honorable Kathleen Belzeski,
                                                                Magistrate
                                                                Trial Court Cause No.
                                                                45D08-1409-CC-670



      Bailey, Judge.



                                           Case Summary
[1]   Elaine Chenore (“Chenore”) appeals, following the deemed denial of a motion

      to correct error challenging the dismissal of her attorney malpractice action

      Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016                     Page 1 of 6
      against Robert Plantz (“Plantz”). She presents the sole issue of whether the

      trial court improperly dismissed the claim pursuant to Indiana Trial Rule

      12(B)(6). We reverse.



                             Facts and Procedural History
[2]   Chenore’s complaint, filed May 27, 2014, indicates the following: At all

      relevant times, Plantz “presented [him]self as engaging in business as

      [Chenore]’s legal representative as an attorney duly licensed to practice law in

      the State of Indiana.” (App. at 9.) In July of 2005, Chenore hired Plantz to

      pursue a claim for money damages against William D. Knight (“Knight”). A

      judgment in the amount of $10,930.00 was obtained in January of 2006. In

      December of 2006, Knight filed a Chapter 13 Bankruptcy petition. Plantz was

      notified and collection proceedings were stayed. Plantz informed Chenore of

      the bankruptcy petition; she did not receive notice directly from a bankruptcy

      court. Plantz told Chenore to “wait until notified by the Bankruptcy Court”

      and further told her that he “was going to appear at the Bankruptcy Court.”

      (App. at 10.) Over the next two years, Chenore made inquiries of Plantz,

      receiving “no positive response.” (App. at 10.) Knight paid 100% of the claims

      filed, but did not pay Chenore anything because no claim was filed on her

      behalf. Chenore became aware of Knight’s bankruptcy discharge in July of

      2012.


[3]   Plantz filed a motion to dismiss pursuant to Trial Rule 12(B)(6). On April 28,

      2015, the parties appeared for a hearing at which argument of counsel was

      Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016   Page 2 of 6
      heard.1 Plantz argued that the two-year statute of limitations for attorney

      malpractice2 had expired. Chenore argued in response that the statute of

      limitations was equitably tolled, in that Plantz had pursued collection of the

      Knight judgment but did not inform Chenore that he did not represent her for

      purposes of filing a claim in bankruptcy court. She claimed to have first

      discovered her harm within two years of filing her complaint.


[4]   At the conclusion of the hearing, the trial court entered an order providing in

      pertinent part: “The Defendant’s Motion to Dismiss is granted. The Plaintiff’s

      claim is barred by the Statute of Limitations.” (App. at 8.) Chenore filed a

      motion to correct error, attaching an affidavit. The trial court conducted an

      additional hearing but did not rule on the motion to correct error. The motion

      was deemed denied. This appeal ensued.



                                   Discussion and Decision
                                           Standard of Review
[5]   A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which

      relief can be granted tests the legal sufficiency of a claim, not the supporting




      1
        Neither party presented testimony or an evidentiary exhibit. Accordingly, the proceedings were not
      converted to summary judgment proceedings pursuant to Trial Rule 12(B): “If, on a motion, asserting the
      defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted,
      matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as
      one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given
      reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
      2
          Ind. Code § 34-11-2-4.


      Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016                              Page 3 of 6
      facts. Godby v. Whitehead, 837 N.E.2d 146, 149 (Ind. Ct. App. 2005), trans.

      denied. Accordingly, we view the complaint in the light most favorable to the

      non-moving party, and draw every reasonable inference in favor of that party.

      Id. We stand in the shoes of the trial court and must determine if the trial court

      erred in its application of the law. Id. The trial court’s grant of a motion to

      dismiss is proper if it is apparent that the facts alleged in the complaint are

      incapable of supporting relief under any set of circumstances. Id. In making

      this determination, we look only to the complaint and may not resort to any

      other evidence in the record. Id.


                                                   Analysis
[6]   The statute of limitations for attorney malpractice is two years. Ickes v. Waters,

      879 N.E.2d 1105, 1108 (Ind. Ct. App. 2008). The two-year period begins to run

      when the plaintiff knows of, or in the exercise of ordinary diligence could have

      discovered, the tortious conduct. Id. Plantz moved to dismiss Chenore’s

      complaint on statute of limitations grounds pursuant to Trial Rule 12(B)(6),

      which provides in relevant part:


              [T]he following defenses may be made by motion:

              (6) Failure to state a claim upon which relief can be granted[.]


[7]   A motion to dismiss for failure to state a claim on which relief may be granted

      may be an appropriate means of raising the statute of limitations. In re Estate of

      Carroll, 436 N.E.2d 864, 865 (Ind. Ct. App. 1982). When the complaint shows


      Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016     Page 4 of 6
       on its face that the statute of limitations has run, the defendant may file a Trial

       Rule 12(B)(6) motion. Nichols v. Amax, 490 N.E.2d 754, 755 (Ind. 1986). The

       plaintiff may then amend to plead facts in avoidance. Id. Dismissal under Trial

       Rule 12(B)(6) is “rarely appropriate.” State v. Am. Family Voices, Inc., 898

       N.E.2d 293, 296 (Ind. 2008).


[8]    Chenore was not afforded the opportunity to amend her complaint. However,

       she asserts that the complaint, viewed most favorably to her, indicates that she

       may prevail on her claim notwithstanding a two-year statute of limitations.

       According to Chenore, Plantz’s representations equitably tolled the statute of

       limitations and Chenore did not discover her harm until she became aware of

       Knight’s bankruptcy discharge in July of 2012. This was less than two years

       before she filed her complaint.


[9]    Chenore’s complaint asserted facts in avoidance of the statute of limitation. To

       the extent that Plantz has argued that Chenore should have discovered her

       harm earlier, this presents a factual dispute not apparent on the face of

       Chenore’s complaint. “A complaint is sufficient and should not be dismissed so

       long as it states any set of allegations, no matter how unartfully pleaded, upon

       which the plaintiff could be granted relief.” Graves v. Kovacs, 990 N.E.2d 972,

       976 (Ind. Ct. App. 2013).


[10]   Accordingly, we agree with Chenore that her complaint was improperly

       dismissed pursuant to Trial Rule 12(B)(6).




       Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016     Page 5 of 6
[11]   Reversed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana |Opinion 45A03-1509-CC-1504 | June 28, 2016   Page 6 of 6
