ted-l-cecil-cecil-septic-llc-and-max-haas-company-llc-v-fisk ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Oct 15 2012, 8:31 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES FISKS AND
MURPHY:
GORDON B. DEMPSEY
Indianapolis, Indiana LAWRENCE M. HANSEN
LINDA TURNER JELKS
Hansen Law Firm, LLC
Noblesville, Indiana
ATTORNEY FOR APPELLEES CITY OF
GREENFIELD ET AL.:
CAREN L. POLLACK
Pollack Law Firm, P.C.
Indianapolis, Indiana
ATTORNEY FOR APPELLEE HANCOCK
COUNTY BOARD OF HEALTH:
MARK A. HOLLOWAY
Stephenson Morow & Semler
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE GREGG
MORELOCK:
MICHAEL E. BROWN
Kightlinger & Gray, LLP
Indianapolis, Indiana
CRYSTAL G. ROWE
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TED L. CECIL, CECIL SEPTIC LLC, and )
MAX HAAS COMPANY, LLC, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 33A05-1112-MI-686
)
FISK EXCAVATING, PLUMBING AND )
SEPTIC SERVICES, INC., DENNIS FISK, )
DENNIS FISK, JR., MICHELLE FISK, BOB )
MURPHY, CITY OF GREENFIELD, DAVID )
SCHEITER, CHERYL RADTKA, HANCOCK )
COUNTY BOARD OF HEALTH, and GREGG )
MORELOCK, )
)
Appellees-Defendants. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Mary G. Willis, Judge
Cause Nos. 33C01-0905-MI-15, 33C01-0907-PL-14
October 15, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Ted L. Cecil, Cecil Septic LLC, and Max Haas Company, LLC (collectively, “Cecil”)
filed a complaint alleging defamation against Fisk Excavating, Plumbing and Septic Services,
Inc.; Dennis Fisk; Dennis Fisk, Jr.; Michelle Fisk; Bob Murphy (collectively, “Fisk”); the
City of Greenfield; David Scheiter; Cheryl Radtka (collectively, “the City”); and the Hancock
County Board of Health (“the Board”); and against Gregg Morelock (“Morelock”) alleging
legal malpractice. Cecil now appeals the trial court’s order granting summary judgment in
favor of the defendants, raising the following consolidated and restated issues:
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I. Whether the trial court properly granted summary judgment in favor of
Fisk, finding that some of the alleged defamatory statements related
only to a consumer opinion regarding a product and not to Cecil, that
the remaining allegations of defamation were not timely pursuant to the
applicable statute of limitations, and that the other allegations in the
complaint did not concern Fisk and were not recognizable torts;
II. Whether the trial court properly granted summary judgment in favor of
the City, finding that the allegations of defamation were not timely
pursuant to the applicable statute of limitations, that the elements of
defamation were not established, and that the remaining allegations in
the complaint did not relate to the City and were not recognizable torts;
III. Whether the trial court properly granted summary judgment in favor of
the Board, finding that the allegations of defamation were not timely
pursuant to the applicable statute of limitations and because Cecil filed
an untimely tort claim notice; and
IV. Whether the trial court properly granted summary judgment in favor of
Morelock, finding that Cecil’s allegations of legal malpractice were not
timely filed pursuant to the applicable statute of limitations.
We affirm and remand.
FACTS AND PROCEDURAL HISTORY
Ted L. Cecil (“Ted”) is the sole shareholder and owner of Cecil Septic LLC (“Cecil
Septic”) and Max Haas Company, LLC (“Max Haas”), which are both businesses located in
Hancock County, Indiana and provide septic and sewer services. Ted has owned Cecil
Septic, which was previously owned and operated by his father, since 1987 or 1988, and in
March 2007, Ted bought Max Haas. As part of Cecil’s business, Ted employed a system
called Terra-Lift, which is used for septic repair and renewal of septic systems. Terra-Lift
utilizes a pneumatic probe to inject air at high pressure into and across the septic field,
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creating fissures in the soil, and to insert tiny beads into these fissures to keep soil from
filling in the fissures over time.
Fisk Excavating, Plumbing and Septic Services, Inc. (“Fisk Septic”) is in the business
of repairing and replacing septic systems, but does not employ Terra-Lift. Fisk Septic had its
principal place of business in Hancock County, Indiana and is a competitor of Cecil. Dennis
Fisk, Dennis Fisk, Jr. (“Fisk Jr.”), and Michelle Fisk are principals or employees of Fisk
Septic, and Bob Murphy (“Murphy”) is a former employee of Fisk Septic.
Cecil alleged that, sometime in 2002, a man named Tom O’Neill (“O’Neill”) asked
Fisk about Terra-Lift, and Fisk responded that, Terra-Lift results are just temporary, maybe
for six months or a year, and you may want to try it if you are moving. Appellant’s App. at
707. Cecil further alleged that, on March 5, 2005, Murphy told a homeowner, Ed Turner
(“Turner”), when present at Turner’s house to do work, that Cecil “draws short” when
cleaning septic tanks. Id. at 53. To “draw short” means that the septic tank is not fully
emptied when it is pumped out, leaving solids in the tank. Id. at 401. On November 14,
2008, Fisk Jr. was approached by Chris Hurley (“Hurley”), a private investigator hired by
Ted to make inquiries of Fisk and to record the conversations. Id. at 113. Cecil alleged that
Fisk Jr. made the following statements to Hurley when asked about Terra-Lift: (1) “Terra-
Lift is mainly a way to ‘get the foot in the door,’ to sell a septic system”; (2) “It ‘does not
work, most of the time’”; (3) “A company will offer to apply the Terra-Lift price to a new
septic system if Terra-Lift fails, but then charge ‘always way higher’ than normal, for the
septic”; (4) “The state [board] of health will not recommend it, ‘I guarantee you.’”; (5) “You
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are ‘throwing your money away’ doing it.”; (6) “They ‘don’t ever work’ and ‘it rarely
works.” Id. at 53-54.
The Greenfield Wastewater Treatment Plant (“the Plant”) accepts septic waste for
disposal only from within Hancock County. A waste hauler’s load might include waste from
one residential customer or from multiple customers. Generally, the haulers prefer to dump a
full or almost full truck to save costs. Under the current policy, when a hauler brings waste
to the Plant, he logs the customer’s information and the amount of waste from each load. An
employee from the Plant checks the site tube on the truck to determine the number of gallons
of waste being dumped. Cecil pumps both septic tanks and grease from restaurants and has
five or six trucks that pump and haul septic waste.
Until 2001, the City utilized an honor system at the Plant where the waste haulers
were trusted to record the true amount of waste in their trucks, but the actual amount in the
trucks was not checked. During one of Cecil’s visits to the Plant in April 2001, in the
presence of Ted’s brother and several employees of the Plant, Superintendent David Scheiter
(“Scheiter”) spoke with Ted and told him that it had come to Scheiter’s attention that Cecil
employees were not accurately logging their loads when dumping at the Plant. Scheiter had
been previously told by an employee of the Plant that, on multiple occasions, Cecil had
logged only 1,000 gallons, even though the trucks held more than 4,000 gallons of waste. Id.
at 176, 501. Shortly thereafter in 2001, Scheiter changed the Plant’s procedure for checking
haulers’ loads to require all trucks to be checked for the amount of waste on board before the
driver is allowed to dump the waste. Later that year, the Indiana Department of
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Environmental Management changed the policy and procedure for all waste plants to require
pH sampling and sample storage. Ted admitted in his deposition testimony that he regularly
under-reported his loads at the Plant prior to 2001, during the time when the honor system
was in place. Id. at 131. He stated that everybody, including Cecil, would under-report when
the honor system was used. Id.
Stephen Schmidt (“Schmidt”) was hired by the Board as an environmental health
specialist. He inspected new home construction and septic systems that replaced old systems
to make sure they were designed and constructed properly. Cecil asserted that, when
inspecting a job that Cecil had performed, Schmidt told a subcontractor of Cecil that the
work looked better than other systems Cecil had installed. Id. at 35-36. Cecil alleged that
Schmidt told another homeowner, Gus Clark (“Clark”), that Cecil “ripped off” homeowners.
Id. at 36. On October 9, 2007, Cecil had used the Terra-Lift system to restore Clark’s septic
system; however, it did not work, and Clark continued to experience problems. On
January16, 2008, Cecil pumped out Clark’s septic tank, but left sewage in the tank. Clark’s
wife complained to the Board, and Schmidt inspected the tank. Cecil alleged that Schmidt
told Ted’s mother that there were numerous complaints about Cecil and gave her a business
card of a competitor. Id.
Brent Wakeland (“Wakeland”) is an environmental health specialist for the Board and
part of his job duties is also to inspect new and restored septic systems to ensure they are
constructed properly. Wakeland is familiar with the types of soil in Hancock County because
he has to evaluate the soil to make sure that a building site is suitable for a septic system,
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allowing for proper drainage of water and not containing a high water table. Id. at 355.
Sometime between 2000 and 2005, the Board checked with the Indiana Department of Health
to inquire as to whether the State was going to regulate the use of Terra-Lift, but the State has
not yet regulated its use. Over the last ten years, several residents whose septic installations
Wakeland inspected told him that they had a Terra-Lift restoration, but had ended up needing
to replace the septic system anyway. Id. at 356. Wakeland estimated that, during that same
period of time, about fifty residents told him that Terra-Lift did not work very well, and
typically after two years, the septic system failed again. Id. at 357.
After Schmidt inspected the Clarks’ septic tank, Wakeland sent a letter on January 31,
2008, informing Cecil that, when pumping out septic tanks, he should pump out or remove
all of the solids. Id. at 357, 361. Wakeland sent the letter to Ted and copied the Board’s
Health Officer, Ray A. Haas, M.D., and the Board’s attorney, Morelock, but did not send the
letter to anyone else. On November 14, 2008, Wakeland had a conversation with Hurley at
the Board’s offices, and Hurley secretly recorded their conversation. Wakeland did not know
that she was Cecil’s private investigator. In this conversation, Wakeland offered his opinions
regarding Terra-Lift, particularly that it did not work well in Hancock County due to the
heavy clay soil and high water table.
Kyle Schrink (“Schrink”) was also an environmental health specialist at the Board, but
he left that position in 2005 to pursue other employment. Cecil alleged that an unidentified
girl heard Schrink tell Ted’s mother that “I don’t like him. I don’t recommend him,”
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referring to Cecil. Id. at 38. Ted was not sure when this conversation occurred, but it may
have been in 2002, 2003, or 2004.
Cecil alleged that a secretary at the Board, Karen Lindsay (“Lindsay”) had told a
Greenfield nurse, Julie Hanson (“Hanson”), that Cecil “rips people off” and “she should go
to another vendor, whom she named.” Id. at 35. Ted believed that this conversation took
place in 2005 within a few weeks of when Cecil installed a septic pump for Hanson. Cecil
also alleged that Lindsay had slandered Cecil on several occasions, with the most recent
being on October 27, 2008, when she rolled her eyes and told the boyfriend of Ted’s daughter
that Terra-Lift did not work in Hancock County, due to the soil. Id. at 38, 276. Ted had sent
his daughter and her boyfriend to the Board to ask about Terra-Lift. Cecil further alleged
that, in May 2007, a document was sent to the Clarks, which was shown to one of Cecil’s
investigators. On the letter, someone had handwritten “Blast system was a waste”; however,
Cecil did not know who had written this. Id. at 287, 288.
In 2003, Ted, on behalf of Cecil, hired Morelock to help resolve a contractual dispute
Cecil was having with Mark’s RV. Mark’s RV had contracted with Cecil to install a septic
system and some temporary holding tanks to store wastewater until the septic system could
be installed. Cecil believed that the holding tanks would only hold restroom wastewater, but
later suspected that they contained more than just restroom waste. When they emptied them
the second time, the liquid was allegedly bluish-green, which to Cecil indicated the presence
of formaldehyde. Since dumping formaldehyde into the Plant required a special discharge
permit, Cecil asked Mark’s RV to complete an application for such a permit, but they
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refused. Cecil therefore contacted Morelock to retain him to help in getting the permit
application completed. After a two-week period of time where Cecil contends that Morelock
did not return its calls, a telephone conversation took place, where Morelock told Cecil that
the attorney did not appreciate being lied to and that Mark’s RV stated that there was
“nothing but water running off that parking lot there.” Id. at 384. Cecil took these
statements to mean that Morelock was taking the word of Mark’s RV over Cecil’s. Cecil
therefore believed that Morelock had a conflict of interest and was representing the interests
of the Board, whom he had as a client, and “the permit entanglements that this formaldehyde
got them all into” rather than those of Cecil. Id. at 385. Cecil discharged Morelock, and the
unused portion of their retainer was returned. Cecil perceived the conflict of interest in 2003
when he fired Morelock.
On December 23, 2008, Cecil filed a tort claims notice against the Hancock County
Board of Commissioners, and on December 29, 2008, filed a petition for injunction against
the Board, which was originally filed in Marion County, but was later transferred to Hancock
County and ultimately to Henry County. Cecil subsequently amended its injunction petition
to add a claim for damages on September 2, 2009. On January 22, 2009, Cecil filed a
complaint in Marion County against Fisk, the City, and Morelock, which included five
counts: Count I, “Defamation”; Count II, “Dump Fee Overcharges”; Count III, “Permit
Entanglements”; Count IV, “Abuse of Authority”; and Count V, “As to Venue.” Id. at 34-46.
Venue was transferred to Henry County on July 22, 2009. These two separate actions were
consolidated for discovery by informal agreement of the parties. On July 29, 2009, six
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months after filing its complaint, Cecil served a tort claim notice on the City. All of the
defendants filed motions for summary judgment. Cecil requested an extension of time to
respond to the motions, which was granted, and the trial court set the deadline for Cecil’s
responses as August 22, 2011. Cecil’s response to the City’s motion for summary judgment
was filed on August 23, 2011. The response to the Morelock’s motion for summary
judgment was filed on September 13, 2011, and the response to the Board’s motion was filed
on September 16, 2011. Fisk filed an amended motion for summary judgment on September
2, 2011, which Cecil responded to on October 19, 2011. The trial court conducted a hearing
on the defendants’ motions for summary judgment on September 16, 2011. On September
19, 2011, the trial court issued an order granting summary judgment in favor of the City, the
Board, and Morelock; on December 6, 2011, the trial court issued its order granting summary
judgment in favor of Fisk. Cecil now appeals.
DISCUSSION AND DECISION
On appeal from a grant of summary judgment, our standard of review is the same as
that of the trial court. Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559,
562 (Ind. Ct. App. 2005). We stand in the shoes of the trial court and apply a de novo
standard of review. 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
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judgment as a matter of law. Ind. Trial Rule 56(C). For summary judgment purposes, a fact
is “material” if it bears on the ultimate resolution of relevant issues. Wilcox Mfg., 832 N.E.2d
at 562. 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 nonmoving party. Troxel Equip. Co. v. Limberlost Bancshares, 833
N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. denied.
The defense of a statute of limitations is peculiarly suitable as a basis for summary
judgment. McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004), trans. denied. The
purpose of summary judgment is to terminate litigation about which there can be no factual
dispute and which may be determined as a matter of law. Id. The burden is on the moving
party to show that there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Id. 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. Cox, 848 N.E.2d at 695-
96. Nevertheless, the reviewing court faces the same issues that were before the trial court
and must carefully scrutinize the trial court’s determination to assure that the non-prevailing
party was not improperly prevented from having his or her day in court. Id.An action for injury to person or character must be commenced within two years after
the cause of action accrues. Ind. Code § 34-11-2-4. Defamation is that which tends to injure
reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to
excite derogatory feelings or opinions about the plaintiff. Davidson v. Perron, 716 N.E.2d
1129, 37 (Ind. Ct. App. 1999), trans. denied. Therefore, the statute of limitations for
defamation is two years. To establish defamation, the plaintiff must prove the following
elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and
(4) damages. Id.I. Fisk1
Cecil argues that the trial court erred when it granted summary judgment in favor of
Fisk as to all claims against them. Cecil contends that its claims of defamation against Fisk
were not time-barred by the applicable statute of limitations. It claims that the statements
attributed to Fisk made on November 14, 2008 to Hurley were within the statute of
limitations and that the discovery rule should apply to toll the statute of limitation as to the
statement made to O’Neill because it was not discovered until September 29, 2011. Cecil
also alleges that the statute of limitations should have been tolled due to the ongoing nature
of the alleged tort. Cecil further asserts that, the fact that the statements on November 14,
2008 only pertained to Terra-Lift and not him personally, should not matter because he was
the only Terra-Lift provider in the county and their defamatory inference was clear.
Here, because all of the claims against Fisk pertain to defamation, Cecil was required
to file a complaint within two years of the alleged injury. I.C. 34-11-2-4. Cecil’s complaint
was filed on January 22, 2009. The statement by Murphy regarding the fact that Cecil
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Fisk filed a motion to strike several statements contained within Cecil’s brief, contending that these
statements had been previously stricken from the record by the trial court and were therefore not properly
before this court. “Once evidence is stricken from the record, it may not be used to further support a party’s
legal argument.” AKJ Indus., Inc. v. Mercantile Nat’l Bank, 779 N.E.2d 543, 545 (Ind. Ct. App. 2002), trans.
denied. Pursuant to a separate order, we grant Fisk’s motion to strike.
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“draws short” was made on March 5, 2005. Cecil does not make any argument that the
statute of limitations should be tolled for this statement. Therefore, Cecil’s cause of action
accrued on March 5, 2005, and the complaint was not filed within the applicable time period,
causing it to be untimely.
As for the remaining statements attributed to Fisk, including the 2002 statement to
O’Neill and the November 14, 2008 statements to Hurley, we do not find that these
statements were actionable. Defamation is that which tends to injure reputation or to
diminish esteem, respect, goodwill or confidence in the plaintiff, or to excite derogatory
feelings or opinions about the plaintiff. Branham v. Celadon Trucking Servs., Inc., 744
N.E.2d 514, 522 (Ind. Ct. App. 2001), trans. denied. To maintain an action for defamation, a
plaintiff must show a communication with four elements: 1) defamatory imputation; 2)
malice; 3) publication; and 4) damages. Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261
(Ind. 1994). “Defamatory words are not actionable unless they refer to some ascertained or
ascertainable person, and that person must be the plaintiff.” Id. (citing Lee v. Weston, 402
N.E.2d 23, 30 (Ind. Ct. App. 1980)). None of the remaining alleged statements by Fisk refer
to Ted, Cecil Septic, Max Haas, or any other ascertainable person, and Cecil does not dispute
that the statements refer only to a product, Terra-Lift. Cecil therefore has failed to establish
a claim for defamation as to the 2002 statement and the November 14, 2008 statements under
Count I of his complaint. Further, to the extent that Cecil argues that the remaining counts
apply to Fisk, we disagree as those counts do not relate to alleged acts by Fisk and they are
not recognizable torts. The trial court properly granted summary judgment in favor of Fisk.
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II. The City
Cecil argues that the trial court erred when it granted summary judgment in favor of
the City as to all of the claims against it. Specifically, Cecil contends that the claims against
the City were not untimely due to the continuing nature of the defamation by the City. Cecil
further alleges that the defense of truth does not apply to the defamation claims because
Scheiter singled out Cecil as being “the bad hombre” in the underreporting that occurred at
the Plant when there were others that participated in the same behavior. Appellant’s Br. at
42-43 (emphasis in original). Further, Cecil asserts that the remaining counts were
recognizable torts that implicated the City, and summary judgment should not have been
granted as to them.
As to the timeliness of Cecil’s defamation claim against the City, the trial court
determined that Cecil’s complaint, filed on January 22, 2009, was untimely. The only
allegation of defamation against the City was the statement by Scheiter, which was made in
the presence of Ted, Ted’s brother, and several employees of the Plant, that it had come to
Scheiter’s attention that Cecil employees were not accurately logging their loads when
dumping at the Plant. This statement was made in April 2001, which was almost eight years
before the complaint was filed. Ted was physically present when the statement was allegedly
made by Scheiter and was aware of the alleged defamation as of the date of the statement.
Cecil’s defamation claim was therefore untimely because it was required to be commenced
within two years after the cause of action accrued; Cecil’s claim was filed over seven years
after the cause of action accrued.
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Further, even assuming without deciding that the statement attributed to the City was
defamatory, the statement was true. To impose liability for defamation, a false statement of
fact is required. Newman v. Jewish Cmty. Ctr. Ass’n of Indianapolis, 875 N.E.2d 729, 739
(Ind. Ct. App. 2007), trans. denied. Truth is a complete defense to defamation. Gatto v. St.
Richard Sch., Inc., 774 N.E.2d 914, 924 (Ind. Ct. App. 2002) (citing Assocs. Corp. of N. Am.
v. Smithley, 621 N.E.2d 1116, 1119 (Ind. Ct. App. 1993)). Here, Cecil admitted that the
substance of the allegedly defamatory statement was true. The context of the communication
by Scheiter was that an employee of the Plant had discovered that, on multiple occasions,
Cecil had logged only 1,000 gallons to be dumped, even though the trucks held more than
4,000 gallons of waste. Id. at 176, 501. Ted admitted under oath at his deposition that, under
the prior honor system, Cecil habitually underreported the loads the company dumped at the
Plant for many years. Appellant’s App. at 131. Therefore, Scheiter’s statement was true and
not a false statement of fact. The trial court did not err when it entered summary judgment in
favor of the City as to the defamation count. Additionally, the trial court properly granted
summary judgment as to the remaining counts as they either did not concern the City or did
not constitute recognizable torts.
III. The Board
Cecil argues that the trial court erred when it granted summary judgment in favor of
the Board as to all of the claims against it. Cecil alleges that its claims against the Board
were timely both under the statute of limitations and the Tort Claims Act. Cecil further
contends that all of the statements attributed to the Board constituted defamation, and
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genuine issues of material fact exist as to each element.
When a claim is filed against a political subdivision, the Indiana Tort Claims Act
(“ITCA”) requires written notice to be served upon the governing body of that political
subdivision within 180 days after the loss occurs. Ind. Code § 34-13-3-8. The ITCA
provides that a claim against a political subdivision is barred unless the prescribed notice is
filed within the statutory time limit. Davidson, 716 N.E.2d at 33. Further, a two-year statute
of limitations applies to Cecil’s defamation claims against the Board. I.C. 34-11-2-4.
Here, Cecil filed his tort claims notice against the Hancock County Board of
Commissioners on December 23, 2008 and filed its complaint against the Board on
September 2, 2009. In the complaint, Cecil claimed that Lindsay, a secretary at the Board,
told Hanson that Cecil “rips people off” and that this conversation occurred in 2005.
Appellant’s App. at 35. Cecil was required to file a tort claims notice within 180 days of the
alleged defamatory statement and to file his complaint within two years of such occurrence.
Neither of these was done in a timely fashion.
Cecil alleged that Schmidt told a subcontractor of Cecil’s that a job done by Cecil
looked better than other Cecil jobs, a conversation that occurred in 2003 or 2004. This
alleged defamation occurred at least four years prior to Cecil’s tort claim notice and is time-
barred. Cecil also alleged that Schmidt told Clark that Cecil “ripped off” homeowners,
appellant’s app. at 36, a statement made on January 16, 2008, which is more than 180 days
before the tort claims notice was filed. Therefore, this alleged statement is time-barred.
Sometime between January 16, 2008 and March 24, 2008, Cecil alleged that Schmidt told
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Cecil’s mother that there were numerous complaints about Cecil and gave her the business
card of a competitor. This alleged defamation is time-barred because it occurred more than
180 days before the tort claims notice was filed.
The January 31, 2008 letter, which Wakeland sent to Cecil informing Cecil to make
sure he removes all of the solids out of tanks when pumping them, was also alleged to be
defamatory. This alleged statement was also untimely as it was more than 180 days before
the tort claims notice was filed. Cecil alleged that, in May 2007, a document that contained a
handwritten notation stating, “Blast system was a waste,” was sent to the Clarks by the Board
and shown to one of Cecil’s investigators. Appellant’s App. at 287-88. In the record before
us, there is no evidence as to who had written this notation, but even if it could be proven that
someone at the Board had written it, the alleged defamation still took place more than 180
days before the tort claims notice was filed and more than two years before the complaint
was filed. Cecil made an allegation that an unidentified girl heard Schrink tell Cecil’s
mother, “I don’t like him. I don’t recommend him,” referring to Cecil. Ted was unsure when
this statement was made, but it may have been in 2002, 2003, or 2004, and the evidence
showed that Schrink left his position at the Board in 2005. Therefore, this allegation was
time-barred by both the ITCA and the statute of limitations.
Only two of Cecil’s allegations were not time-barred by either the ITCA or the statute
of limitations. In one, Cecil alleged that his investigator, Hurley, had a conversation with
Wakeland at the Board’s offices on November 14, 2008, where Wakeland made numerous
statements regarding his opinions about Terra-Lift, particularly that it did not work in
17
Hancock County because of the heavy clay soil and the high water table. The other incident
was when Lindsay, while speaking to Cecil’s daughter and her boyfriend on October 27,
2008, allegedly rolled her eyes and said that Terra-Lift did not work very well in Hancock
County due to the soil. “Defamatory words are not actionable unless they refer to some
ascertained or ascertainable person, and that person must be the plaintiff.” Schrader, 639
N.E.2d at 261 (citing Lee, 402 N.E.2d at 30). Neither of these two remaining alleged
statements by the Board refers to Ted, Cecil Septic, Max Haas, or any other ascertainable
person, and Cecil does not dispute that the statements refer only to a product, Terra-Lift.
Cecil therefore has failed to establish a claim for defamation as to the October 27, 2008
statement and the November 14, 2008 statements under Count I of his complaint. We
conclude that the trial court properly granted summary judgment in favor of the Board.
IV. Morelock
Cecil argues that the trial court erred when it granted summary judgment in favor of
Morelock as to all of the claims against him. Cecil asserts that his claims against Morelock
were not time-barred because the statute of limitation should have been tolled due to
Morelock’s concealment of the existence of the cause of action, Morelock’s conflict of
interest. Cecil contends that, because there was a fiduciary relationship between itself and
Morelock, a mere failure to disclose this conflict of interest when there was a duty to do so
was sufficient to toll the statute of limitations.
In Indiana, the statute of limitations for a claim of legal malpractice (or negligence) is
two years. Ind. Code § 34-11-2-4; see also Filip v. Block, 879 N.E.2d 1076, 1082 (Ind. 2008)
18
(stating that statute of limitations for negligence action is two years); Biomet, Inc. v. Barnes
& Thornburg, 791 N.E.2d 760, 765 (Ind. Ct. App. 2003) (recognizing that statute of
limitations for legal malpractice is two years), trans. denied. Further, 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. Biomet, 791 N.E.2d at 765. For an action to accrue, it is not necessary that the full
extent of the damage be known or even ascertainable, but only that some ascertainable
damage has occurred. Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1280 (Ind.
2009). Therefore, under the statute of limitations, Cecil had two years from the date of
discovery to bring its legal malpractice (or negligence) cause of action.
The designated evidence showed that Morelock represented Cecil for a brief period of
time, only a few weeks, in 2003. Although the representation ended in 2003, Cecil did not
file a complaint against Morelock until January 22, 2009. Thus, the applicable two-year
statute of limitations bars Cecil’s claims against Morelock because the suit was not timely
filed. Nevertheless, Cecil contends that the statute of limitation should have been tolled by
the discovery rule and the doctrine of fraudulent concealment. The designated evidence
revealed that Cecil perceived the existence of the alleged conflict of interest in 2003 when
Morelock believed Mark’s RV over Cecil regarding the presence of formaldehyde at the
Mark’s RV premises. Appellant’s App. at 386. Cecil therefore knew or should have known
of any alleged injury in 2003, even if the full extent of the injury was not yet evident. As to
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Cecil’s claims of fraudulent concealment, “where the duty to inform exists by reason of a
confidential relationship, when that relationship is terminated the duty to inform is also
terminated; concealment then ceases to exist.” Adams v. Luros, 406 N.E.2d 1199, 1202 (Ind.
Ct. App. 1980). Here, the evidence showed that Cecil perceived a conflict of interest in 2003
and fired Morelock at that time. Thus, any fraudulent concealment by failure to disclose
ended when the confidential attorney-client relationship ended. As a result, any claim against
Morelock should have been filed within two years of 2003. Because Cecil’s claims were not
filed until January 22, 2009, any claims against Morelock were barred by the applicable
statute of limitation. The trial court did not err when it granted summary judgment in favor
of Morelock.
On appeal, Morelock argues that he is entitled to recover appellate attorney fees from
Cecil pursuant to Indiana Appellate Rule 66(E). He contends that the arguments raised by
Cecil are “devoid of any merit and are frivolous in nature.” Appellee Morelock’s Br. at 26.
Morelock claims that Cecil’s brief is filled with baseless theories, speculative statements, and
inaccurate arguments not grounded in the designated evidence. Under these circumstances,
he asserts that he is entitled to an award of appellate attorney fees. We agree.
In pertinent part, Indiana Appellate Rule 66(E) provides that a court on review “may
assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court’s
discretion and may include attorney’s fees.” “[O]ur Supreme Court [has] cautioned that the
determination to allow appellate attorney’s fees should be tempered so as not to discourage
innovation or periodic reevaluation of controlling precedent. Potter v. Houston, 847 N.E.2d
20241, 249 (Ind. Ct. App. 2006) (citing Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind.
1987)). The discretion to award attorney fees under Appellate Rule 66(E) is limited to
instances “‘when an appeal is permeated with meritlessness, bad faith, frivolity, harassment,
vexatiousness, or purpose of delay.’” Id. (quoting Orr, 512 N.E.2d at 152).
Here, Cecil’s briefs are practically devoid of articulate arguments and instead contain
incomplete sentences, disjointed arguments, and unsupported accusations of collusion by
Morelock with the Board. In light of Cecil’s failure to present cogent arguments and to
support its contentions throughout the briefs, we hold that appellate attorney fees are
appropriate in this case. See e.g., Srivastava v. Indianapolis Hebrew Congregation, Inc., 779
N.E.2d 52, 61 (Ind. Ct. App. 2002) (awarding appellate attorney fees where the appellant’s
briefs were practically devoid of articulate arguments and were filled with unsupported
accusations of conspiracies of trial court, appellee’s counsel, and variety of political figures
in effort to derail lawsuit), trans. denied. Therefore, we remand to the trial court for a
determination of Morelock’s appellate attorney fees.
Affirmed and remanded.
NAJAM, J., and MAY, J., concur.
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