William Stillwell and Penelope Stillwell v. Cohen & Malad LLP, Irwin B. Levin, Gregory L. Laker, Daniel S. Chamberlain, and Does 1 through 7, inclusive (mem. dec.)

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 17 2020, 8:36 am
court except for the purpose of CLERK
establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEES
William Stillwell Michelle A. Spahr
Penelope Stillwell Peter A. Schroeder
Clearwater Beach, Florida Norris Choplin Schroeder LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Stillwell and September 17, 2020
Penelope Stillwell, Court of Appeals Case No.
Appellants-Plaintiffs, 19A-CT-2814
Appeal from the Marion Superior
v. Court
The Honorable P.J. Dietrick, Judge
Cohen & Malad LLP, Trial Court Cause No.
Irwin B. Levin, Gregory L. 49D12-1904-CT-17404
Laker, Daniel S. Chamberlain,
and Does 1 through 7, inclusive,
Appellees-Defendants,
Robb, Judge.
Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 1 of 4
[1] This case comes before us on rehearing. In Stillwell v. Cohen & Malad LLP, No.
19A-CT-2814, 2020 WL 2963341, at *1-3 (Ind. Ct. App. June 4, 2020), the
Stillwells appealed the trial court’s order granting the Defendants’ motion for
judgment on the pleadings in response to their Complaint for Legal
Malpractice, Attorney Deceit, Fraud Upon the Court, Breach of Fiduciary
Duty, and Demand for Jury Trial arising out of the Defendants’ representation
of them in a personal injury lawsuit that was ultimately settled. This court held
that “[a]lthough [the Stillwells] raise four theories, the substance of their entire
complaint is a legal malpractice claim” and therefore, the trial court did not err
in granting the motion because their claim was barred by a two year statute of
limitations. Id. at *4-5 (emphasis added).
[2] The Stillwells now petition for rehearing, claiming that this court erred by
overlooking and omitting from consideration certain material facts, namely that
their attorney “illegally negotiated $181,327.01 of [the] amputation lawsuit
settlement drafts without [their] knowledge [and then] converted the funds to
his personal use.” Petition for Rehearing by Appellants at 8-9. The Stillwells
now claim this factual allegation constitutes a civil fraud claim, which has a six-
year statute of limitations, and assert that the cases cited by this court in our
original opinion were “unavailing for fraud.” Id. at 5. We grant rehearing for
the limited purpose of clarifying our original opinion and addressing the
Stillwells’ new claim on rehearing.
[3] Contrary to the Stillwells’ assertion, the fact that our original opinion did not
detail each and every single factual allegation contained in their complaint does
Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 2 of 4
not mean this court overlooked or failed to consider all the factual allegations.
In rendering our original opinion, this court carefully reviewed the pleadings
and concluded the Stillwells’ entire complaint, including all the factual allegations,
constituted a legal malpractice claim. Therefore, we held that the Stillwells’
claims were barred by the two-year statute of limitations for legal malpractice.
[4] In their petition for rehearing, the Stillwells now claim that Cohen & Malad’s
alleged unlawful cashing and personal use of the settlement drafts constitutes a
civil fraud claim, which has a six-year statute of limitations. This is the first
time the Stillwells have raised any claim of civil fraud. “One of the bedrock
rules of appellate procedure is that an issue not briefed or urged in the original
briefs on appeal generally cannot be raised for the first time in a petition for
rehearing.” Hannoy v. State, 793 N.E.2d 1109, 1111 (Ind. Ct. App. 2003), trans.
denied. However, “[i]ssues may be raised for the first time on rehearing when a
state court acts in an unanticipated way to deprive a party of the opportunity to
make an argument or present a valid defense based on the Federal
Constitution.” Strong v. Jackson, 781 N.E.2d 770, 772 (Ind. Ct. App. 2003),
trans. denied. Clearly, that is not what occurred here. The Stillwells were not
denied any opportunity to raise this issue or argument in their original brief.
Instead, they are now focusing on this particular factual allegation and
attempting to show a civil fraud claim when they failed to do so in the first
place. They may not retroactively advance a justification for a longer statute of
limitations. Therefore, this issue is waived.
Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 3 of 4
[5] We grant the Stillwells’ petition for rehearing, but in so doing we re-affirm our
original opinion in all respects, subject to the above clarifications.
May, J., and Vaidik, J., concur.
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