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.

Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 4 of 4