The Indiana Court of Appeals reversed the dismissal of a woman’s complaint against her attorney, finding the trial court improperly dismissed it pursuant to Indiana Trial Rule 12(B)(6).
Elaine Chenore hired Robert Plantz in July 2005 to pursue a claim of money damages against William Knight, in which she won nearly $11,000 in January 2006. Later that year, Knight filed bankruptcy, which Plantz told her about, but she never received notice directly from the court. The attorney told her to “wait until notified by the Bankruptcy Court” and that he was “going to appear at the Bankruptcy Court.”
Chenore learned in July 2012 that Knight’s bankruptcy was discharged and he had paid 100 percent of claims filed, but paid her nothing because nothing was filed on her behalf.
She then sued Plantz, who filed a motion to dismiss pursuant to Trial Rule 12(B)(6), claiming the two-year statute of limitations for attorney malpractice had expired. Chenore argued the statute of limitations was equitably tolled, in that Plantz never told her he didn’t represent her for purposes of filing a claim in bankruptcy court.
The trial court granted Plantz’s motion, leading to this appeal.
“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,” Judge L. Mark Bailey wrote. “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.
“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.”
The case is Elaine Chenore v. Robert Plantz, 45A03-1509-CC-1504.