After rehearing, COA reaffirms judgment in favor of Barnes & Thornburg

After granting a rehearing to adopt a previous holding by the Indiana Supreme Court, the Indiana Court of Appeals Thursday reaffirmed a lower court’s grant of summary judgment in favor of Barnes & Thornburg LLP on a legal malpractice claim.

In the case of Central Indiana Podiatry, P.C., et al. v. Barnes & Thornburg, LLP, 62 N.E.3d, 440, 447 (Ind. Ct. App. 2016), the “Miller parties” – consisting of Central Indiana Podiatry P.C., Foot & Ankle Surgery Center and Anthony Miller, D.P.M. – sued Barnes & Thornburg in Marion Superior Court on the basis of alleged legal malpractice stemming from the firm’s representation of the parties in a claim filed by a podiatrist. As the legal fees in that case rose, Barnes & Thornburg provided a release agreement that allowed the parties to pay $145,000, but also released the firm from “any and all claims … which the Miller Parties now have, have had, or may later claim to have arising from or related to any respect of B&T’s representation … .”

The Marion Superior Court granted summary judgment to Barnes & Thornburg based on that clause, which the Indiana Court of Appeals affirmed in October. The Miller parties petitioned for rehearing, arguing that the grant of summary judgment “runs afoul” of the Indiana Supreme Court’s decision in Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986). In that fraudulent concealment case, the high court held that, “The defendant may seek summary judgment, in which event it becomes incumbent upon the plaintiff to present facts raising a genuine issue in avoidance of the statute of limitations.”

“While it appears at first blush that Nichols would create an exception to Trial Rule 9(B) that applies only to fraudulent concealment claims raised in response to a defendant raising a statute-of-limitations affirmative defense, such defense is among a long, non-exhaustive list of affirmative defense set forth in Trial Rule 8(C),” Judge Melissa May wrote. “B&T’s defense of release is also listed in Rule 8(C).”

In the instant case, May wrote that the Miller parties did not include allegations of fraudulent creation of a fee release agreement, so Barnes answered the complaint by raising the fee release as an affirmative defense, then moved for dismissal and summary judgment on that basis. Rather than respond to Barnes’ answer, May wrote that the Miller parties argued in response to the motions to dismiss and for summary judgment that the fee release was obtained by fraud.

“Pursuant to Nichols, this was a procedurally appropriate manner in which to respond without waiving the claim of fraud,” the judge wrote. “Thus, we grant rehearing to vacate our earlier holding in which we concluded the Miller Parties were precluded from advancing their claims of fraud because they did not specifically plead them as required by Indiana Trial Rules.”

The COA vacated its previous decision and still affirmed the grant of summary judgment to the law firm, with May writing that “none of the evidence Miller cites suggest B&T engaged in the web of concealment that Miller weaves in his argument.”

“Miller’s position regarding his concern with a durational time limit seems to change based on what would benefit him in a particular case,” May continued. “The changing nature of Miller’s own testimony cannot create a genuine issue of material fact to defeat B&T’s motion for summary judgment … .”

Judge Terry Crone concurred, but noted again in a separate opinion, as he did in the original October decision, that he has concerns about “’allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice.’” His concerns were echoed by Sen. Liz Brown, R-Fort Wayne, who authored a bill during the 2017 legislative session prohibiting attorneys from prospectively releasing themselves from malpractice liability.

The case is Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, 49A02-1603-PL-498.

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