Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CC-1699 | November 16, 2017 Page 1 of 12

MEMORANDUM DECISION

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 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Edward P. Grimmer

Daniel A. Gohdes

Edward P. Grimmer, P.C.

Crown Point, Indiana

ATTORNEY FOR APPELLEES

David J. Beach

Eichhorn & Eichhorn, LLP

Hammond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Cathy M. Djuric,

Appellant-Defendant/Counter-Plaintiff,

v.

Levy & Dubovich,

Appellee-Plaintiff/Counter-Defendant,

and

Judith A. Levy-Adler and

Debra Lynch Dubovich,

Appellees-Third-Party Defendants

November 16, 2017

Court of Appeals Case No.

45A05-1707-CC-1699

Appeal from the Lake Superior 

Court

The Honorable John M. Sedia, 

Judge

Trial Court Cause No.

45D01-1501-CC-5

Baker, Judge.
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[1] Cathy Djuric appeals the trial court’s order granting summary judgment in 

favor of Levy & Dubovich (the Law Firm) on the Law Firm’s complaint against 

Djuric and in favor of the Law Firm, Judith Levy-Adler, and Debra Dubovich 

on Djuric’s counterclaim and third-party complaint against those parties. 

Djuric argues as follows: (1) the trial court erred by finding as a matter of law 

that the attorney fee agreement between Djuric and the Law Firm was not 

orally modified; and (2) the trial court erred by finding that Djuric’s legal 

malpractice claims in the counterclaim and third-party complaint are timebarred. Finding no error, we affirm.

Facts

[2] In August 2009, Djuric filed a petition to dissolve her marriage. On October 

12, 2009, Djuric entered into an Attorney Fee Agreement with the Law Firm to 

represent her in the dissolution proceedings. Among other things, Djuric 

agreed to pay $250 per hour for the work of Levy-Adler as well as a $5,000 

retainer. The Agreement explicitly states that “I understand that, even though 

we may seek to have the opposing party pay my attorney fees and costs or a 

portion thereof, I am primarily responsible for the payment of the attorney fees 

and costs.” Appellant’s App. Vol. II p. 74. Djuric agreed that she would 

receive monthly billing statements and pay the balance of fees and costs owed 

on a monthly basis. The Agreement stated that “the law firm reserves the right 

to withdraw as my attorney after ten (10) days written notice to me at the last 

address I have provided, in writing. The law firm reserves the right to withdraw 

as my attorney with, or without just cause.” Id. at 75. Finally, the Agreement’s 
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modification clause provides that “[t]his agreement shall only be modified in 

writing signed by both myself and my attorney” and an integration clause states

that “I acknowledge that there are no other fee agreements, written or verbal, 

between myself and the attorney.” Id. Djuric and Levy-Adler each signed the 

Agreement.

[3] The dissolution proceedings were contentious. After three mediation sessions, 

Djuric and Levy-Adler believed they had reached an agreement in principle but 

Djuric’s ex-husband made additional demands, causing Djuric to become upset 

with Levy-Adler. In July 2011, Levy-Adler advised Djuric that she should 

withdraw if Djuric had doubts about her representation. The following week, 

Djuric continued expressing doubts about Levy-Adler’s representation, so on 

July 20, 2011, Levy-Adler informed Djuric over the phone and in writing that 

she was giving notice of her intent to withdraw in ten days. Levy-Adler had 

concluded that her relationship with Djuric had deteriorated to the point that 

she could no longer provide effective representation.

[4] On August 5, 2011, Levy-Adler filed a motion to withdraw her appearance in 

the dissolution proceedings. Djuric did not object. On August 9, 2011, the trial 

court granted the motion to withdraw. Djuric obtained new counsel, who first 

appeared on August 29, 2011. Her new attorney did not object to Levy-Adler’s 

withdrawal or ask the trial court to reconsider the order granting leave to 

withdraw. The trial court entered an order of final disposition in the dissolution 

proceedings on October 21, 2011, and Djuric did not appeal that order or the 

order granting Levy-Adler’s motion to withdraw.
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[5] On January 16, 2015, the Law Firm filed a complaint against Djuric, seeking to 

collect unpaid legal fees. As of October 31, 2014, Djuric allegedly owed over 

$30,000 in legal fees to the Law Firm. Throughout the Law Firm’s 

representation of Djuric, the only payment she made was the initial retainer of 

$5,000. Djuric eventually claimed that Levy-Adler modified the contract with 

multiple verbal assertions along the following lines: “Don’t worry, the amount 

[of fees owed] is inflated and I will recover the fees from your husband.” 

Appellant’s Br. p. 14. Following the mediation hearing, Djuric claims that 

Levy-Adler “again reassured me she would still collect all attorney fees from 

my ex-husband and whatever was collected from him would be accepted as 

complete payment for my attorney expenses.” Appellant’s App. Vol. II p. 88.

[6] On February 24, 2015, Djuric filed an answer, counterclaim, and third-party 

complaint against Levy-Adler and Debra Dubovich (another attorney with the 

Law Firm). In her answer, Djuric denied the allegations of the complaint and 

raised, among others, the following affirmative defenses: 

• the Law Firm breached the Agreement by, among other things, “fail[ing] 

to provide legal services in conformity with generally accepted standard 

of professional care”; 

• the Law Firm breached the Agreement by “abandon[ing]” Djuric shortly 

before the final hearings; 

• the Agreement violated the Professional Conduct Rules; and 

• Djuric has a right of setoff against any amount she might owe for the 

damages she allegedly suffered as a result of the Law Firm’s “breach of 

contract, abandonment, and negligence.” Id. at 23-24. 
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In her counterclaim and third-party complaint, Djuric raised the following 

claims:

• The Law Firm and Levy-Adler breached the standard of care owed to 

Djuric and Djuric was damaged as a result.

• The Law Firm and Levy-Adler breached their contractual duties to 

Djuric by “[a]bandon[ing] their contractual duty of representation at a 

time that placed [] Djuric in peril and danger” and by “[e]ngaging in a 

fraudulent and deceptive pattern of conduct in their performance of the 

contract terms . . . .” Id. at 25.

On February 28, 2017, the Law Firm filed a motion for summary judgment, 

seeking summary judgment in its favor on the complaint and counterclaim and 

in favor of Levy-Adler and Dubovich on the third-party complaint. On April 

19, 2017, Djuric filed a motion opposing summary judgment on the third-party 

complaint and counterclaim and seeking summary judgment in her favor on the 

complaint.

[7] On July 10, 2017, the trial court ruled in favor of the Law Firm, Levy-Adler, 

and Dubovich, granting summary judgment in their favor. In relevant part, the 

trial court found as follows:

[The Law Firm] demonstrated the absence of any genuine issue 

of fact on Djuric’s breach of contract claim: statements were sent 

to Djuric as provided in the Contract and no evidence was 

presented that Djuric disputed any of them in writing as provided 

in the Contract. Djuric came forward with contrary evidence 

that she and Levy-Adler verbally modified the contract by 

asserting in her affidavit that Levy-Adler told her that she would 

not be responsible for her fees and that Levy-Adler would obtain 

her fees from Djuric’s husband.
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The Contract provided in its penultimate section that it could be 

modified only in writing and signed by both Levy-Adler and 

Djuric. No evidence was designated by Djuric that the Contract 

was modified in writing. Even presuming that the oral 

modification could supersede this section of the contract, the 

modification itself, because it is also a contract, requires all of the 

requisite elements of a contract. One element that Djuric must 

satisfy is that the modification to the Contract was supported by 

adequate consideration. Djuric’s affidavit asserts nothing more 

than an unenforceable promise by Levy-Adler with no 

consideration whatsoever. There was no oral modification of the 

contract.

Djuric’s claim of improper withdrawal also fails. . . . Djuric is 

precluded from pursuing the propriety of Levy-Adler’s 

withdrawal because (whether the doctrine is styled claim 

preclusion, collateral estoppel or res judicata) she had the 

opportunity to do so after Levy-Adler filed her Motion to 

Withdraw and before, or even after, the Order approving the 

Motion. All issues surrounding the propriety of Levy-Adler’s 

withdrawal as Djuric’s attorney were adjudicated in the August 

9, 2011 Order. For this Court to second-guess this Order would 

amount to an impermissible collateral attack upon it. If there 

were any violation of the Rules of Professional Conduct . . . the 

proper forum for a determination of any such violation is the 

Indiana Attorney Disciplinary Commission, not this Court.

Finally, Djuric’s claim for legal malpractice was required by IC 

34-11-2-4 to be filed within two years of the time her cause of 

action accrued. Levy-Adler, Dubovich and [the Law Firm] 

provided no legal services to Djuric after August 9, 2011. 

Djuric’s counterclaim and third-party claims were filed on 

February 24, 2015. . . . The claim was filed long after the period 

of limitations had run.
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Id. at 13-14 (internal citations omitted). The trial court entered judgment in 

favor of the Law Firm in the amount of $30,252.95 plus 8% interest. Djuric 

now appeals.

Discussion and Decision

[8] Djuric argues that the trial court erred by granting summary judgment in favor 

of the Law Firm, Levy-Adler, and Dubrovich. Our standard of review on 

summary judgment is well established:

We review summary judgment de novo, applying the same 

standard as the trial court: “Drawing all reasonable inferences in 

favor of . . . the non-moving parties, summary judgment is 

appropriate ‘if the designated evidentiary matter shows that there 

is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A 

fact is ‘material’ if its resolution would affect the outcome of the 

case, and an issue is ‘genuine’ if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

I. Fee Agreement Modification

[9] Djuric first argues that the trial court erred by finding that there was no oral 

modification of the Attorney Fee Agreement. When interpreting a contract, it 

is well established that “‘[c]lear and unambiguous terms in the contract are 

deemed conclusive, and when they are present we will not construe or look to 
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extrinsic evidence, but will merely apply the contractual provisions.’” AM Gen., 

LLC v. Armour, 46 N.E.3d 436, 440 (Ind. 2015) (quoting Ryan v. Ryan, 972 

N.E.2d 359, 364 (Ind. 2012)).

[10] Initially, we acknowledge that the Attorney Fee Agreement contains a clause 

requiring that any modification of that agreement must be in writing. 

Appellant’s App. Vol. II p. 75. Our Supreme Court has held, however, that 

“‘[e]ven a contract providing that any modification . . . must be in writing, 

nevertheless may be modified orally.’” Id. at 443 n.3 (quoting Sees v. Bank One, 

Ind., N.A., 839 N.E.2d 154, 161 (Ind. 2005)). Consequently, the existence of the 

modification clause does not end our inquiry.

[11] Assuming solely for argument’s sake that the oral agreement occurred as Djuric 

contends and that the oral modification could supersede the modification 

clause, we must determine whether that oral modification bears all the requisite 

elements of a contract. Id. at 443. Specifically, we must consider whether there 

is adequate consideration supporting that modification.

[12] As noted above, Djuric claims that throughout Levy-Adler’s representation of 

her, Levy-Adler stated that she would collect any attorney fees owed from 

Djuric’s then-husband. Specifically, Djuric describes their conversations as 

follows:

On more than a few occasions, including telephone 

conversations and while we sat in mediation sessions, Attorney 

Levy Adler told me, I would not be responsible for her fees, that 

she would get her fees from my then husband . . . . I told her I 
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did not know what the fees were, and she reaffirmed, that I was 

not to worry, she would get them from [the husband]. 

During . . . some of those comments she said the fees and hours 

were inflated, so she had some room to bargain on the amount.

Appellant’s App. Vol. II p. 116.

[13] Djuric argues that the consideration supporting the alleged oral modification 

was her agreement to continue the attorney-client relationship rather than 

terminating it. We cannot agree. The original bargained-for agreement 

provided that, in exchange for the provision of legal services, Djuric would pay 

the agreed-upon fees and costs. Continuing to accept those same legal services 

cannot constitute new and independent consideration supporting the alleged 

modification. See, e.g., Hinkel v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d 

766, 770-71 (Ind. Ct. App. 2010) (noting that if contracting party had assumed 

certain duties as consideration for original agreement, a subsequent promise to 

fulfill those same duties cannot constitute adequate independent consideration 

for an alleged modification of the contract). We agree with the trial court that 

Djuric’s assertions amount to claims of an unenforceable promise supported by 

no consideration whatsoever. Consequently, the trial court did not err by 

finding as a matter of law that there was no enforceable oral modification of the 

Attorney Fee Agreement. As this is the only argument made by Djuric 

regarding the trial court’s grant of summary judgment on the Law Firm’s 
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complaint against her,1 we find that the trial court did not err by granting 

summary judgment in favor of the Law Firm on its complaint.

II. Legal Malpractice Claim

[14] Next, Djuric argues that the trial court erred by finding that her legal 

malpractice claims, which were included in both her counterclaim and thirdparty complaint, were barred by res judicata2 and the relevant statute of 

limitations.

[15] There is a two-year statute of limitations for legal malpractice claims, Ind. 

Code § 34-11-2-4, and it is undisputed that Djuric filed her legal malpractice 

claims several years outside of that window. Djuric argues that Indiana Trial 

Rule 13(J) permits her to raise her claims at this late date.

[16] In relevant part, Trial Rule 13(J) provides that a statute of limitations “shall not 

bar a claim asserted as a counterclaim to the extent that (1) it diminishes or 

defeats the opposing party’s claim if it arises out of the transaction or 

occurrence that is the subject-matter of the opposing party’s claim, or if it could 

have been asserted as a counterclaim to the opposing party’s claim before it (the 

counterclaim) was barred . . . .” In interpreting Trial Rule 13(J), this Court has 

distinguished between counterclaims in recoupment and counterclaims that 

 

1 The trial court’s order did not address any of the affirmative defenses raised by Djuric aside from breach of 

contract, nor does she address them on appeal.

2 Because we find the statute of limitations to be dispositive, we will not address the trial court’s conclusion 

regarding res judicata.
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seek affirmative relief. See Delacruz v. Wittig, 42 N.E.3d 557, 560-62 (Ind. Ct. 

App. 2015), trans. denied. We have held that where a counterclaim could have 

been filed as an independent action and seeks affirmative relief (as opposed to 

merely seeking recoupment or setoff), Trial Rule 13(J) “simply does not operate 

to toll the statute of limitations.” Id. at 562.

[17] Here, in Djuric’s counterclaim and third-party complaint, she alleged that the 

Law Firm, Levy-Adler, and Dubrovich committed legal malpractice. As 

compensation for the malpractice, Djuric requested both “damages in offset to 

the fees sued upon” and compensatory damages. Appellant’s App. p. 25. As in 

Delacruz, Djuric could have filed a legal malpractice claim as an independent 

action; likewise, her claim sought affirmative relief (compensatory damages) as 

opposed to mere recoupment or setoff.3 

[18] Furthermore, the legal malpractice claims do not “diminish or defeat” the Law 

Firm’s claim for breach of contract. In other words, whether Levy-Adler, 

Dubrovich, or any other attorney committed legal malpractice does not affect 

the Law Firm’s ability to establish liability on its primary claim that Djuric 

owes money based on the Attorney Fee Agreement.4 Under these 

 

3 Djuric makes no argument on appeal regarding her legal malpractice affirmative defense to the Law Firm’s 

complaint.

4

Indeed, the independence of the complaint and Djuric’s legal malpractice claim is illustrated by her 

summary judgment motion, in which she asserts that (1) she is entitled to judgment as a matter of law on the 

Law Firm’s complaint; and (2) even if judgment were entered in her favor on the complaint, her counterclaim 

(and, presumably, third-party complaint) would survive for trial. Appellant’s App. Vol. II p. 111-12.
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circumstances, we find that Trial Rule 13(J) does not salvage Djuric’s untimely 

legal malpractice claims. Consequently, the trial court did not err in granting 

summary judgment in favor of the Law Firm, Levy-Adler, and Dubrovich on 

the third-party complaint and counterclaim.

[19] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.