Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 1 of 4

MEMORANDUM DECISION

ON REHEARING

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.

APPELLANTS PRO SE

William Stillwell

Penelope Stillwell

Clearwater Beach, Florida

ATTORNEYS FOR APPELLEES

Michelle A. Spahr

Peter A. Schroeder

Norris Choplin Schroeder LLP

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

William Stillwell and 

Penelope Stillwell,

Appellants-Plaintiffs,

v.

Cohen & Malad LLP, 

Irwin B. Levin, Gregory L. 

Laker, Daniel S. Chamberlain, 

and Does 1 through 7, inclusive,

Appellees-Defendants,

September 17, 2020

Court of Appeals Case No.

19A-CT-2814

Appeal from the Marion Superior 

Court

The Honorable P.J. Dietrick, Judge

Trial Court Cause No.

49D12-1904-CT-17404

Robb, Judge.
Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CT-2814 | September 17, 2020 Page 2 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 sixyear 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 3 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 4 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.