Court of Appeals of Indiana | Memorandum Decision 19A-CT-2814 | June 4, 2020 Page 1 of 11

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.

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 T H E

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,

June 4, 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 19A-CT-2814 | June 4, 2020 Page 2 of 11

Case Summary and Issue

[1] William and Penelope Stillwell (collectively, “the Stillwells”) filed a legal 

malpractice lawsuit against Cohen & Malad, LLP, Irwin Levin, Gregory Laker, 

and Daniel Chamberlain (collectively, the “Defendants”). Defendants filed a 

motion for judgment on the pleadings, in which they argued the Stillwells’ 

claims were barred by the statute of limitations. Following a hearing, the trial 

court granted the motion. The Stillwells appeal raising six issues which we 

consolidate and restate as one: whether the trial court erred in granting 

Defendants’ motion for judgment on the pleadings. Concluding the trial court 

did not err because the Stillwells’ claims are barred by the statute of limitations, 

we affirm.

Facts and Procedural History 

[2] In August 2011, the Stillwells retained Chamberlain to represent them in a slip 

and fall/amputation injury case.

1

 The parties signed a contingency fee 

agreement entitling Chamberlain to one-third of any recovery. A lawsuit was 

filed against the underlying defendants – Eagle-Kirkpatrick Management 

Company, Inc., Kirkpatrick Management Company, Inc., G.T. Services, Inc.

d/b/a Green Touch Services, Inc., and Sycamore Springs Homeowners 

Association, and Section C Homeowners Association, Inc. – in Marion 

1 William was the physically injured party and Penelope pursued a claim for loss of consortium. 
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Superior Court. In 2014, Chamberlain became a partner at the law firm Cohen 

& Malad, LLP and the Stillwells agreed to allow Chamberlain to continue to 

represent them. Chamberlain assigned his rights to recover attorney fees and 

expenses under the contract to Cohen & Malad. 

[3] In the fall of 2016, the parties reached a settlement pursuant to which the 

underlying defendants agreed to pay the Stillwells $200,000. The parties signed 

a memorandum of understanding formalizing their settlement agreement but 

continued to negotiate to resolve issues of possible third-party interests in the 

settlement amount. Several months later, the parties had worked out all the 

details of the agreement except for Medicare release language. 

[4] On January 27, 2017, the Stillwells sent a letter to Irwin Levin, a managing 

partner at Cohen & Malad, and Laker, practice chair of the firm’s personal 

injury practice, expressing their dissatisfaction with Chamberlain’s 

representation. The Stillwells alleged they had been damaged by Chamberlain’s 

“misconduct,[ ]lies, incompetent Medicare recovery handling, and violations of 

the rules of professional responsibility.” Supplemental Appendix to Appellees’ 

Brief, Volume II at 112. Specifically, they alleged:

Mr. Chamberlain willfully acted against our express instruction.

Mr. Chamberlain made a settlement offer to opposing counsel 

without consulting us.

Mr. Chamberlain had an impermissible personal conflict of 

interest with a defendant party.
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Mr. Chamberlain frequently put demands on us for litigation 

work that was his duty.

Mr. Chamberlain unfairly represented Dr. William Stillwell with 

respect to Dr. Stillwell’s age and disability.

Id.

[5] Chamberlain subsequently moved to withdraw from the case; the Stillwells filed 

pro se appearances with the trial court on February 27. See Addendum to 

Appellees’ Brief at 4. Around the same time, the underlying defendants filed a 

motion to enforce the settlement agreement because the Stillwells refused to 

execute the settlement documents. On April 7, 2017, Levin and Laker entered 

their appearances and filed a motion to intervene to assert a claim for attorney 

fees and expenses and to deposit the settlement funds with the clerk of court.2 

The Stillwells objected to the motion.

[6] The underlying defendants initially objected to Chamberlain’s withdrawal; 

however, they withdrew their objection at an April 10, 2017 hearing during 

which the Stillwells stated they had no objection to his withdrawal, and the trial 

court granted the motion to withdraw in open court. See Supp. App. to 

Appellees’ Br., Vol. II at 36-38. On May 2, the trial court issued an order 

related to the issues heard at the April 10 hearing. The trial court granted

2 At some point, the underlying defendants tendered the settlement funds and Cohen & Malad held the funds 

in their trust account until the specifics of the disbursement were worked out.
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Cohen & Malad’s motion to intervene, allowed Cohen & Malad to deposit the 

settlement funds with the clerk of court, granted the underlying defendants’ 

motions to enforce the settlement agreement, and reiterated that it had granted 

Chamberlain’s motion to withdraw in open court on April 10. See id. at 118-20.

[7] On July 11, the trial court held a hearing on various outstanding motions. On 

July 26, the trial court issued orders enforcing the settlement agreement,

entering judgment against the Stillwells and dismissing the case with prejudice 

as to the underlying defendants, and ordering the clerk of court to distribute the 

requested attorney fees and expenses to Chamberlain and Cohen & Malad and 

the remainder to the Stillwells. The Stillwells appealed, challenging the 

enforcement of the settlement agreement, Cohen & Malad’s intervenor status, 

and the attorney fees and expenses they were ordered to pay. Stillwell v. EagleKirkpatrick Mgmt. Co., Inc., No. 49A02-1708-CT-1919 (Ind. Ct. App. July 6, 

2018), trans. denied, cert. denied, 139 S.Ct. 2756 (2019). A panel of this court 

affirmed in all respects. Id. at *2-4.

[8] On April 30, 2019, the Stillwells filed their Complaint for Legal Malpractice, 

Attorney Deceit, Fraud Upon the Court, Breach of Fiduciary Duty, and 

Demand for Jury Trial.3 Defendants’ filed their answer to the Stillwells’

3 The same day, the Stillwells also filed a legal malpractice claim against Price Waicukowski Joven & Catlin, 

LLC, the attorneys the Stillwells consulted regarding their contemplated malpractice action against Cohen & 

Malad. On June 21, 2019, the trial court consolidated the Stillwells’ complaints for trial. See Appellants’

Appendix, Volume 2 at 2-4. The trial court granted judgment on the pleadings in both cases, though at 

different times, and the Stillwells have appealed both orders under separate appellate cause numbers.
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complaint on July 1 and attached several exhibits: Exhibit A, a certified copy 

of the previous Court of Appeals decision; Exhibit B, the transcript filed with 

the Court of Appeals in the prior appeal; Exhibit C, the Stillwells’ January 27 

letter to Cohen & Malad regarding Chamberlain’s inadequate representation; 

and Exhibit D, the trial court’s May 2 order stating Chamberlain’s motion to 

withdraw was granted in open court and granting Cohen & Malad’s motion to 

intervene. See Supp. App. to Appellees’ Br., Vol. II at 7, 11-120.

[9] On August 20, 2019, Defendants filed a motion for judgment on the pleadings

and supporting memorandum arguing that the Stillwells’ claims are barred by 

the statute of limitations. The trial court held a hearing on the motion, and on 

October 18, the trial court issued an order granting Defendants’ motion and 

finding that the Stillwells’ claims are barred by the two-year statute of 

limitations. See Appealed Order at 5-8, ¶¶12-19.

[10] The Stillwells filed a motion requesting that the trial court certify its order 

granting judgment on the pleadings as a final and appealable order. Defendants 

filed a response arguing that the motion was moot because the judgment was 

already a final and appealable order, a point which the Stillwells conceded. On 

November 26, 2019, the trial court denied the Stillwells motion requesting the 

court certify the order granting judgment on the pleadings. See Supp. App. to 

Appellees’ Br., Volume II at 161-62.

[11] The Stillwells filed their Notice of Appeal with this court on November 27. 

Defendants subsequently filed a Verified Motion to Dismiss Belated Appeal
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contending the Stillwells failed to file their notice of appeal within thirty days of 

the final judgment, dated October 18. Defendants’ motion to dismiss was 

denied,4 and we now address the merits of the parties’ arguments.

Discussion and Decision 

I. Judgment on the Pleadings: Standard of Review

[12] We review de novo a trial court’s ruling on a Trial Rule 12(C) motion for 

judgment on the pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 

(Ind. 2010). We accept as true the material facts alleged in the complaint and 

base our ruling solely on the pleadings. Veolia Water Indianapolis, LLC v. Nat’l. 

Trust Ins. Co., 3 N.E.3d 1, 4-5 (Ind. 2014). “We will affirm the trial court’s 

grant of a T.R. 12(C) motion for judgment on the pleadings when it is clear 

from the face of the pleadings that one of the parties cannot in any way succeed 

under the operative facts and allegations made therein.” Davis ex. Rel. Davis v. 

Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001), trans. denied.

4 The Defendants ask this court to revisit the issue of whether the Stillwells’ appeal should be dismissed due 

to the untimely filing of their notice of appeal. Even though our motions panel has already ruled on this 

issue, Defendants are not precluded from presenting their argument to us. Miller v. Hague Ins. Agency, Inc., 

871 N.E.2d 406, 407 (Ind. Ct. App. 2007). Nonetheless, we are reluctant to overrule issues decided by the 

motions panel. Id. In this case, despite the Stillwells’ untimely notice of appeal, our motions panel exercised 

its discretion and allowed this appeal to proceed – a decision we will not second guess. See In re Adoption of 

O.R., 16 N.E.3d 965, 971 (Ind. 2014) (stating that a party’s filing of an untimely notice of appeal does not 

“deprive the appellate courts of jurisdiction to entertain the appeal”); see also Indiana Appellate Rule 1. As 

such, we decline to reconsider the denial of Defendants’ motion to dismiss and will address the merits of the 

Stillwells’ arguments. 
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II. Statute of Limitations

[13] The Stillwells argue the trial court improperly determined that their legal 

malpractice complaint was barred by the statute of limitations. Specifically, 

they contend that they filed their complaint within the two-year statute of 

limitations because Cohen & Malad remained in active litigation until July 10, 

2017. We disagree.

[14] In this case, the Stillwells filed a complaint for legal malpractice raising several 

theories: legal malpractice, attorney deceit, breach of fiduciary duty, and fraud 

upon the court. Although they raise four theories, the substance of their entire 

complaint is a legal malpractice claim and we will evaluate it as such. See

Shideler v. Dwyer, 275 Ind. 270, 276, 417 N.E.2d 281, 285 (1981) (“[I]t is the 

nature or substance of the cause of action, rather than the form of the action, 

which determines the applicability of the statute of limitations” (internal 

quotation omitted)).

[15] The statute of limitations for a legal malpractice action is two years. Ind. Code 

§ 34-11-2-4(a) (“An action for . . . injury to personal property . . . or . . . a 

forfeiture of penalty given by statute . . . must be commenced within two (2) 

years after the cause of action accrues.”). The statute of limitations for a breach 

of fiduciary duty claim or a civil action seeking treble damages for attorney 

deceit is also two years. See id.; Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140, 

145 (Ind. Ct. App. 2001) (stating that a breach of fiduciary duty claim is a tort 

claim for injury to personal property), trans. denied; Ind. Code § 33-43-1-8
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(attorney deceit statute and action for treble damages); Browning v. Walters, 616 

N.E.2d 1040, 1047 (Ind. Ct. App. 1993) (stating the statute of limitations for 

treble damages is two years).

[16] For a cause of action to accrue, it is not necessary that the full extent of damage 

be known or even ascertainable, but only that some ascertainable damage has 

occurred. Myers v. Maxson, 51 N.E.3d 1267, 1276 (Ind. Ct. App. 2016), trans. 

denied. 

[L]egal malpractice actions are subject to the “discovery rule,”

which provides that the statute of limitations does not begin to

run until such time as the plaintiff knows, or in the exercise of 

ordinary diligence could have discovered, that he had sustained 

an injury as the result of the tortious act of another. 

Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765 (Ind. Ct. App. 2003), 

trans. denied. And where the attorney continues to represent the client in the 

same matter in which the alleged malpractice occurred, the cause of action 

accrues at the termination of an attorney’s representation of a client in the same 

matter in which the malpractice occurred. Id. at 766-67.

[17] The Stillwells filed their complaint on April 30, 2019. Therefore, if their action 

accrued more than two years prior to that date – in other words, before April 30, 

2017 – their claims are barred by the statutes of limitations. Defendants’ 

answer and attached exhibits reveal that the Stillwells wrote a letter to Levin 

and Laker expressing their dissatisfaction with Chamberlain’s representation on 

January 27, 2017. Therefore, as of January 27, more than two years before the 
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filing of their complaint, the Stillwells clearly believed they had sustained at 

least some injury as a result of Chamberlain’s alleged inadequate 

representation. See Supp. App. to Appellees’ Br., Vol. II at 112 (the Stillwells 

alleging in their letter they had been damaged by Chamberlain’s “misconduct,

[ ]lies, incompetent Medicare recovery handling, and violations of the rules of 

professional responsibility”). Chamberlain continued to represent the Stillwells

after they sent the letter; however, soon thereafter, he moved to withdraw his 

representation of the Stillwells. The Stillwells then filed pro se appearances. 

See Appellants’ App., Vol. 2 at 26, ¶ 35. Thus, the accrual date is the date that

Cohen & Malad’s representation of the Stillwells in the slip and fall case ended.

[18] The May 2, 2017 order included in the Defendants’ answer establishes that at 

the April 10 hearing, the Stillwells stated they had no objection to Chamberlain’s 

motion to withdraw and the trial court granted the motion in open court. 

Therefore, Cohen & Malad’s representation of the Stillwells was terminated on 

April 10, 2017 – more than two years before the Stillwells filed their legal 

malpractice action. 

[19] To the extent the Stillwells argue that the statute of limitations did not begin to 

run until July 10, 2017 because Cohen & Malad was actively involved in the 

litigation until that time, they are incorrect. The trial court granted Cohen & 

Malad’s motion to withdraw as counsel for the Stillwells on April 10 and during 

that same hearing, Mrs. Stillwell conceded she had “no relationship with 

Cohen & Malad as of this moment or a few moments ago.” Supp. App. to 

Appellees’ Br., Vol. II at 51. Following the hearing, after Chamberlain’s 
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appearance on behalf of the Stillwells had already been withdrawn, the trial 

court issued an order granting Cohen & Malad’s motion to intervene to deposit 

the settlement funds with the court. Cohen & Malad remained active in the 

case as intervenors for this purpose until the trial court issued its order enforcing 

the settlement agreement, entering judgment against the Stillwells, dismissing 

the case, and ordering the clerk to distribute attorney fees and expenses to 

Cohen & Malad. 

[20] We conclude the allegations and facts contained in the pleadings demonstrate 

that the Stillwells’ legal malpractice action accrued more than two years before 

they filed their complaint on April 30, 2019. Therefore, their claims are barred 

by the statute of limitations and “it is clear from the face of the pleadings that 

[they] cannot in any way succeed under the operative facts and allegations 

made therein.” Davis ex. Rel. Davis, 747 N.E.2d at 1149. As such, the trial court 

properly granted Defendants’ motion for judgment on the pleadings.

Conclusion

[21] We conclude the Stillwells’ claims are barred by the statute of limitations and 

therefore, the trial court did not err in granting the Defendants’ motion for 

judgment on the pleadings. Accordingly, the judgment of the trial court is 

affirmed.

[22] Affirmed.

May, J., and Vaidik, J., concur.