MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 23 2019, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brenda L. White Crystal G. Rowe
Indianapolis, Indiana Kightlinger & Gray, LLP
New Albany, Indiana
Louis J. Britton
Kightlinger & Gray, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brenda L. White, September 23, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-2854
v. Appeal from the Marion Superior
Court
Macey & Swanson LLP, The Honorable Gary L. Miller,
Appellee-Defendant. Judge
Trial Court Cause No.
49D03-1703-CT-9677
Barnes, Senior Judge.
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Statement of the Case
[1] Brenda L. White appeals the trial court’s grant of summary judgment to Macey
& Swanson LLP (M&S). We affirm.
Issue
[2] The primary issue is whether the trial court erred in granting summary
judgment to M&S.
Facts and Procedural History
[3] In 1995, White filed complaints at the Indiana Worker’s Compensation Board
against two temporary services agencies. She claimed that she was exposed to
dangerous chemicals while she was working at jobs she obtained through the
temp agencies, and the chemicals harmed her.
[4] In 1998, White hired Richard Swanson of M&S to represent her in the worker’s
compensation cases. He negotiated a settlement agreement with the temp
agencies in 1999. White received $1,000 from each agency, and the parties
stipulated to the dismissal of both cases. The Board accepted the stipulations
and issued final judgments in both cases.
[5] In 2011, White filed a complaint with the Indiana Supreme Court Disciplinary
Commission against Swanson. She alleged that she had continued to
experience harm from the chemical exposure and that Swanson had failed to
provide adequate representation in the worker’s compensation cases. The
Commission dismissed her complaint with no further action. White filed
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additional, similar complaints against Swanson in 2013 and 2017, and the
Commission also dismissed them.
[6] The current case began on March 10, 2017, when White filed a civil complaint
against Swanson under Cause Number 49D03-1703-CT-9677 (CT-9677),
alleging malpractice arising out of Swanson’s representation in the worker’s
compensation cases. Swanson filed a motion for summary judgment, which the
trial court granted on January 12, 2018. White filed a motion to correct error,
which the trial court denied.
[7] On March 1, 2018, Swanson filed a notice of chapter 7 bankruptcy filing. On
March 6, 2018, White filed a notice of appeal, initiating a case in this Court
under Cause Number 18A-CT-437. That case is being held in abeyance while
Swanson’s bankruptcy case proceeds.
[8] Meanwhile, on May 3, 2018, White filed a complaint against M&S in CT-9677,
alleging malpractice arising out of the firm’s representation in the worker’s
compensation cases. M&S filed a motion for summary judgment, asserting that
White’s claim was barred by the applicable statute of limitation. Next, White
filed a one-page motion asking the trial court to toll or waive the statute of
limitation. The trial court denied White’s motion and held oral argument on
M&S’s motion for summary judgment. On November 1, 2018, the trial court
granted M&S’s motion for summary judgment and entered judgment in favor of
M&S. This appeal followed.
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Discussion and Decision
1. Procedural Default
[9] M&S argues that White has waived appellate review of her claims because her
appellant’s brief fails to comply with the Indiana Rules of Appellate Procedure.
Pro se litigants are held to the same legal standards as licensed attorneys. Basic
v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). “We will not become an
‘advocate for a party, or address arguments that are inappropriate or too poorly
developed or expressed to be understood.’” Id. at 984 (quoting Perry v.
Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans.
denied). While we prefer to decide issues on the merits, where an appellant’s
noncompliance with the Appellate Rules is so substantial as to impede our
consideration of the issues, we may deem the alleged errors waived. Id.
[10] Indiana Appellate Rule 46 governs the arrangement and contents of appellate
briefs. Specifically, Appellate Rule 46(A)(2) states that all appellant’s briefs
must contain a table of authorities, as follows: “The table of authorities shall
list each case, statute, rule, and other authority cited in the brief, with references
to each page on which it is cited. The authorities shall be listed alphabetically
or numerically, as applicable.” In addition, Appellate Rule 46(A)(4) requires an
appellant to provide a statement of issues, which “shall concisely and
particularly describe each issue presented for review.” Appellate Rule 46(A)(5)
provides that an appellant’s brief shall include a statement of the case, which
“shall briefly describe the nature of the case, the course of the proceedings
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relevant to the issues presented for review and the disposition of these issues by
the trial court . . . .”
[11] Next, Appellate Rule 46(A)(6) requires an appellant to state the “facts relevant
to the issues presented for review,” “in narrative form.” Finally, Appellate
Rule 46(A)(8) mandates the inclusion of an argument section, subject to the
following relevant requirements:
(a) The argument must contain the contentions of the appellant
on the issues presented, supported by cogent reasoning. Each
contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal
relied on, in accordance with Rule 22.
(b) The argument must include for each issue a concise statement
of the applicable standard of review; this statement may appear
in the discussion of each issue or under a separate heading placed
before the discussion of the issues. In addition, the argument
must include a brief statement of the procedural and substantive
facts necessary for consideration of the issues presented on
appeal, including a statement of how the issues relevant to the
appeal were raised and resolved by any Administrative Agency
or trial court.
[12] White’s appellant’s brief fails to comply with any of these requirements. The
brief’s table of authorities is a discussion of White’s health history and
interactions with Swanson, rather than a list of cases, statutes, and other
authorities. In fact, the brief does not contain any citations to statutes or cases.
[13] In addition, the brief’s statement of issues more closely resembles a statement of
facts, continuing to describe White’s health history and interactions with
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Swanson, without any citations to the record. Next, the brief’s statement of the
case does not provide any information about the trial court proceedings. White
instead discusses Swanson’s bankruptcy case and her request for relief from
M&S. Our discussion of the procedural history of this case, as set forth above,
is drawn entirely from the appellee’s brief.
[14] Next, the appellant brief’s statement of facts, which consists of four lines of text
with no citations to the record, contains nothing but inappropriate argument:
Richard Swanson did breach our agreement. He was negligent in
not allowing me to see the Eli Lilly Doctor to treat and test me
with the proper chemicals. He refused to contact the doctor after
I gave him the message from the doctor. Ultimately, the
sensitivities has caused irreparable damage that has affected the
immune system.
Appellant’s Br. p. 5.
[15] Finally, the argument section of White’s brief is inadequate, consisting of only
two sentences and lacking any reference to the standard of review or citations to
authority. The brief fails to make clear that this is an appeal from a grant of
summary judgment.
[16] White’s noncompliance with Appellate Rule 46 is so substantial and
fundamental that it has impeded our consideration of her malpractice claim.
The appellee’s brief provided the factual and procedural history that White’s
brief lacks, but M&S’s brief does not excuse her noncompliance. Addressing
White’s malpractice claim would require this Court to review the record and
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research the law on her behalf, which we will not do. She has waived appellate
review of her claim. See Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 730 (Ind.
Ct. App. 2009) (claim waived for failure to cite adequate authority; appellant
cited only two cases on child support claim, both addressing standard of review
rather than the merits).
2. Summary Judgment – Statute of Limitation
[17] Although White has waived review of her malpractice claim, we choose to
address the statute of limitation issue that M&S raised in its motion for
summary judgment. Orders for summary judgment are reviewed de novo and
require this Court to apply the same standard of review that the trial court uses.
AM Gen. LLC v. Armour, 46 N.E.3d 436, 439 (Ind. 2015). A party moving for
summary judgment must designate evidence showing that “there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Ind. Trial Rule 56(C). Upon this showing, the nonmoving
party then has the burden to designate evidence demonstrating that there is a
genuine issue of material fact. AM Gen., 46 N.E.3d at 439. We view the
designated evidence in the light most favorable to the nonmoving party. Neff v.
Wal-Mart Stores E., LP, 113 N.E.3d 666, 670 (Ind. Ct. App. 2018), trans. denied.
[18] A lawsuit for an “injury to person or character,” including legal malpractice,
must be commenced within two years after the cause of action accrues. Ind.
Code § 34-11-2-4 (2013); see also Estate of Spry v. Batey, 804 N.E.2d 250, 252
(Ind. Ct. App. 2004), trans. denied. The cause of action of a tort claim accrues
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and the statute of limitation begins to run when the plaintiff knew or, in the
exercise of ordinary diligence, could have discovered that an injury had been
sustained as a result of the tortious act of another. Keep v. Noble Cty. Dep’t of
Pub. Welfare, 696 N.E.2d 422, 425 (Ind. Ct. App. 1998), trans. denied.
[19] White, through M&S attorney Swanson, settled her worker’s compensation
cases in 1999. At some point, White’s negative health effects from her exposure
to chemicals failed to resolve, or they became more severe, and she determined
Swanson should have sent her to a different doctor for consultation or
treatment. The record establishes she believed Swanson had tortiously caused
her harm at least as early as 2011, when she filed a disciplinary complaint
against him. Despite believing in 2011 that Swanson and his firm had harmed
her, White failed to file suit against M&S for approximately seven years, well
beyond the two-year statute of limitation.
[20] White argues that the statute of limitation did not expire until April 30, 2019,
but she cites to no evidence or authority in support of that argument. We
conclude White’s malpractice claim against M&S is barred by the statute of
limitation, and the trial court did not err in granting M&S’s motion for
summary judgment. See Dickes v. Felger, 981 N.E.2d 559, 563 (Ind. Ct. App.
2012) (legal malpractice claim barred by statute of limitation; clients discovered
attorneys’ alleged neglect in 2006 but waited almost three years to file suit).
Conclusion
[21] For the reasons stated above, we affirm the judgment of the trial court.
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[22] Affirmed.
Najam, J., and Tavitas, J., concur.
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