The Indiana Court of Appeals has reversed the dismissal of a woman’s malpractice complaint against her attorney, finding that the trial court’s Rule 12(b)(6) Order was improper.
Elaine Chenore hired Attorney Robert Plantz in July, 2005 to pursue a claim for money damages against William Knight. Chenore was awarded approximately $11,000 in January, 2006. In December, 2006, Knight filed a Chapter 13 Bankruptcy Petition. Plantz was notified, and collection proceedings were stayed. Although Plantz informed Chenore of the bankruptcy petition, she did not receive notice directly from the Bankruptcy Court. Plantz told her to “wait until notified by the Bankruptcy Court” and that he was going to appear for her there.
In July, 2012 Chenore learned that Knight’s bankruptcy had been discharged and that he had paid 100% of the claims filed, but paid her nothing, because no Notice of Claim had been filed on her behalf. Chenore then sued Plantz, who moved to dismiss under Rule 12(B)(6), claiming the two-year statute of limitations for attorney malpractice had expired. Chenore replied that the statute of limitations had been equitably tolled, because Plantz never told her that he did not appear for her in the Bankruptcy Court. The trial court granted Plantz’s motion.
Chenore appealed to the Indiana Court of Appeals, arguing that the trial court had improperly dismissed her claim. In Indiana, the two-year statute of limitations period begins to run when a plaintiff discovers, or in the exercise of ordinary diligence, could have discovered the tortious conduct.
The Court of Appeals reversed, ruling that Chenore was not given an opportunity to amend her complaint, and that Plantz’s representations equitably tolled the statute of limitations. The Court further found that Chenore did not discover her harm until she became aware of Knight’s bankruptcy discharge in July, 2012, which was less than two years before she filed her complaint. To the extent that Plantz had argued that Chenore should have discovered her harm earlier, the Appeals Court found that this presented a factual dispute which was not apparent on the face of Chenore’s complaint, and she should have been permitted to amend. The case is Elaine Chenore v. Robert Plantz, 45A03-1509-CC-1504.
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