Johnson v. Cornett
| Decision Date | 18 February 1985 |
| Docket Number | No. 1-384A72,1-384A72 |
| Citation | 474 N.E.2d 518 |
| Court | Indiana Appellate Court |
| Parties | Phillips B. JOHNSON and/or Johnson & Eaton, Attorneys At Law, Appellants (Defendants Below), v. Eugene P. CORNETT, Appellee (Plaintiff Below). |
David C. Campbell, Robert D. MacGill, Bingham, Summers, Welsh & Spilman, Indianapolis, Phillips B. Johnson, Versailles, for appellants.
Michael Thomasson, Columbus, for appellee.
Appellants Phillip B. Johnson and/or Johnson and Eaton (Johnson and Eaton), Attorneys at law, appeal a decision of the Ripley Circuit Court in favor of appellee Eugene P. Cornett (Cornett).
We affirm.
Cornett filed a complaint on January 25, 1982, alleging that Johnson and Eaton were guilty of legal malpractice while representing him in a dissolution decree and property settlement dispute. Johnson and Eaton filed a motion to dismiss which was granted on the basis that the alleged cause of action occurred more than two years before it was brought and was therefore barred by the applicable statute of limitations. Cornett then filed a motion to vacate judgment pursuant to Rule 60(B) of the Indiana Rules of Trial Procedure which was granted on January 24, 1983.
On appeal, we are concerned only with the substantive statute of limitations issue. The record shows that the trial court announced its dissolution order on December 31, 1979. However, the order was not signed until January 24, 1980. The question we must answer is which date started the running of the statute of limitations.
We agree with Cornett and maintain that the applicable statute of limitations did not begin to run until January 24, 1980, the date the dissolution decree was signed. According to Shideler v. Dwyer, (1981) 275 Ind. 270, 417 N.E.2d 281, the statute begins to run when the breaching act meets the damage. In Shideler, the accusation was that the will was improperly drafted but the statute of limitations did not run in an action for malpractice against the drafting attorney until all attempts at remedial action after the death of the testator had been exhausted. The court in that case held that the statute began to run at the moment of the testator's death since up until that time the will was ambulatory. At the point of the testator's death, the damage was done.
In this case, appellants maintain that the damage occurred when the trial court announced its intentions. However, the decision at that point could still be altered. In other words, the decision was not final. A trial court has broad latitude and up to the time a decision is final may re-think its position. See, James v. Board of Commissioners of Hendricks County, (1979) 182 Ind.App. 697, 396 N.E.2d 429. Thus, the court's initial pronouncement was completely ambulatory until January 24, 1980, the time it issued its final order.
Trial Rule 58 concerning entry of a judgment and Trial Rule 77 concerning Book and Records Kept by the Clerk, support this conclusion. These rules of procedure make it clear that a certain course of action must be adhered to before any court action has finality. 1
In conclusion, we hold that the action for alleged mishandling of Cornett's divorce trial did not accrue until the entry of the final decree on ...
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