Whitehouse v. Quinn

• Decision Date: 27 December 1982
• Docket Number: No. 2-682A189,2-682A189
• Citation: 443 N.E.2d 332
• Parties: David WHITEHOUSE, Appellant (Plaintiff below), v. Thomas M. QUINN, Jr. and Clark & Clark, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 332

443 N.E.2d 332

David WHITEHOUSE, Appellant (Plaintiff below), v. Thomas M. QUINN, Jr. and Clark & Clark, Appellees (Defendants below).

No. 2-682A189.

Court of Appeals of Indiana Second District.

Dec. 27, 1982.

George Clyde Gray, George Clyde Gray, P.C., Indianapolis, for appellant.

John P. Price, Robert J. Shula, Robert D. MacGill, Bingham Summers Welsh & Spilman, Indianapolis, for appellees.

SHIELDS, Judge.

Appellant David Whitehouse (Whitehouse) is appealing an adverse summary judgment rendered in favor of Thomas M. Quinn, Jr. and Clark and Clark (Quinn) on Whitehouse's two-count complaint for attorney negligence and breach of an attorney-client contract. Whitehouse contends the judgment is erroneous because:

1) The contract claim was governed by the twenty-year statute of limitation applicable to contracts in writing other than those for the payment of money,

and, in any event

2) The statute(s) of limitation applicable to both claims was (were) tolled since Quinn's failure to advise Whitehouse of the legal effect of a release constituted fraudulent concealment of his causes of action against Quinn.

Additionally, Quinn raises an issue of appellate procedure by claiming Whitehouse waived all his issues on appeal by not setting forth verbatim in his appellant's brief those errors assigned in his motion to correct error which correspond to the particular argument advanced in the brief.

We affirm in part and reverse in part.

FACTS

In early August 1977 Whitehouse sustained personal injuries in a motor vehicle collision. On August 18, 1977 he entered into a written contingent fee contract with attorney Quinn in which Quinn agreed "to represent and prosecute [Whitehouse's personal injury] claim to final settlement or judgment" "against several defendants including Russell A. Toothman, Michael Vaccarello, Kathie K. Christy and others." (Our emphasis). In July 1978 Quinn secured $50,000 for Whitehouse from Toothman in exchange for a covenant not to sue. On November 21, 1978, in exchange for $90,000 paid by Vaccarello, Whitehouse executed a "Release of All Claims." The release document stated, in part, Whitehouse

"release[d] and forever discharge[d] ... Vaccarello and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, representatives and assigns, from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from any act or occurrence up to the present time and particularly on account of all personal injury, disability, property damage, loss or damages of any kind already sustained or that [he would] hereafter sustain in consequence of [the] accident."

Immediately beneath the date and above the signature line the release stated in bold print: "CAUTION--READ BEFORE SIGNING."

On August 13, 1981, Whitehouse filed the present action against Quinn. Count I alleged Quinn was "negligent in failing to secure all of the remedies available" to Whitehouse, specifically failing to bring suit against the State of Indiana and the contractor who performed repairs on the portion of the highway on which the motor vehicle collision occurred. Count II alleged Quinn's failure to bring suit against the state and the contractor constituted a breach of the contingent fee contract. In his answer and subsequent motion for summary judgment Quinn maintained both counts of the complaint were governed by the two-year statute of limitation in clause 1 of I.C. 34-1-2-2 (Burns Code Ed.1973) and thus were barred as Whitehouse filed his complaint over two years after he executed the complete release with Vaccarello. ¹

In response to Whitehouse's request for admissions, Quinn conceded the existence and terms of the written contingent fee contract and admitted he "investigated and Additionally, Whitehouse filed an affidavit in opposition to summary judgment in which he stated he was advised (he did not say by whom) to sign the November 21, 1978 release and he "was never advised by [Quinn] that by signing the release ... [he] was releasing all tort-feasors, including the State of Indiana and the highway contractor from liability." The affidavit also asserted Whitehouse "did not learn of the release of the State of Indiana and the highway contractor until [he] talked with an attorney's office [sic] in July, 1980."

                evaluated and therefore 'pursued' " Whitehouse's claims against the State and the contractor but "such actions were not brought."   In response to the request that Quinn admit he "did not advise ... Whitehouse ... by signing [the] release ... Whitehouse was barred from pursuing any claims against the State ... or the ... contractor ...."  Quinn replied the release "speaks for itself," specifically citing the portion of the release which reads:  "I ... release and forever discharge Michael Vaccarello and any other person, firm or corporation charged or chargeable with responsibility or liability" for the accident. 2
                

After a hearing at which the parties orally presented their respective positions, but where evidence was not taken, the trial judge found the complaint to be governed by the two-year limitation period of I.C. 34-1-2-2 which period began to run on November 21, 1978, the day the release was executed. Consequently, the trial court entered summary judgment for Quinn "on all counts" of Whitehouse's complaint.

Finally we note that in the trial court and on appeal the parties have agreed the state and the contractor were joint tort-feasors with Vaccarello and thus the November 21 release constituted a relinquishment of claims against the state and the contractor as well as Vaccarello.

DECISION

At the outset we address Quinn's contention Whitehouse waived all his issues on appeal in view of Ind. Rules of Procedure, Appellate Rule 8.3(A)(7) "by failing to address any particular portion of his argument to any specified part of his Motion to Correct Errors." In other words, Quinn argues the failure to set forth verbatim errors assigned in the motion to correct error at an appropriate point in the argument section of an appellant's brief is fatal. ³

In essence, the argument section of Whitehouse's brief is comprised of two parts, each of which is headed by a declarative statement. Each of these statements reasonably reflects one of the issues Whitehouse seeks to raise on appeal since each statement represents a collation and restatement of several of the issues Whitehouse raised in his motion to correct error, and each statement is followed by pertinent argument. Whitehouse's brief is in substantial compliance with A.R. 8.3(A)(7), and thus, Whitehouse has not waived any of the issues he has otherwise properly raised on appeal. State Dept. of Admin. v. Sightes, (1981) Ind.App., 416 N.E.2d 445 (failure to reproduce verbatim in brief errors assigned in the motion to correct error did not constitute waiver where beginning of argument sections stated a concise summary of several assigned errors).

It is well settled summary judgment is proper only when a genuine issue of material fact does not exist and the moving party is entitled to judgment as a matter of law. Criss v. Bitzegaio, (1981) Ind., 420 N.E.2d 1221 (citing Ind.Rules of Procedure, Trial Rule 56(E)); Shideler v. Dwyer, (1981) Ind., 417 N.E.2d 281; Bassett v. Glock, (1977) 174 Ind.App. 439, 368 N.E.2d 18; Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d 785. Of course, in reviewing a grant of summary judgment the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, are liberally construed in favor of the opponent of summary judgment and any doubt as to the existence of a genuine issue of material fact is resolved against the proponent of the motion. Teeling v. Indiana Nat'l. Bank, (1982) Ind.App., 436 N.E.2d 855. Moreover, in summary judgment proceedings, as at trial, the burden of establishing the existence of material affirmative defenses is on the defendant. Criss, 420 N.E.2d at 1224-25 (where the court concluded "defendants presented no evidence in support of their allegations" the plaintiff's action to obtain an undivided one-third interest in land by virtue of a resulting trust was barred by the statute of limitations, the doctrine of laches, or the statute of frauds).

I.

Before proceeding to the merits of the first issue, we emphasize the narrowness of the issue as presented. The motion for summary judgment did not attack the legitimacy of a breach of contract action. ⁴ Rather, it assumed an action against an attorney based upon that attorney's professional services was exclusively an action for legal malpractice based upon negligence.

Thus, Quinn's motion and its supporting material were only directed to the question whether there were any genuine issues of material fact that both counts of Whitehouse's action for legal malpractice (negligence) were barred, as a matter of law, by the applicable statute of limitation since they had accrued two years before Whitehouse filed it. Also, in its detailed findings the trial court made no mention of the ultimate construction of the contract nor, indeed, of a contract action. Rather, the trial court found Whitehouse's claim was "for legal malpractice" and was "barred as a matter of law" by the "two-year statute of limitations given by Ind.Code 34-1-2-2." Accordingly, our consideration necessarily assumes Count II involves a valid, enforceable contract to prosecute persons other than those specifically named in the contract.

Whitehouse contends count 2 of his complaint is founded on an express written contract, and thus is governed by the twenty-year statute of limitation found at I.C. 34-1-2-2(6) (Burns Code Ed., Supp.1982) as opposed to the two-year personal property statute of limitation provided in the first clause of the same statute. ⁵ In support of his argument, Whitehouse cites the vintage case of Foulks v....