Elaine CHENORE, Appellant, v. Robert PLANTZ, Appellee.
No. 45A03-1509-CC-1504
Court of Appeals of Indiana.
June 28, 2016.
BAILEY, Judge.
[21] Here, Dr. Leo testified at length about certain tactics he considered “too effective” at times. (Tr. at 1048.) In the offer of proof, Jimerson‘s counsel sought to describe particular exchanges during Jimerson‘s interrogation and elicit Dr. Leo‘s opinion as to whether such “fit the category.” (Tr. at 1146.) The trial court concluded that it was within the province of the jury—as opposed to Dr. Leo—to apply the concepts he had discussed. The trial court then excluded Jimerson‘s proffered categorization and application evidence. We are not persuaded that this exclusion was an abuse of discretion.
[22] The instant circumstances do not mirror those of Miller. That case involved a complete exclusion of expert testimony and a defendant of particular vulnerability, where the appellate court noted that the interrogation of a mentally retarded person is outside the common knowledge and experience of the jury. Miller, 770 N.E.2d at 774. Here, there was no need for an expert to point out the techniques allegedly employed to secure Jimerson‘s confession.
[23] Together with extensive background testimony from Dr. Leo, the jury was provided with Jimerson‘s statement in audio, video, and written form. Moreover, Jimerson testified and explained his subjective view, that is, he had said certain things he later recanted because he was “very scared.” (Tr. at 1163.) He testified that he had been led into scenarios, told that his DNA was all over Spicer‘s body and house, and encouraged to demonstrate that he was not a monster. As such, the jury had been given adequate information to apply its common knowledge and experience. Where a jury is able to apply concepts without further assistance, highlighting individual exchanges or vouching for the truth or falsity of particular evidence is invasive.
Conclusion
[24] Jimerson has not demonstrated that the trial court abused its discretion in the restriction of expert testimony.
[25] Affirmed.
BRADFORD, J., and ALTICE, J., concur.
William J. Obermeyer, Obermeyer Law, Valparaiso, IN, Attorney for Appellant.
Case Summary
BAILEY, Judge.
[1] Elaine Chenore (“Chenore“) appeals, following the deemed denial of a motion to correct error challenging the dismissal of her attorney malpractice action against Robert Plantz (“Plantz“). She presents the sole issue of whether the trial court improperly dismissed the claim pursuant to
Facts and Procedural History
[2] Chenore‘s complaint, filed May 27, 2014, indicates the following: At all relevant times, Plantz “presented [him]self as engaging in business as [Chenore]‘s legal representative as an attorney duly licensed to practice law in the State of Indiana.” (App. at 9.) In July of 2005, Chenore hired Plantz to pursue a claim for money damages against William D. Knight (“Knight“). A judgment in the amount of $10,930.00 was obtained in January of 2006. In December of 2006, Knight filed a Chapter 13 Bankruptcy petition. Plantz was notified and collection proceedings were stayed. Plantz informed Chenore of the bankruptcy petition; she did not receive notice directly from a bankruptcy court. Plantz told Chenore to “wait until notified by the Bankruptcy Court” and further told her that he “was going to appear at the Bankruptcy Court.” (App. at 10.) Over the next two years, Chenore made inquiries of Plantz, receiving “no positive response.” (App. at 10.) Knight paid 100% of the claims filed, but did not pay Chenore anything because no claim was filed on her behalf. Chenore became aware of Knight‘s bankruptcy discharge in July of 2012.
[3] Plantz filed a motion to dismiss pursuant to
[4] At the conclusion of the hearing, the trial court entered an order providing in pertinent part: “The Defendant‘s Motion to Dismiss is granted. The Plaintiff‘s claim is barred by the Statute of Limitations.” (App. at 8.) Chenore filed a motion to correct error, attaching an affidavit. The trial court conducted an additional hearing but did not rule on the motion to correct error. The motion was deemed denied. This appeal ensued.
Discussion and Decision
Standard of Review
[5] A
Analysis
[6] The statute of limitations for attorney malpractice is two years. Ickes v. Waters, 879 N.E.2d 1105, 1108 (Ind.Ct.App.2008). The two-year period begins to run when the plaintiff knows of, or in the exercise of ordinary diligence could have discovered, the tortious conduct. Id. Plantz moved to dismiss Chenore‘s complaint on statute of limitations grounds pursuant to
[T]he following defenses may be made by motion:
(6) Failure to state a claim upon which relief can be granted[.]
[7] A motion to dismiss for failure to state a claim on which relief may be granted may be an appropriate means of raising the statute of limitations. In re Estate of Carroll, 436 N.E.2d 864, 865 (Ind.Ct.App.1982). When the complaint shows on its face that the statute of limitations has run, the defendant may file a
[8] Chenore was not afforded the opportunity to amend her complaint. However, she asserts that the complaint, viewed most favorably to her, indicates that she may prevail on her claim notwithstanding a two-year statute of limitations. According to Chenore, Plantz‘s representations equitably tolled the statute of limitations and Chenore did not discover her harm until she became aware of Knight‘s bankruptcy discharge in July of 2012. This was less than two years before she filed her complaint.
[9] Chenore‘s complaint asserted facts in avoidance of the statute of limitation. To the extent that Plantz has argued that Chenore should have discovered her harm earlier, this presents a factual dispute not apparent on the face of Chenore‘s complaint. “A complaint is sufficient and should not be dismissed so long as it states any set of allegations, no matter how unartfully pleaded, upon which the plaintiff could be granted relief.” Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind.Ct.App. 2013).
[10] Accordingly, we agree with Chenore that her complaint was improperly dismissed pursuant to
[11] Reversed.
BRADFORD, J., and ALTICE, J., concur.