Steven E. Dotlich, Appellant-Defendant,
Tucker Hester, LLC, Appellee-Plaintiff
from the Hamilton Superior Court. The Honorable Steven R.
Nation, Judge. Trial Court Cause No. 29D01-1112-CC-12997.
FOR APPELLANT: Matthew A. Griffith, Griffith Law Group, LLC,
FOR APPELLEE: Bradley J. Buchheit, Tucker Hester Baker &
Krebs, LLC, Indianapolis, Indiana.
Judge. Riley, J., and Altice, J., concur.
Steven E. Dotlich appeals the trial court's entry of
summary judgment in favor of William Tucker with respect to
Dotlich's malpractice claim against Tucker. Dotlich
raises five issues which we consolidate and restate as
whether the court erred in entering summary judgment in favor
of Tucker. We affirm.
and Procedural History
Dotlich first met with Tucker, an attorney with Tucker
Hester, LLC (the " firm" ) on January 24 or 25,
2011. At the meeting, Dotlich explained that most of his
debts were secured by crane equipment, vehicles, or other
assets, and that he was mostly concerned about saving his
family home and his 12.5% limited partnership interest his
father had given him in Speedway Industrial Park, L.P.
Dotlich met again with Tucker on February 3, 2011, at which
time Dotlich signed an engagement letter, and Tucker filed a
voluntary petition for bankruptcy under Chapter 7 of the
Bankruptcy Code on behalf of Dotlich on the same day. Tucker
filed " Schedule B -- Personal Property" with the
bankruptcy court on February 17, 2011, which included an
interest of 12.5% in " Speedway Industrial Park,
Inc."  Appellant's Appendix at
149. Tucker filed a motion to withdraw his appearance from
Dotlich's bankruptcy case on August 24, 2011, and two
days later the court granted the motion.
On December 23, 2011, the firm filed a Complaint on Account
in the Hamilton Superior Court against Dotlich alleging that
he owed the firm $10,658.73. On February 23, 2012, Dotlich by
new counsel filed an answer. On April 2, 2012, Dotlich's
new counsel also entered an appearance for him in his
bankruptcy case. In the Hamilton Superior Court, Dotlich
filed a Motion for Leave to Amend Answer to Complaint and a
Motion to Join Person as Party on July 27, 2012, and the
court granted the motions, including that William Tucker was
named as a counter-defendant on August 1, 2012,. Dotlich
filed an Amended Answer and Counterclaims on August 28, 2012,
1. There was an attorney-client relationship between William
Tucker and his law firm (" the Firm," ) as
attorneys, and Steven E. Dotlich, as client.
2. As a result of the attorney-client relationship, Tucker
and the Firm, who held themselves out to the public as
possessing greater than ordinary knowledge and skill in the
field of bankruptcy law, had a duty to represent Mr. Dotlich
with the reasonable care, skill, and diligence ordinarily
possessed and exercised by attorneys specializing in the
field of bankruptcy law, under similar circumstances.
3. Tucker and the Firm's conduct in filing bankruptcy for
Mr. Dotlich, was a breach of their duty to exercise
reasonable care, skill, and diligence on Mr. Dotlich's
4. As a result of said negligence in filing bankruptcy on
behalf of Mr. Dotlich, Mr. Dotlich sustained injury and loss.
Id. at 127-128. The bankruptcy court's docket
shows that a discharge of debtor was entered on March 4,
2013, and that the bankruptcy case was closed on April 8,
On June 19, 2014, Tucker filed a motion for summary judgment
together with a designation of evidence. He contended that
Dotlich was judicially estopped from pursuing his
counterclaim, that Dotlich failed to amend his bankruptcy
schedules to reflect his malpractice claim and accordingly
represented to the bankruptcy court that he had no such
claim, and that Dotlich would gain an unfair advantage if not
estopped as the bankruptcy trustee relied on his
misrepresentations and determined
that there were fewer available assets for distribution to
Dotlich filed a response together with designated evidence.
He contended that Tucker's motion was premised on the
false conclusion that the malpractice claim is an asset of
the bankruptcy estate, and that Tucker made a number of
post-petition errors, including improperly listing assets as
exempt and failing to accurately describe assets and their
true values. He noted that Chapter 7 differs from bankruptcy
under Chapters 11 and 13, and asserted that the filing of a
Chapter 7 bankruptcy petition creates a bankruptcy estate
encompassing all interests of the debtor in property "
as of the commencement of the case" and that his
malpractice claim arose after the filing of the petition.
Id. at 109.
In his reply, Tucker argued that only the bankruptcy trustee
could pursue the claims, and all of the elements of a claim
for legal malpractice were present at the time the bankruptcy
petition was filed. He also argued that, even if the
malpractice claim did not accrue under Indiana law " as
of" the filing date, the claim has sufficient roots in
Dotlich's pre-bankruptcy activities to warrant inclusion
in his bankruptcy estate. Id. at 913.
On December 15, 2014, the court held a hearing, and on
February 9, 2015, entered summary judgment in favor of Tucker
and against Dotlich on Dotlich's counterclaim. The court
found that Dotlich received a discharge in bankruptcy more
than seven months after he moved for leave to file his
counterclaim in this case, he did not amend his bankruptcy
schedules or notify the trustee of the claim, and that the
counterclaim was property of the bankruptcy estate and only
the bankruptcy trustee could pursue it. The court noted that
Section 541(a)(1) of the Bankruptcy Code defines "
property of the estate" to include " all legal or
equitable interests of the debtor in property as of the
commencement of the case," and that property of the
estate is broadly construed. Id. at 14 (citing 11
U.S.C. § 541(a)(1)). The court found that causes of
action that accrue as a result of the filing of a bankruptcy
petition are property of the estate. Id. at 15
(citing In re Strada Design Assocs., Inc., 326 B.R.
229, 235 (Bankr. S.D.N.Y. 2005); In re Alvarez, 224
F.3d 1273, 1278 (11th Cir. 2000), cert. denied, 531
U.S. 1146, 121 S.Ct. 1083, 148 L.Ed.2d 959; In re
Dow, 132 B.R. 853, 860 (Bankr. S.D. Ohio 1991)). The
court further stated that this conclusion follows from a
comparison between 11 U.S.C. § § 541(a)(1) and
(a)(7), where Section 541(a)(1) deals with the debtor's