ILNews

Attorney didn't commit conversion, malpractice

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals today affirmed the dismissal of conversion and legal malpractice claims filed in LaPorte County against an Illinois attorney following the settlement of a wrongful death claim in Illinois.

In Jerry Storey v. Theodore S. Leonas Jr. and Leonas & Associates, Ltd., No. 46A03-0806-CV-300, Jerry Storey brought the legal malpractice and conversion claims against attorney Theodore Leonas, alleging he breached his fiduciary duty to Storey. Storey's adult daughter, an Illinois resident, had been killed in a car accident in Michigan City, Ind. Storey's ex-wife, Delia Blair, hired Leonas to file a wrongful death action in Illinois, which doesn't have statutory cap on wrongful death damages.

Before determining whether Indiana or Illinois law applied, Blair settled and received $650,000. She told Leonas to distribute $144,000 to Storey, but Storey declined and attached metaphorical strings to the acceptance of the funds. As a result of the denial of settlement money, Blair told Leonas not to offer Storey any money.

Storey filed his lawsuit in Indiana in 2002, but waited until only a few weeks before the trial in 2005 to file a motion to determine applicable state law. The trial court denied the motion, finding he didn't give reasonable notice to the parties. The trial court also granted Leonas' motion in limine to bar Storey from presenting evidence that Blair's wrongful death action in Illinois could have resulted in more money than she would have received in Indiana and his motion to bar Storey's legal experts from testifying.

The Court of Appeals affirmed the finding Storey failed to provide "reasonable notice" of his intent to request the application of Illinois law. He waited more than 2 ½ years before raising the law issue, wrote Chief Judge John Baker. When he did raise it, the complaint only mentioned the underlying wrongful death action was filed in Illinois and that Leonas was questioned about Illinois law in his deposition, which is insufficient for his motion to succeed. However, the appellate court found the trial court erred by preventing Storey from introducing evidence of the wrongful death statutory scheme in Illinois because "to pretend that this settlement occurred with everyone knowing with certainty that Indiana law would apply is to ignore the facts, which we cannot countenance and which the choice of law decision does not require," he wrote.

The trial court didn't abuse its discretion in barring Storey's experts from testifying because he waited until discovery was just closing to supply Leonas with a witness list that failed to provide the experts' reports or summaries of their opinions. Because Storey's experts were barred, he couldn't meet his burden of proving legal malpractice, and the claim was properly dismissed, wrote the chief judge.

The trial court also properly dismissed his conversion claim because Leonas was acting on behalf of Blair when he was directed to deny any further disbursement after Storey refused the money. Even if Storey was owed the money from the settlement, at most, Blair's refusal to give him money would be wrongful withholding of funds and failure to pay a debt, which isn't conversion as a matter of law, wrote Chief Judge Baker.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

ADVERTISEMENT