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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

ADVERTISEMENT