Attorney didn’t commit conversion, malpractice

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.