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Devereux v. DiBenedetto

Court of Appeals of Indiana

November 6, 2015

Timothy Devereux, Appellant-Defendant,
v.
Rene DiBenedetto, Appellee-Plaintiff

          Appeal from the Marion Superior Court. The Honorable Timothy Oakes, Judge; Trial Court Cause No. 49D13-1310-CT-37987.

         ATTORNEYS FOR APPELLANT: Timothy F. Devereux, Dustin F. Fregiato, Ladendorf Law, Indianapolis, Indiana.

         ATTORNEY FOR APPELLEE: Jon R. Pactor, Indianapolis, Indiana.

          OPINION

Page 843

          May, Judge.

         [¶1] Timothy Devereux appeals the denial of his motion for summary judgment. He argues Rene DiBenedetto's claim against him was barred by the limitations period set forth in her contract with Conour Law Firm, LLC (" the Firm" ). DiBenedetto argues Devereux is not a party to the contract she made with the Firm or, in

Page 844

the alternative, the contract's language shortening the limitations period was the product of unfair dealing, violated Rule of Professional Responsibility 1.8(h), and violates public policy. DiBenedetto cross-appeals, asserting the trial court erred when it did not rule on her motions to strike certain evidence Devereux designated. We affirm.

         Facts and Procedural History

         [¶2] On April 25, 2010, DiBenedetto entered into a contract with the Firm to pursue damages stemming from an automobile accident. On July 1, 2010, DiBenedetto received a letter advising her that her case would be taken over by a new firm named Conour Devereux Hammond. She was advised by Conour that she could contact any of the attorneys on staff at Conour Devereux Hammond to discuss her case.

         [¶3] In January 2011, the insurance company for the other driver involved in the automobile accident settled the suit and paid policy limits of $50,000.00. On January 13, 2011, DiBenedetto signed a Release in Full of all Claims and Rights, but reserved her right to maintain a claim for underinsurance against her own insurance company. DiBenedetto did not receive any money from the January 2011 settlement. At some point in the summer of 2011, DiBenedetto met with Devereux to inquire about the status of her case.

         [¶4] In September 2011, DiBenedetto's underinsurance claim against her insurance company was settled. The settlement check was dated October 11, 2011, and DiBenedetto signed the Release in Full of all Claims and Rights on November 29, 2011. DiBenedetto did not receive proceeds from the September 2011 settlement. Devereux left Conour Devereux Hammond on December 22, 2011.

         [¶5] On April 27, 2012, Conour was indicted on multiple counts of wire fraud involving the misappropriation of client funds. The Indiana media covered Conour's indictment, as well as his subsequent resignation from the Indiana Bar. Conour pled guilty and was incarcerated.

         [¶6] DiBenedetto filed a complaint against Devereux on October 11, 2013. She alleged Devereux breached a " duty to make sure that the law firm would make reasonable efforts to ensure that the firm had in effect measures giving reasonable assurance that all lawyers and non-lawyers in the firm conform to the Rules of Professional Conduct." (App. at 8.) DiBenedetto contended Devereux " is liable for Rene DiBenedetto's ...


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