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DiBenedetto v. Devereux

Court of Appeals of Indiana

June 23, 2017

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

         Appeal from the Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-1310-CT-37987

          Attorney for Appellant Jon R. Pactor Indianapolis, Indiana.

          Attorney for Appellee Timothy F. Devereux Indianapolis, Indiana.

          Altice, Judge.

         Case Summary

         [¶1] This is another legal malpractice action arising from the theft and deceit committed by former attorney William F. Conour (Conour) that led to the downfall of Conour Law Firm (the Firm) and victimized many of the Firm's clients.[1] Rene DiBenedetto is one such client. In this case, DiBenedetto filed a legal malpractice complaint against Timothy Devereux, an attorney who once practiced law with the Firm. DiBenedetto maintains that Devereux committed legal malpractice when he failed to accurately and honestly advise her regarding distribution of her settlement funds. Devereux filed a motion for summary judgment[2] challenging the merits of DiBenedetto's legal malpractice claim. After a hearing, the trial court granted Devereux's summary judgment motion. DiBenedetto now appeals, arguing that genuine issues of material fact preclude entry of summary judgment in favor of Devereux.

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] DiBenedetto was severely injured in a head-on collision on April 21, 2010. On April 26, 2010, DiBenedetto entered into a contingent-fee contract with the Firm. DiBenedetto had a personal connection to Conour and it was Conour who agreed to handle her case. Devereux was an associate attorney[3] with the Firm when DiBenedetto entered into the contract, but he was not assigned to assist with her case, nor did he perform any work related thereto.

         [¶4] In July 2010, DiBenedetto received a letter informing her that the Firm was being transitioned to the new law firm of Conour Devereux Hammond. This letter, which is signed by Conour, Devereux, and Jeffrey Hammond, included the following statements:

We are pleased to introduce you to the new law firm of Conour Devereux Hammond which is taking over the cases and business of the Conour Law Firm, LLC. Of course, you already know all of us because we have been working with you on your case since its beginning.

Appellant's Appendix, Vol. 2 at 23.[4] In closing, the letter stated, "We look forward to continuing to work with you to the conclusion of your claim. If you have any questions or wish to discuss this matter, please call any one of us." Id. Despite the name change, Devereux maintains that he did not have an ownership interest in the Firm, was never a signatory on the Firm's bank accounts, and was not provided access to the Firm's financial records.

         [¶5] Ultimately, DiBenedetto's accident claims were settled without the filing of a lawsuit.[5] The first settlement for $50, 000 was paid by the insurance company for the tortfeasor. DiBenedetto signed a Release in Full of All Claims and Rights on January 13, 2011, but reserved the right to maintain a claim for underinsured motorist (UIM) coverage against her own insurance company.

         [¶6] During the summer of 2011, DiBenedetto, along with her father, stopped by the Firm unannounced to inquire about the disbursement of the January settlement. Conour was not in the office, but Devereux, being the only attorney present that day, agreed to speak with her. After consulting with the Firm's paralegal and reviewing the Firm's case-management software, Devereux met with DiBenedetto regarding the status of her case. Specifically, he acknowledged the January settlement and noted that there were medical liens[6] and a pending UIM claim. Devereux explained that "typically . . . with cases like this" the pending UIM claim "had to be settled" before the medical liens could be negotiated and that thereafter, the remaining settlement funds, if any, would be distributed to her. Id. at 101. He further advised DiBenedetto to follow up with Conour concerning distribution of the settlement already received.

         [¶7] DiBenedetto's UIM claim was settled in September 2011, and the settlement check was dated October 11, 2011. The check was endorsed by someone other than DiBenedetto[7] and deposited into the Firm's account on October 12, 2011. It was not until six weeks later, on November 29, 2011, that DiBenedetto was presented with and signed a release of all claims to finalize the settlement of the UIM claim. It is undisputed that Devereux did not participate or assist in the settlement of this claim or that he had any knowledge thereof.

         [¶8] In December 2011, Devereux became concerned about Conour's business practices.[8] As a result, he resigned from the Firm on December 22, 2011. DiBenedetto never received any funds from the settlement of either of her claims. It was later determined that Conour had misappropriated DiBenedetto's settlement funds received from both the tortfeasor settlement and the UIM settlement.

         [¶9] On December 27, 2011, Devereux contacted the Indiana Supreme Court Disciplinary Commission to express his concerns about Conour. In January 2012, the Federal Bureau of Investigation (FBI) contacted Devereux concerning an investigation regarding Conour's failure to fund trusts that he described to clients as structured annuities. Devereux was not made aware of any other potential wrongdoing on behalf of Conour. Conour was criminally charged in federal court on April 27, 2012, and later pled guilty to one count of wire fraud.

         [¶10] On October 11, 2013, DiBenedetto filed a complaint against Devereux for legal malpractice, alleging that Devereux was negligent, breached his fiduciary duties, and breached his contractual obligations by not providing her with accurate information when she inquired about disbursement of her settlement funds during the summer of 2011. On March 23, 2016, Devereux filed the instant motion for summary judgment, arguing that, as a matter of law he did not breach any duty he owed to DiBenedetto. The trial court held a hearing on July 11, 2016. On September 2, 2016, the trial court entered an order granting summary judgment in favor of Devereux. The trial court made no findings of fact and did not set forth the basis for its decision. DiBenedetto now appeals. Additional facts will be provided as necessary.

         Discussion & Decision

         [¶11] DiBenedetto argues that the trial court erred in granting summary judgment in favor of Devereux. We review an order granting summary judgment de novo. Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind.Ct.App. 2015). Summary judgment is appropriate if, after reviewing the designated evidence, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). When the trial court has granted summary judgment, the nonmoving party has the burden on appeal of persuading us that the grant of summary judgment was in error. Adams, 48 N.E.3d at 9.

         [¶12] "Under Indiana Law, the elements of legal malpractice are: (1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff." Van Kirk v. Miller, 869 N.E.2d 534, 541 (Ind.Ct.App. 2007) (quoting Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind.Ct.App. 2006)), trans. denied. "A defendant is entitled to judgment as a matter of ...


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