United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING ALERDING CASTOR'S MOTION FOR
PARTIAL SUMMARY JUDGMENT ON DEFENDANTS'
Patrick Hanlon United States District Judge
Castor Hewitt LLP sued Carole Wockner and Paul Fletcher
(collectively “Defendants”) in Marion County
Circuit Court alleging that Defendants failed to pay for
legal services provided. Defendants removed the case to
federal court and filed their Counterclaim against Alerding
Castor. Dkt. 14. Before the Court is Alerding Castor's
Motion for Partial Summary Judgment on Defendants'
Counterclaim. Dkt. . Because Defendants did not timely
respond, this Motion is ripe for review. See dkt.
160; dkt. 165; dkt. 169. For the reasons stated below, the
Motion is GRANTED.
Factual and Procedural History
Rule 56(a), the Court views the evidence “in the light
most favorable to the non-moving party and draw[s] all
reasonable inferences in that party's favor.”
Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009)
(citation omitted). Because Defendants did not timely respond
to Alerding Castor's motion for summary judgment, the
Court treats Alerding Castor's supported factual
assertions as uncontested. S.D. Ind. L.R. 56.1(b). See,
e.g., Smith v. Lamz, 321 F.3d 680, 683 (7th
Counterclaim against Alerding Castor alleges breach of
contract (Count I), legal malpractice (Count II), and breach
of fiduciary duty (Count III). Dkt. 14 (Countercl.). Alerding
Castor represented Defendants in a lawsuit against Mark Zupan
and Fidelity Brokerage Services LLC (“Fidelity”)
in the Lake County Superior Court (the “Forgery
Lawsuit”), to recover Fidelity investment accounts that
were signed over from Defendants to Zupan. Id. at 7,
24 (Countercl. ¶¶ 38, 106). The Counterclaim
alleges Alerding Castor failed to complete certain tasks and
duties during its legal representation of Defendants in the
Forgery Lawsuit. Id. at 29-31 (¶¶ 127-42).
relevant and undisputed material facts regarding the Forgery
Lawsuit are summarized as follows. In 1998, Scott Taylor
named Fletcher, one of the Defendants in this case, as the
sole beneficiary on three of his Fidelity investment
accounts. Id. at 2-3 (¶¶ 11, 15-16).
Taylor was diagnosed with terminal lymphoma, and on July 25,
2008, he moved to his parents' home, where he died on
September 23, 2008. Id. at 4 (¶ 22). Defendants
were advised after Taylor's death that a change of
beneficiary form was executed on August 2, 2008 (the
“Change of Beneficiary Form”), which changed the
beneficiary of Taylor's Fidelity investment accounts to
Zupan. Id. at 6 (¶ 33).
sued Zupan and Fidelity, alleging that Taylor's signature
on the Change of Beneficiary Form was forged after Zupan had
improperly obtained “information relating to
Taylor's financial affairs, including his retirement
accounts with Fidelity investments.” Id. at 7
(¶ 38); dkt. 130-1 at 9 (Michael Alerding Aff., Ex. A,
Compl. in Forgery Lawsuit, ¶ 12). As a result of the
“intentional tortious misconduct, ” Defendants
sought (1) an injunction against the distribution of any
funds in Taylor's Fidelity retirement accounts to Zupan,
(2) an award of damages in the amount of the Fidelity
retirement accounts, (3) the recovery of punitive damages,
and (4) attorney's fees. Dkt. 130-1 at 11-12 (Alerding
Aff., Ex. A, Compl. in Forgery Lawsuit at 3-4). Subsequently,
Fidelity was dismissed as a defendant. Id. at 14-15
(Ex. C, Order Dismissing Fidelity).
initiating the Forgery Lawsuit, Defendants' first
attorney-Alerding Castor was the fourth law firm to represent
Defendants in the Forgery Lawsuit-communicated his doubts to
Defendants about the accuracy of the allegations against
Zupan. Id. at 13 (Ex. B, Paarlberg May 12, 2009
Email). Fidelity's counsel informed Defendants'
attorney that Taylor telephoned a Fidelity representative and
told the representative to prepare the forms and name Zupan
as his beneficiary. Id.
second attorney deposed Fidelity's employee, Kim Rice,
who had spoken with Taylor about changing his beneficiary.
Dkt. 130-2 at 49 (Roach Aff., Trial Tr., Rice Dep. 43:6-9).
Rice testified that she called Taylor on August 1, 2008, and
Taylor asked her to change the beneficiary on all three of
his Fidelity accounts to Zupan. Id. (Roach Aff., Ex.
A, Rice Dep. 43:1-24). After the call, she prefilled the
Change of Beneficiary Form and mailed it by United Parcel
Service (“UPS”) for Taylor to execute with a
return envelope addressed to Fidelity's office.
Id. at 50, 52 (44:1-17; 46:14-17). Rice testified
that she received the Change of Beneficiary Form with
Taylor's signature for his Fidelity retirement accounts
and that she noted her dealing with Taylor in Fidelity's
record keeping system. Id. at 44-47 (38:22-41:24).
Fidelity's record keeping system corroborated Rice's
testimony. Id. at 45-50 (39:1-44:14).
second attorney also deposed Taylor's mother, Elsie
Taylor. Id. at 30 (Elsie Dep.). Taylor's mother
testified that Taylor received a package containing
paperwork, he completed the paperwork, and he gave the
package back to her for return delivery to Fidelity, which
she did. Id. at 32-37 (26:13- 31:5). Taylor's
mother testified that Taylor's signature was on the
Change of Beneficiary Form. Id. at 37 (31:1-3).
third attorney obtained records from UPS, which corroborated
Rice's testimony that Fidelity sent a prefilled Change of
Beneficiary Form to Taylor on August 1, 2008. Dkt. 130-1 at
46-48 (Alerding Aff., Ex. G, UPS Records).
document examiner reviewed handwriting exemplars by Taylor
and concluded that it is “extremely probable that the
signature on the questioned beneficiary change is
authentic.” Id. at 50 (Ex. H., Michael Meyer,
June 7, 2012 Email).
Alerding Castor began representing Defendants, discovery had
closed and Zupan's motion for summary judgment was
pending. Dkt. 14 at 15 (¶ 76). After the trial court
granted Zupan's motion for summary judgment, Alerding
Castor successfully appealed the decision and the case was
remanded the case to the trial court. Id.
(¶¶ 77-79). Both the trial court and appellate
court disallowed reopening discovery. Id. at 15-16
(¶ 80). The trial court also granted Zupan's motion
to convert the jury trial into a bench trial. Dkt. 130-1 at 5
(Alerding Aff. ¶ 26). On November 6, 2015, Alerding
Castor spoke with Defendants and expressed concern that there
was no evidence of forgery. Id. at 4 (¶ 23).
November 2015, Anthony Roach, an attorney from Alerding
Castor, began assisting with the Forgery Lawsuit. Dkt. 130-2
at 1 (Roach Aff. ¶ 2). On May 25, 2016, Michael Alerding
informed the Court and Defendants that he, Mr. Alerding, was
undergoing a series of medical procedures that would prohibit
him from traveling and conducting the trial. Dkt. 130-1 at 6
(Alerding Aff. ¶ 33). The ...