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Friday, September 23, 2011

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Corrine R. Finnerty, as Successor Personal Representaive of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office , a 14-page opinion, Judge Mathias writes:

Corrine R. Finnerty (“Finnerty”), as successor personal representative of the estate of Dora Grace Lee (“the Estate”), appeals from the trial court's entry of summary judgment in favor of attorney Joseph A. Colussi and The Colussi Law Office (collectively, “Colussi”) on the Estate's legal malpractice claim and Colussi's counterclaim for unpaid attorney fees. On appeal, the Estate argues that genuine issues of material fact preclude summary judgment in Colussi's favor. Concluding that such genuine issues of material fact exist and preclude summary judgment in Colussi's favor, we reverse and remand for proceedings consistent with this opinion. * * *

Here, Colussi is seeking recovery not only for his services relating to opening and administering the estate, but also for time he spent investigating Mason's embezzlement and seeking recovery of misappropriated assets. But if the jury concludes that Colussi breached his duty to the Estate by failing to monitor or control the Estate bank account and that this breach was a proximate cause of the Estate's losses, the fees relating to Colussi's investigation of Mason's embezzlement and his efforts to recover the Estate's assets would be attributable to Colussi's own negligence. Put differently, if Colussi committed malpractice by failing to prevent Mason's embezzlement, then the fees relating to Colussi's investigation and recovery of embezzled assets would not have been incurred but for Colussi's negligence. Indeed, Colussi initially estimated that his total fee would be between $3,000 and $4,000, but due to additional hours Colussi dedicated to unraveling Mason's misconduct, the total fee came over $6,000. Appellant's App. p. 64. Under these facts and circumstances, it is for the jury to determine whether the Estate's retention of this portion of the benefit conferred by Colussi would be unjust and therefore support recovery on a theory of quantum meruit. * * *

Conclusion. The trial court erred in granting summary judgment in Colussi's favor on the Estate's claim for legal malpractice and on Colussi's counterclaim for unpaid attorney fees.

NFP civil opinions today (1):

Kirk R. Bristol v. Latasha Bristol (NFP)

NFP criminal opinions today (2):

Harold A. Miller v. State of Indiana (NFP)

Damon A. Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on September 23, 2011 11:13 AM
Posted to Ind. App.Ct. Decisions