In Re Estate of Lee
2011 Ind. App. LEXIS 1776
| Ind. Ct. App. | 2011Background
- Lee died testate; co-personal representatives were Ricketts and Mason; Colussi was retained to represent the Estate and opened the estate, including bank account setup; Mason controlled the estate account and misappropriated funds; embezzlement was discovered leading to estate asset recovery and representation withdrawal; Finnerty became successor personal representative; trial court entered summary judgment for Colussi on malpractice and fees; Court of Appeals reverses and remands for fact-finding on material issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Colussi owe a duty to monitor the estate account as the estate's attorney? | Estate—duty to monitor under standard of care. | Colussi—no duty to monitor under statutory/common-law basis. | Duty exists; genuine issue of material fact on breach. |
| Was there a genuine issue of material fact on breach of duty by Colussi? | Bigley's testimony shows breach of standard of care. | Evidence insufficient to prove breach; no uniform practice required. | Yes, genuine issue of material fact precludes summary judgment on breach. |
| Whether Colussi is entitled to fees under quantum meruit given potential malpractice | If malpractice proven, fees may be reduced by quantum meruit. | Fees barred or limited if malpractice established. | Issue of quantum meruit remains; summary judgment on fees improper. |
Key Cases Cited
- Rice v. Strunk, 670 N.E.2d 1280 (Ind.1996) (employment creates duty to exercise ordinary skill and knowledge)
- Solnosky v. Goodwell, 892 N.E.2d 174 (Ind.Ct.App.2008) (duty to client; standard of care for attorneys)
- Clary v. Lite Machs. Corp., 850 N.E.2d 423 (Ind.Ct.App.2006) (elements of legal malpractice; breach; causation)
- Hacker v. Holland, 570 N.E.2d 951 (Ind.Ct.App.1991) (expert testimony on standard of care in legal malpractice)