Paul Fletcher v. Hoeppner Wagner & Evans, LLP ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 19, 2019 *
Decided August 19, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18-2953
PAUL FLETCHER, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern District
of Indiana, Hammond Division.
v. No. 2:14-CV-231-TLS
HOEPPNER WAGNER & EVANS, LLP, Theresa L. Springmann,
and WAYNE GOLOMB Chief Judge.
Defendants-Appellees.
ORDER
Scott Taylor named Paul Fletcher as the beneficiary to his retirement accounts
and authorized Wayne Golomb to manage the accounts. Weeks before he died, Taylor
replaced Fletcher with Mark Zupan as the beneficiary. Fletcher suspects that Golomb
helped Zupan forge paperwork to make Zupan the beneficiary. Represented for a time
by Hoeppner Wagner & Evans, LLP, Fletcher sued Zupan in Indiana state court and lost
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-2953 Page 2
at a bench trial. Now in federal court, see 28 U.S.C. § 1332, Fletcher sues Golomb for
constructive fraud and the law firm for malpractice. The district court entered summary
judgment for the defendants. Because Fletcher has not supplied evidence suggesting
that Golomb benefited from the alleged scheme to switch beneficiaries or that the law
firm provided subpar representation to Fletcher, we affirm the judgment.
We recite the undisputed facts, drawing inferences in Fletcher’s favor. See Holtz
v. J.J.B. Hilliard W.L. Lyons, Inc., 185 F.3d 732, 738 (7th Cir. 1999). Taylor opened three
retirement accounts with Fidelity. He designated his friend Fletcher as the accounts’
beneficiary and gave Golomb “limited trading authori[ty].” Afterwards, in the summer
of 2008, Fidelity received calls from Golomb and Zupan and someone who identified
himself as Taylor. “Taylor” asked Fidelity to make Zupan the beneficiary to his
accounts. Fidelity mailed the paperwork to Taylor’s current address and later received
it signed. The accounts were worth about $300,000 in September, when Taylor died.
After Taylor died, his mother gave Golomb $30,000. Golomb says that Taylor’s
mother (now deceased) told him that Taylor had wanted to reimburse him for a mistake
that Taylor, a specialty mechanic, made when repairing one of his vintage cars. Fletcher
responds that Golomb said at another time that he was satisfied with Taylor’s repair
work and that Taylor never mentioned any mistake to his associates.
Suspecting that Zupan impersonated Taylor when speaking with Fidelity and
forged the change-of-beneficiary form, Fletcher sued Zupan in Indiana state court. After
firing his first law firm, Fletcher retained Hoeppner Wagner and Evans, LLP. The firm
successfully moved to reinstate Fletcher’s case (which had been dismissed for failure to
prosecute), reviewed depositions that the prior firm had taken, interviewed witnesses,
subpoenaed phone records and UPS tracking information, deposed Zupan, and
defended Fletcher’s deposition. It also hired a handwriting expert who opined that the
signature on the change-of beneficiary form likely was authentic. The firm later ended
its representation with Fletcher, and Fletcher, with new counsel, lost his case at trial.
Turning to federal court, Fletcher sued Golomb for constructive fraud and the
law firm for legal malpractice. He lost at summary judgment. The court determined that
Fletcher did not show that Golomb owed him a fiduciary duty or benefited from the
alleged fraud. It ruled later that Fletcher had shown neither that the law firm’s work
was substandard or obviously inadequate.
On appeal, Fletcher first challenges the entry of summary judgment for Golomb
on his constructive-fraud claim. To overcome summary judgment on this claim, he
No. 18-2953 Page 3
needed to furnish evidence that Golomb owed him a duty and gained an advantage at
his expense. See Strong v. Jackson, 777 N.E.2d 1141, 1147 (Ind. Ct. App. 2002). Fletcher
argues that Golomb’s trading authority meant that he owed Fletcher—as the initial
beneficiary—a fiduciary duty, and that a reasonable jury could conclude that Golomb
received $30,000 for helping Zupan cut Fletcher out of the $300,000 in the accounts.
We agree with the district court that Fletcher has not provided any evidence that
Golomb benefited from the alleged scheme. Fletcher trumpets the $30,000 that Taylor’s
mother paid to Golomb, but he offers no evidence that she paid Golomb this sum for
participating in the supposed scheme. Fletcher’s evidence suggests only that a jury
might disbelieve Golomb’s evidence that the mother paid Golomb to compensate him
for Taylor’s car-repair mistake. But a plaintiff cannot get to a jury simply by casting
doubt on the defendant’s evidence; “[i]nstead, the plaintiff must present affirmative
evidence in order to defeat a properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Fletcher has furnished no
evidence suggesting that the payment was Golomb’s reward for the beneficiary change,
so summary judgment was proper. (Because Fletcher failed to make this showing, we
need not assess what duty, if any, Golomb owed Fletcher.)
Fletcher next asserts that he could succeed at trial on his legal malpractice claim
against the firm, but we disagree. To withstand summary judgment, Fletcher needed to
put forth evidence that the firm failed to exercise ordinary skill and knowledge, injuring
him. See Gates v. O'Connor, 111 N.E.3d 215, 223–24 (Ind. Ct. App. 2018). Establishing the
applicable standard of care generally requires expert testimony, except in “very
limited” circumstances where the standard is “within the common knowledge of the
community” or counsel’s negligence is “grossly apparent.” Barkal v. Gouveia & Assocs.,
65 N.E.3d 1114, 1119–20, 1122 (Ind. Ct. App. 2016) (quoting Storey v. Leonas, 904 N.E.2d
229, 238 (Ind. Ct. App. 2009)). Fletcher did not offer an expert’s opinion. (The firm’s
expert meanwhile opined that it had “met the standards of care and skill in [its]
representation.”) Moreover, Fletcher’s contentions—that the firm pursued inadequate
discovery and too-narrow a legal theory—are not matters of common knowledge or
grossly apparent. See id. at 1122; Storey, 904 N.E.2d at 238. Fletcher raises one last
argument: the firm failed to evaluate a potential malpractice claim against his prior
attorneys. But he did not retain the law firm for that purpose, so it had no duty to do so.
AFFIRMED