Fletcher v. Hoeppner Wagner & Evans et al

Filing 204

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the 137 Motion for Summary Judgment is GRANTED, and all claims against Defendant Wayne Golomb (Counts II-IV of the first amended complaint), are DISMISSED WITH PREJUDICE. Addi tionally, the 139 Motion for Sanctions is DENIED. Finally, the 196 Motion to Strike Certain Exhibits is DENIED. This case remains pending on Count I against Defendant, Hoeppner Wagner & Evans, LLP. Signed by Judge Rudy Lozano on 9/25/2017. (Copy mailed to pro se party)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PAUL FLETCHER,
Plaintiff,
vs.
HOEPPNER WAGNER & EVANS,
LLP, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Cause No. 2:14-CV-231

OPINION AND ORDER
This matter is before the Court on: (1) Defendant Wayne
Golomb’s Motion For Summary Judgment, filed by Defendant, Wayne
Golomb, on January 9, 2017 (DE #137); (2) Defendant Wayne Golomb’s
Motion For Sanctions, filed by Defendant, Wayne Golomb, on January
9, 2017 (DE #139); and (3) Defendant Wayne Golomb’s Motion to
Strike Certain Exhibits, filed by Defendant, Wayne Golomb, on July
11, 2017 (DE #196).

For the reasons set forth below, the Motion

for Summary Judgment (DE #137) is GRANTED, and all claims against
Defendant

Wayne

Golomb

(Counts

II-IV

of

the

first

amended

complaint), are DISMISSED WITH PREJUDICE. Additionally, the Motion
for Sanctions (DE #139) is DENIED. Finally, the Motion to Strike
Certain Exhibits (DE #196) is DENIED. This case remains pending on
Count I against Defendant, Hoeppner Wagner & Evans, LLP.
BACKGROUND
Plaintiff,

Paul

Fletcher,

who

is

currently

pro

se,

has

asserted three claims against Defendant, Wayne Golomb: constructive
fraud, constructive trust, and “accounting and turnover.” (DE #38,
First Am. Compl.) The instant case stems from Fletcher’s belief
that he is entitled to inherit money after his friend Scott
Taylor’s death, and his belief that Wayne Golomb and another
individual,

Mark

Zupan,

conspired

together

beneficiary changed unbeknownst to Taylor.

to

have

Taylor’s

Specifically, Fletcher

believes that Zupan impersonated Taylor on a telephone call to
Fidelity requesting a beneficiary change form, and that Taylor’s
signature was forged on that document. (DE #189 at 22-23.) Taylor
entrusted Golomb to manage some of his financial accounts, and
Golomb had limited trading authority on three of Taylor’s Fidelity
retirement accounts.
Defendant, Wayne Golomb, filed the instant motion for summary
judgment on January 9, 2017 (DE #137), asking for judgment on the
claims against Golomb.

On January 19, 2017, Golomb filed a notice

of the summary judgment motion, alerting pro se Plaintiff to his
duty to respond in accordance with Timms v. Frank, 953 F.2d 281
(7th Cir. 1992).

After a series of extensions and other pretrial

motions, Fletcher filed a response on June 13, 2017 (DE #189).

On

July 11, 2017, Golomb filed a reply (DE #198). Fletcher then filed
a surreply on August 7, 2017 (DE #203).
On the same day he filed his motion for summary judgment,
Golomb also filed a motion for sanctions (DE #139).

2

Golomb argues

that from the beginning of this litigation, it has been clear that
Fletcher lacks any evidence supporting his claims against Golomb,
and the case is patently frivolous. As such, Golomb requests the
Court impose sanctions and compensate Golomb for the costs and fees
expended in defending this alleged frivolous claim.

In his

response filed on February 16, 2017, Fletcher contends that he does
possess circumstantial evidence to support his claims, and that he
has

been

actively

seeking

additional

discovery

litigation, so his claims cannot be frivolous.
filed a reply on February 22, 2017

during

(DE #154).

the

Golomb

(DE #158), arguing Fletcher’s

response was untimely, and that sanctions are appropriate and
warranted.
On July 11, 2017, Golomb filed a Rule 56 motion to strike
certain

exhibits

that

Plaintiff

attached

to

his

opposition to Golomb’s motion for summary judgment.

response

in

(DE #196.)

Fletcher filed a response in opposition to the motion to strike on
August 7, 2017.

(DE #202.)

All of the instant motions are fully briefed and ready for
adjudication.
DISCUSSION
Undisputed Facts
This case involves a lengthy set of facts.

On July 7, 2014,

Plaintiff filed a pro se Complaint for Legal Malpractice in the
above captioned matter (DE #1).

3

On October 17, 2014, before

service was made on any defendant, Attorney Alison Downs Spanner
appeared on behalf of Fletcher (DE #6).

Shortly thereafter, on

November 17, 2014, Attorneys Donald L. Johnson and Julie A. Boynton
filed Applications to Appear Pro Hac Vice on behalf of Fletcher (DE
##10, 11).

Attorney Spanner withdrew her appearance on December

11, 2014 (DE ##20, 21).

Attorneys Johnson and Boynton withdrew

their appearances in August and November 2016, and Fletcher has
represented himself pro se ever since.
On March 6, 2015, Plaintiff, by counsel, filed his Amended
Complaint (DE #38).

In the Amended Complaint, Plaintiff alleges

that Taylor told Fletcher he was the beneficiary of his investment
accounts which were valued at just under $1,000,000.00. (DE# 38 at
¶ 17.)

Plaintiff further alleges that based on "conversations

which Taylor had with Plaintiff and other friends before his death,
[the defendant] Golomb had control over Taylor's accounts at
Fidelity and approximately $500,000 in maturing certificates of
deposit belonging to Taylor."

(DE 38 at ¶ 21).

Despite these

claims, Plaintiff acknowledges in his Amended Complaint that he
"has been unable to corroborate with documentary evidence what he
had been told by Taylor."

(DE 38 at ¶ 89).

However, Fletcher does

attach documents to his memorandum in opposition showing that
Fletcher was at one point the primary beneficiary on the three
Fidelity retirement accounts.

(DE #189-1, Ex. A.)

Golomb previously filed a Motion to Dismiss for Failure to

4

State a Claim with this Court on April 20, 2015 (DE #46).
argued

the

Amended

Complaint

only

contained

unsupported conspiracy theories (DE #46).
in

his

response

that

he

lacked

Golomb

self-serving,

Plaintiff acknowledged

evidentiary

support

for

his

allegations against Golomb; however, he cast blame on Golomb for
failing to disclose information and documents, and on his own
former attorneys.

(DE #60.)

This Court denied Golomb’s motion to

dismiss on July 29, 2015 (DE #66).

In considering the procedural

posture of the case, this Court found Plaintiff had successfully
pled his causes of action when the facts were construed in the
light most favorable to Plaintiff (as they must be at the dismissal
stage).

(DE #66).

Since the denial of Golomb’s motion to dismiss, this matter
has been subjected to more than a year of discovery.

This

discovery has included the depositions of Wayne Golomb, Paul
Fletcher, and Carole Wockner (Mr. Fletcher's wife).
included

the

Interrogatories,
Admissions.

exchange
Requests

of

written

for

It has also

discovery,

Production

and

including

Requests

for

Plaintiff initially claimed in his Amended Complaint

and response to the motion to dismiss that he did not have
evidentiary support for his allegations because Golomb supposedly
had the information.
to Golomb.

Therefore, Plaintiff issued Interrogatories

(See DE #140-1, Ex. A.)

In these Interrogatories,

Golomb was asked about the current location of funds or assets that

5

belonged to Scott Taylor. (Id. at Interrogatory No. 1.)

In

response, Golomb answered that his "involvement with Scott Taylor's
investment accounts was limited to having trading authority as to
some

of

Scott

Taylor's

retirement

accounts

held

Investments during Scott Taylor's lifetime." Id.

by

Fidelity

Golomb further

indicated that he had no record of those accounts. Id.

Golomb was

also asked whether he was currently in possession or control of any
of Mr. Taylor's assets, and Golomb stated that he was not.
Interrogatory No. 15.)

(Id. at

In addition to Golomb having limited

trading authority over Taylor’s Fidelity retirement accounts, they
had another relationship - Taylor was also a skilled mechanic who
worked on Golomb’s cars.

(First Am. Compl. ¶¶ 13, 19.)

Plaintiff also served Golomb with Requests for Production.
(See DE #140-2, Ex. B.)

At that time, Plaintiff requested that

Golomb produce, inter alia, the following materials:
Your entire file related to Scott Taylor.
Documents related to any funds or assets belonging to or in
which Scott Taylor had an interest that you held, received,
managed, accessed, controlled, invested, transacted, advised,
kept, or otherwise had any involvement including but not
limited to account statements, cancelled checks, portfolios,
and the like.
Documents reflecting any transfer of funds or assets owned by
Scott Taylor or in which Scott Taylor transferred to you, a
relative of yours, an agent of yours, or a designee of yours.
Documents related to any funds you held, received, accessed,
managed, controlled, invested, transacted, advised, kept, or
otherwise had any involvement which Scott Taylor owned or had
an interest.

6

Documents related to or concerning Scott Taylor and/or his
assets.
All certificates of deposit in which Scott Taylor had an
interest.
Statements from any stock brokerage firms or from commodity
brokerage firms for accounts wholly or partially in the name
of Scott Taylor or under the name of any other person or
entity which are being held for the benefit of Scott Taylor.
Id.

In response to each of these requests, Golomb responded that

he did not have any responsive documents.

Id.

On March 23, 2016, Plaintiff took the deposition of Golomb.
Golomb testified that during the last two years of Taylor’s life,
Taylor “was not interested in whatever happened to the money” and
Golomb did not remember making trades for him anymore.
Dep. at 39-40.)

(Golomb

Yet, Fletcher points to Fidelity’s Symphony log

which shows that Golomb was still calling about Taylor’s accounts,
making certain actions on them, requesting information about them,
and trying to gain additional trading authorization, even through
2007 and 2008. (DE #189-3, Ex. E.)
Later

during

the

litigation,

Golomb

Admissions to the Plaintiff in June 2016.

issued

Requests

for

(See DE #140-3, Ex. C.)

Plaintiff was first asked to admit that he does not have any
evidence that Scott Taylor owned any certificates of deposit at the
time of his death.

(Id. at Request No. 1.)

Plaintiff said he had

received documents from Fidelity and Chase, but he was still
"awaiting documents and deposition testimony."

Id.

Similarly,

Plaintiff was asked to admit that he did not have any evidence that
7

Golomb possessed or controlled any certificates of deposit that may
have been held by Taylor.

(Id. at Request No. 2.) Plaintiff said

he was unable to answer because "he is awaiting documents and
deposition testimony which may establish who has the CD proceeds."
Id.
In the Requests for Admissions, Plaintiff was further asked to
admit that he does not have any evidence that Golomb conspired or
collaborated with Mark Zupan, or anyone else, to change Mr.
Taylor's beneficiaries on any accounts.
Plaintiff

indicated

that

he

"simply

(Id. at Request No. 6.)
is

unable

based

on

the

information available to him to admit or deny this allegation."
Id.

Similarly, Plaintiff was "simply [ ] unable based on the

information available to him to admit or deny" whether he had any
evidence that Golomb, or any other individual, forged Taylor's name
on any beneficiary form.

(Id. at Request Nos. 7 and 8.)

Plaintiff

was also "simply [ ] unable based on the information available to
him to admit or deny" whether he had any evidence that Golomb
conspired with anyone to deprive Plaintiff of any assets from
Taylor's estate or retirement accounts; whether he had any evidence
that Golomb wrongfully obtained any assets or funds from Taylor; or
whether he had any evidence that Golomb was aware that Scott Taylor
had changed his beneficiary on any of his accounts.

(Id. at

Request Nos. 9, 10 and 12.) Finally, Plaintiff was unable to admit
or deny whether he had any evidence that Golomb withheld or

8

transferred any funds belonging to Plaintiff or whether Golomb
currently holds any funds that belong or belonged to Taylor or the
plaintiff

because

testimony."

"he

is

awaiting

documents

and

deposition

(Id. at Request Nos. 13 and 14.)

On October 12, 2016, Plaintiff’s deposition was taken.
DE #140-4, Ex. D, Fletcher Dep. at 1.)

(See

During his deposition,

Fletcher was asked why he sued Golomb. (Id. at p. 199, ll. 14-15.)
In response, Plaintiff indicated, "based on a lot of the phone
records from AT&T that he was somehow involved with Mark Zupan in
controlling what transpired with Scott's savings." (Id. at p. 199,
ll. 16-19.)

Plaintiff was additionally questioned:

Q: Okay. And you mentioned phone records that showed
some calls between Mr. Zupan and Mr. Golomb; is that right?
A: Yes.
Q: And correct me if I'm wrong, but those phone records show
who placed the call; is that right?
A: Yes.
Q: And the duration of the call, is that right?
A: Yes.
Q: But they do not show, obviously, a transcript of the call?
A: No.
Q: So, is it fair to say that you do not have any information
regarding what was discussed during any of those - A: No.
Q: Telephone conversations?
A: No. I don't have any information.
9

Q: So, you don't know whether these accounts were discussed
during any of those conversations, is that correct?
A: I wouldn't be able to prove it, no.
(Id. at p. 201, ll. 18-25; p. 202, ll. 1-14.)
Fletcher has attached to his memorandum in opposition to the
motion for summary judgment Fidelity “symphony logs” for Taylor’s
accounts,

which,

while

somewhat

difficult

for

the

Court

to

decipher, show dates and times of phone calls about Taylor’s
Fidelity account, and notes by the Fidelity employee about each
conversation.

(DE #189-1 Ex. E.)

While Golomb testified during

his deposition that he never did anything to assist Taylor in
changing beneficiaries (Golomb Dep. at 117-18), Kim Rice from
Fidelity stated in her deposition in the underlying state case that
Golomb asked her to send Taylor a beneficiary change form.

(Rice

Dep., DE #189-5, Ex. X at 56-57.) Rice testified that she returned
Taylor’s telephone call (Fletcher believes Zupan impersonated
Taylor during this call), and per Taylor’s request, she pre-filled
Mark Zupan’s name and information on the change of beneficiary
form, and then sent it to Taylor’s home in Arkansas for his
signature.

(Id. at 23-29.)

Fletcher has also produced Zupan’s

phone records which show that between January 1, 2008, through
early October 2008, Golomb called Zupan’s home phone number 6
times.

(DE #189-4, Ex. R.) Finally, while Golomb testified during

his deposition that he did not know if Taylor had CD accounts
(Golomb Dep. at 30-31), there is evidence in the Fidelity Symphony
10

Log that might support an inference that he did know about the CDs
(DE #189-1, Ex. E).
Plaintiff was also asked during his deposition about his
allegations pertaining to the alleged forgery of the beneficiary
form.

(DE #138-3, Fletcher Dep. at 209-210.) Plaintiff conceded

that he did not have any "physical evidence" that the change of
beneficiary form was falsified in any way.

(Id. at 211-12.)

Further, Plaintiff testified that he did not have any evidence that
Golomb had any knowledge of any individual forging Taylor's name on
any beneficiary form.

(Id. at

218.)

Plaintiff was asked during

his deposition whether he had any evidence that Golomb held
$500,000.00 in certificates of deposit owned by Mr. Taylor, and he
admitted he did not have any such evidence.

(Id. at 214.)

Similarly, Plaintiff testified that he did not have any evidence of
certificates of deposit held by Scott Taylor at all at the time of
his death.

(Id. at 216.)

In opposition to the motion for summary

judgment, Fletcher has now attached documents as exhibits showing
there were CD accounts held at Chase Bank in Crown Point, Indiana,
but there is no evidence that Fletcher was ever a beneficiary on
these accounts (only that he was at one point the beneficiary on
the three retirement accounts at Fidelity), or that Golomb had any
trading authority on the Chase Bank CD accounts.

(DE #189-2, Ex.

F.)
When asked about the alleged conspiracy between Golomb and

11

Mark Zupan, Plaintiff again indicated that he does not have any
direct evidence to support this claim.

(Fletcher Dep. at 217-18.)

Plaintiff also admitted that he did not have any evidence that
Golomb wrongfully obtained any assets or funds.

(Id. at 219-20.)

However, Taylor’s mother did give Golomb $30,000 afer Taylor died,
because, according to Elsie Taylor, her son made a mistake on one
of

Golomb’s

engines

compensated for it.
I.

and

he

would

have

liked

Golomb

to

be

(Golomb Dep. at 128.)

Motion to Strike Certain Exhibits
Golomb moves to strike certain exhibits attached to Fletcher’s

response in opposition to the motion for summary judgment.

He

argues that Exhibits A-F, L, and R-W (documents from Fidelity,
JPMorgan Chase, probate, AT&T call records, and Taylor’s driver
records), are not authenticated and inadmissible hearsay.
#196.)

(DE

Additionally, he argues that Exhibits J, K, N, and O

(affidavits), should be stricken because they are not based on
personal

knowledge

hearsay,

and

and

conclusory

they

contain

statements,

unsupported
and

Exhibit

speculation,
Y

should

be

stricken because it was not produced in discovery. (Id.) Finally,
Golomb argues that Exhibits A through Y should be stricken because
they are irrelevant to any pending claim before the court.

(Id.)

As to the argument that the call records and financial
records are unauthenticated, on a motion for summary judgment, “[a]
party may object that the material cited to support or dispute a

12

fact cannot be presented in a form that would be admissible in
evidence.”

Fed. R. Civ. P. 56(c)(2) (emphasis added).

“In other

words, the Court must determine whether the material can be
presented in a form that would be admissible at trial, not whether
the material is admissible in its present form.”

Stevens v.

Interactive Fin. Advisors, Inc., No. 11 C 2223, 2015 WL 791384, at
*2 (N.D. Ill. Feb. 24, 2015); see also Olson v. Morgan, 750 F.3d
708, 714 (7th Cir. 2014) (“We note that the Federal Rules of Civil
Procedure allow parties to oppose summary judgment with materials
that would be inadmissible at trial so long as facts therein could
later be presented in an admissible form.”) (emphasis in original).
Here, Golomb has not argued that any of the documents are not what
they purport to be, or that they cannot be presented in a form that
would be admissible as evidence.
With regards to the affidavits and other attached documents,
motions to strike are heavily disfavored, and usually only granted
in circumstances where the contested evidence causes prejudice to
the moving party.

Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695

(N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303,
2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). Furthermore, it
is the function of this Court, with or without a motion to strike,
to

carefully

review

the

evidence

and

to

eliminate

from

consideration any argument, conclusions, and assertions unsupported
by the documented evidence of record offered in support of the

13

statement.

See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392

(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co.,
Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D.
Ill. Apr. 10, 2016); Tibbetts v. RadioShack Corp., No. 03 C 2249,
2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v.
Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).
In this case, the Court has sifted through the voluminous
evidence and has considered it under the applicable federal rules,
giving each piece the credit to which it is due.

Accordingly, the

Court denies the motion to strike (DE #196) as unnecessary.
II.

Motion for Summary Judgment
Summary judgment must be granted when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).

Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes over
facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”

Id. To

determine whether a genuine dispute of material fact exists, the
Court must construe all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in that party’s

14

favor.

See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

However, “a court may not make credibility determinations, weigh
the evidence, or decide which inferences to draw from the facts;
these are jobs for a factfinder.”

Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted).
A party opposing a properly supported summary judgment motion
may not rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence [he] contends will
prove [his] case.”
651,

654

(7th

Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d

Cir.

2010).

“[I]nferences

relying

on

mere

speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).

If the non-

moving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary
judgment is proper.

See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).
Before analyzing the three claims brought by Fletcher, the
Court addresses Golomb’s request that it take judicial notice of a
state court case: Fletcher filed a forgery suit against Mark Zupan
in Lake Superior Court under Cause No. 45D02-1405-PL-00014, in
which following a bench trial, on July 22, 2016, the Honorable
Hawkins entered a judgment in favor of the defendant. (DE #138, at
3 n. 1.) Fletcher opposes the request for judicial notice, arguing
it would be prejudicial to him because of his attorney’s deficient

15

performance at that trial.

(DE #189 at 2.)

Court records are the

most commonly noticed facts, and it is proper for this Court to
take judicial notice of the state case against Zupan.

Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081-82
(7th Cir. 1997); Daniel v. Cook County, 833 F.3d 728, 742 (7th Cir.
2016) (“Courts routinely take judicial notice of the actions of
other courts or the contents of filings in other courts.”); Fed. R.
Evid. 201(b).
On the other hand, the Court will not treat the decision by
Judge Hawkins as collateral estoppel in this case, because Golomb
only first raised his collateral estoppel argument in his reply
memorandum.

Although this argument may have merit, arguments

raised for the first time in a party’s reply brief are waived, and
the argument is therefore not considered by the Court.

Cameron v.

Frances Slocum Bank & Trust Co., 824 F.2d 570, 575 n.4 (7th Cir.
1987); see also Shlay v. Montgomery, 802 F.2d 918, 922 n.2 (7th
Cir. 1986).
A.

Constructive Fraud

Some of Fletcher’s evidence seems to go against statements
Golomb made during his deposition.

However, even if we take

Fletcher’s evidence as true - that Golomb was active with Taylor’s
accounts the few years before he died, that he knew about the Chase
CDs, that Golomb spoke with Rice from Fidelity and let her know
that Taylor would be requesting a change of beneficiary form, and

16

that Golomb and Zupan spoke on the phone at times, this does not
alter or lessen Fletcher’s duty to properly establish a cause of
action.
For constructive fraud, a plaintiff must plead: (1) a duty
owing by the party to be charged to the complaining party due to
their relationship; (2) violation of that duty by the making of
deceptive material misrepresentations of past or existing facts or
remaining silent when a duty to speak exists; (3) reliance thereon
by the complaining party; (4) injury to the complaining party as a
proximate result thereof; and (5) the gaining of an advantage by
the party to be charged at the expense of the complaining party.
Demming v. Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011)
(citing

Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996)).

Importantly, the plaintiff has the burden of proving the first and
last of these elements.
words,

to

prove

Demming, 943 N.E.2d at 892.

constructive

fraud,

Fletcher

must

In other
show

the

existence of a duty owed by Golomb to him because of their
relationship, and that Golomb gained an advantage.

See Morfin v.

Estate of Martinez, 831 N.E.2d 791, 802 (Ind. Ct. App. 2005).
The duty can arise “in one of two ways: by virtue of the
existence of a fiduciary relationship, or in the case where there
is a buyer and a seller, where one party may possess knowledge not
possessed

by

superiority

the
over

other
the

and

may

17

enjoy

Morfin,

other.”

thereby

831

a

position

N.E.2d

at

of

802.

Generally, whether a legal duty exists between parties is a
question of law.

See Purcell v. Old Nat’l Bank, 972 N.E.2d 835,

842-43 (Ind. 2012).
Golomb argues that there is no fiduciary relationship between
Golomb and Fletcher. (DE #138 at 10.) “A confidential or fiduciary
relationship exists when confidence is reposed by one party in
another with resulting superiority and influence exercised by the
other.” Morfin, 831 N.E.2d at 802 (quotation omitted); see also No
Baloney Mktg., LLC v. Ryan, No. 1:09-cv-0200-SEB-TAB, 2010 WL
1286720 (S.D. Ind. Mar. 26, 2010).

In this case, it cannot be said

that Fletcher gave his confidence to Golomb, as it was Taylor who
gave Golomb limited trading authority over the Fidelity investment
accounts.
have

“Examples of common relationships where Indiana courts

recognized

the

potential

for

a

fiduciary

duty

include

‘relations of attorney and client, principal and agent, husband and
wife, and parent and child.’” Zusy v. Int’l Med. Group., Inc., 500
F.Supp.2d 1087, 1099 (S.D. Ind. 2007) (quoting Sanders v. Townsend,
582 N.E.2d 355, 358 (Ind. 1991)).

Fletcher and Golomb do not fit

neatly into any of these recognized categories.

Moreover, a

trustee owes a fiduciary duty to a trust’s beneficiaries and is
obligated to carry out the trust according to its terms and to act
with fidelity and good faith.

In re Estate of Muppavarapu, 836

N.E.2d 74, 77 (Ill. App. Ct. 2005).

Yet, Golomb and Fletcher do

not exactly have a trustee/beneficiary relationship either, as

18

Fletcher himself quotes Fidelity’s Trading Authorization scope when
acting on behalf of account holder Taylor, which gave Golomb
limited trading authority to: buy and sell securities in the
account holder’s account; trade in the owner’s account; and receive
trade confirmations and account statements.

(DE #189 at 8; Pl.’s

Ex. D.)
Fletcher provides the Court with no legal argument or case law
in support of the proposition that Golomb (who had limited trading
authority

on

some

of

Taylor’s

retirement

accounts

held

by

Fidelity), owes Fletcher (the at one time beneficiary on those
accounts), a fiduciary duty.

While it seems possible that maybe

Golomb owed Fletcher a duty, as a beneficiary, to properly manage
the Fidelity funds so Fletcher would have something to inherit, it
is a further stretch that Golomb owed Fletcher a duty to protect
his status as beneficiary (or, as Fletcher alleges, to not assist
his beneficiary status in being fraudulently changed).

Moreover,

there is no evidence in the record that Golomb had the power to
change the beneficiary on Taylor’s behalf.

As such, it appears

that Fletcher has not established a fiduciary relationship between
himself and Golomb.
However, even if Fletcher could show that Golomb owed him a
fiduciary duty, Fletcher still cannot satisfy the fifth part of the
test - that Golomb gained an advantage at Fletcher’s expense.
Constructive fraud arises where a course of conduct “would secure

19

an unconscionable advantage.” In re Rueth Dev. Co., 976 N.E.2d 42,
52 (Ind. Ct. App. 2012).

Fletcher has not presented any evidence

that Golomb received any money from funds or certificates of
deposit upon Taylor’s death, much less presented evidence that
Golomb received money from funds that would have gone to Fletcher
if Fletcher was still the beneficiary. Moreover, Golomb has stated
he does not currently hold any funds that belonged to either Taylor
or Fletcher, and Fletcher has produced no contrary evidence.
The closest Fletcher comes to arguing that Golomb gained
financially at Fletcher’s expense, is when he points out that
Golomb

received

$30,000

from

Elsie

Taylor

(Taylor’s

mother).

Taylor used to work on Golomb’s engines, and according to Golomb:
“Scott made a mistake on one of my engines.
fixed.

And it had to be

And Scott felt bad about it and apparently had told her,

and she brought the matter up.

And she said that Scott would have

liked you to have been compensated for it.”

(Golomb Dep. at 128.)

But this was a gift from Taylor’s mother, after Taylor’s death, for
money that Taylor felt he owed Golomb from a mistake he made on his
car.

There is no evidence whatsoever that this money came out of

the retirement account that Golomb had limited trading authority
over, or that Fletcher should have received this money if he was
still the designated beneficiary.

Therefore, Fletcher has not

shown that Golomb gained financially at the expense of Fletcher.
Consequently, summary judgment is proper on Count II against

20

Wayne Golomb for Constructive Fraud.
B.

Constructive Trust

A constructive trust is “a legal fiction, a common-law remedy
in equity that may only exist by the grace of judicial action.”

In

re Nova Tool & Eng’g Inc., 228 B.R. 678, 680 (Bankr. N.D. Ind.
1998) (quotation omitted).
claims in restitution.”

It is an “equitable remedy for certain

In re Mississippi Valley Livestock, Inc.,

745 F.3d 299, 305 (7th Cir. 2014).

“[A] constructive trust may be

imposed where a person holding title to property is subject to an
equitable duty to convey it to another on the ground that he or she
would be unjustly enriched if permitted to retain it.”

Demming v.

Underwood, 943 N.E.2d 878, 895 (Ind. Ct. App. 2011). “An equitable
duty to convey the property may arise if the property was acquired
through a breach of fiduciary duty or constructive fraud.”

Id.

Fletcher alleges the following in support of his request for
a constructive trust:
Golomb is believed to have in his possession funds
which he was holding and managing for Taylor which
were intended to benefit Plaintiff on Taylor’s
death and which Golomb had an actual or equitable
duty not to keep but to convey to Plaintiff in
accord with Taylor’s stated wishes.
It was
Taylor’s stated wish that the accounts not be
probated but that Plaintiff be named as beneficiary
on the accounts so that the accounts would go to
Plaintiff outside of probate.
(First Am. Compl. ¶ 98.)

However, the undisputed facts show that

Golomb does not possess, hold, or control any property belonging to

21

either Taylor or Fletcher.
No. 15.)

(See DE #140-2, Ex. B, Interrogatory

Indeed, Fletcher himself quotes the Fidelity Trading

Authorization agreement which states that authorization privileges
terminate upon notification in writing of the death of the account
owner.

(DE #189 at 9, Ex. D.)

As such, there is no property in

his possession that should be conveyed to Fletcher; moreover, as
established earlier, there is no evidence of any constructive
fraud.

As such, summary judgment is appropriate

on Count III

against Wayne Golomb for constructive trust.
C.

Accounting and Turnover

Fletcher also seeks the equitable relief of accounting and
turnover.

In support, he alleges:
Golomb is holding funds which he was managing for
Taylor and which were intended to be given to
Plaintiff upon Taylor’s death and which information
and belief Golomb had a duty to tender the funds to
Plaintiff, Taylor’s beneficiary, upon Taylor’s
death.

(First Am. Compl. ¶ 100.)

As with the previous claim, this

allegation fails because there is no evidence that Golomb holds or
controls any funds belonging to Taylor or Fletcher.

Indeed, the

undisputed evidence shows the contrary.
As such, summary judgment is warranted on Count IV against
Wayne Golomb for accounting and turnover.
III. Motion for Sanctions
Defendant Golomb has filed a motion for sanctions pursuant to

22

Rule 11 of the Federal Rules of Civil Procedure as well as 28
U.S.C.

§

1927,

contending

Plaintiff

has

pursued

a

frivolous

lawsuit.
Rule 11(c)(2) provides that a motion for sanctions “must be
served under Rule 5, but it must not be filed or be presented to
the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after
service . . . .”

Fed. R. Civ. P. 11(c)(2); see also Matrix IV,

Inc. v. Am. Nat. Bank & Trust Co. Of Chicago, 649 F.3d 539, 552
(7th Cir. 2011) (“Rule 11(c) (2) provides that a motion for
sanctions must be served on the opposing party, but that it cannot
be filed with the court until 21 days have passed from the date of
service of the motion.”).

This 21-day “safe harbor” provision is

“not merely an empty formality.”

Divane v. Krull Elec. Co., 200

F.3d 1020, 1026 (7th Cir. 1999). While a minor technical violation
may be excused (for example, where the party seeking sanctions sent
a letter or demand more than 21 days in advance rather than a
formal motion), see Egan v. Huntington Copper Moody & Maguire,
Inc., No. 12 C 9034, 2015 WL 1631547, at *3 (N.D. Ill. Apr. 10,
2015), that is not the case here, where Golomb did not alert
Fletcher in advance that he would seek sanctions if Fletcher did
not dismiss the allegations against Golomb.1 “[A] district court

1

Golomb asserts in his memorandum that “[a]t several points
in this litigation,” it became clear that there was no evidence
supporting Plaintiff’s claims, and “[a]t each of these points,
23

cannot impose Rule 11 sanctions by motion where the movant ignores
the safe harbor.”
F.3d at 1025).

Egan, 2015 WL 1631547, at *3 (citing Divane, 200

Therefore, Golomb cannot prevail under Rule 11.

Golomb’s additional seeking of sanctions under section 1927 is
also unsuccessful.

28 U.S.C. section 1927 provides that “[a]ny

attorney or other person admitted to conduct cases in any court .
. . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.”

28 U.S.C. § 1927. A court can impose

such statutory sanctions against attorneys upon a showing of
subjective or objective bad faith.
F.2d 1181, 1184 (7th Cir. 1992).

Kotsilieris v. Chalmers, 966
Subjective bad faith must be

demonstrated “by evidence of malice or ill will,” and objective bad
faith may be shown by evidence of “extremely negligent conduct,
like reckless and indifferent conduct.”

Granite State Ins. Co. v.

Pulliam Enterps., Inc., No. 3:11-cv-432, 2015 WL 8904807, at *3
(N.D. Ind. Nov. 17, 2015)(quoting Webster v. Hilex Poly Co., No.
1:06-cv-529-RLY-DML, 2008 WL 5235975, at *2 (S.D. Ind. Dec. 15,
2008)).

Reckless conduct is sanctionable when “the attorney’s

actions [are] generally so completely without merit as to require

the plaintiff had the opportunity to voluntarily dismiss” (DE
#140 at 9), but nowhere in the motion for sanctions or
accompanying memorandum does Golomb state he gave Plaintiff the
requisite notice that if he did not dismiss his claims, Golomb
would seek Rule 11 sanctions.
24

the conclusion that they must have been undertaken for some
improper purpose.”

Id. (quoting Camarillo v. Pabey, No. 2:05-CV-

455 PS, 2007 WL 3102144, at *7 (N.D. Ind. Oct. 22, 2007)).
While there is some controversy about whether section 1927
could apply to an initial complaint (as opposed to just misconduct
by

an

attorney

during

the

course

of

a

case),

the

provision

authorizes the Court to award only “excess costs, expenses, and
attorneys’ fees reasonably incurred because of [the unreasonable
and vexatious conduct].”

Egan, 2015 WL 1631547, at *4 (citing

quoting 28 U.S.C. § 1927 (emphasis in original).)
shown

which

excess

costs

were

caused

by

Golomb has not

Fletcher’s

previous

attorneys’ alleged vexatious behavior and consequent multiplication
of the proceedings.

Nor has he presented any evidence that his

former attorneys acted with any malice or ill will, or conduct that
must have been undertaken for some improper purpose.

As such,

Golomb cannot prevail under section 1927 either.
CONCLUSION
For the reasons set forth below, the Motion for Summary
Judgment (DE #137) is GRANTED, and all claims against Defendant
Wayne Golomb (Counts II-IV of the first amended complaint), are
DISMISSED WITH PREJUDICE.
(DE #139) is DENIED.

Additionally, the Motion for Sanctions

Finally, the Motion to Strike Certain

Exhibits (DE #196) is DENIED.

This case remains pending on Count

I against Defendant, Hoeppner Wagner & Evans, LLP.

25

DATED: September 25, 2017

/s/ RUDY LOZANO, Judge
United States District Court

26