ACF 2006 CORP v. CONOUR et al

Filing 134

ENTRY on Motion to Reconsider - Intervenors have not demonstrated that the Court committed a manifest error of law in finding that their interests are subordinate to the perfected security interest held by ACF with respect to the property at issue in this action. Therefore, Intervenors' Motion to Reconsider (Filing No. 121 ) is DENIED. Signed by Judge Tanya Walton Pratt on 2/24/2015. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ACF 2006 CORP,
Plaintiff,
v.
WILLIAM F. CONOUR
Clerk’s Entry of Default Entered 11/18/2013,
CONOUR LAW FIRM, LLC
Clerk’s Entry of Default Entered 11/18/2013,
MARK C. LADENDORF, ATTORNEY AT
LAW, P.C.,
TIMOTHY F. DEVEREUX,
COHEN & MALAD, LLP, and
JEFFREY A. HAMMOND,
Defendants.

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Case No. 1:13-cv-01286-TWP-DML

ENTRY ON MOTION TO RECONSIDER
This matter is before the Court on a Motion to Reconsider filed by Intervenors, David L.
Beals, Loretta Beals, Kristen Beals (“the Beals”), Sara J. Skelton (Masterson) individually and as
Personal Representative of the Estate of Michael Condon, and Zackery Condon (“the Condons”)
(collectively, the “Intervenors”) (Filing No. 121). Intervenors request that the Court reconsider its
ruling on Plaintiff ACF 2006 Corp.’s (“ACF”) Motion for Summary Judgment, Intervenors’ CrossMotion for Summary Judgment, and Defendants Timothy F. Devereux’s (“Mr. Devereux”) and
Mark C. Ladendorf, Attorney at Law, P.C.’s (“Ladendorf”) Motion for Summary Judgment.
(Filing No. 119). For the reasons stated below, the Motion is DENIED.
I.

LEGAL STANDARD

Reconsideration of summary judgment under Federal Rule of Civil Procedure 59(e) is
appropriate “if there has been a mistake of law or fact.” Demos v. City of Indianapolis, 139 F.

Supp. 2d 1026, 1027 (S.D. Ind. 2001), aff’d, 302 F.3d 698 (7th Cir. 2002) (quoting Smith v. Apfel,
No. 97 C 3173, 1999 WL 410018, at *2 (N.D. Ill. May 27, 1999)). “The rule essentially enables
a district court to correct its own error, sparing the parties and the appellate courts the burden of
unnecessary appellate procedures.” Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp.,
51 F.3d 746, 749 (7th Cir. 1995)).
II.

BACKGROUND

The facts of this case are set forth in detail in the Court’s Entry on Cross-Motions for
Summary Judgment (Filing No. 119) so only a brief synopsis will be repeated here. Intervenors
are former clients of Defendant William F. Conour (“Mr. Conour”), and all are victims of his
embezzlement of settlement proceeds which Mr. Conour claimed to have held in trust. On
February 26, 2014, the Beals obtained a default judgment on liability against Mr. Conour and his
law firm, Conour Doehrman (Filing No. 72-4), and final judgment was entered on April 21, 2014.
(Filing No. 72-5). The Condons obtained a default judgment on liability against Mr. Conour and
Conour Doehrman on November 18, 2013 (Filing No. 72-9) and a final judgment was entered on
July 24, 2014. (Filing No. 72-10). On June 2, 2014, Intervenors filed a Complaint in this action
(Filing No. 55) asserting that they have a security interest in the assets that are the subject matter
of this litigation and asked the Court to determine the existence and priority of Intervenors’ claims
to such funds. In their briefing on summary judgment, Intevernors attempted to raise a claim under
Ind. Code § 30-4-3-22(b) arguing they were granted an equitable lien in 1996 and 1999 when Mr.
Conour converted their trust funds. Three months after ACF filed its motion for summary
judgment, two months after the Intervenors filed their cross-motion for partial summary judgment,
and well after briefing on all of the summary judgment motions had concluded, Intevenors filed a
motion for leave to amend their complaint (Filing No. 88). The proposed amended complaint

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included, for the first time, an allegation that Intervenors had “statutory liens against all of the
assets of Mr. Conour and Conour’s law firm under Ind. Code 30-4-3-22(c).” The Court did not
permit the amendment because it was filed at such a late stage of the litigation. 1 In its Entry on
Cross Motions for Summary Judgment the Court declined to address the merits of the
equitable/statutory lien claims finding they were not adequately raised in the Intevernors’
Complaint. (Filing No. 119, at ECF p. 18.)
III. DISCUSSION
Intervenors argue that the Court dismissed their claims sua sponte based upon the
insufficiency of their Complaint. Contrary to Intervenors’ characterization of the Court’s actions,
the Court dismissed Intervenors’ claims in ruling on the cross-motions for summary judgment, not
on its own motion to dismiss. The Court’s finding that the Intervenors’ equitable/statutory lien
theory was waived is based upon the principle that a party cannot amend its complaint through
summary judgment arguments. See Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 412
(7th Cir. 2009) (finding that the district court did not err by concluding that alternative basis for
claims was waived by raising it for the first time during summary judgment proceedings); Grayson
v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002) (“[A] plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary judgment” (quotation omitted));
Shanahan v. City of Chi., 82 F.3d 776, 781 (7th Cir. 1996).
Intervenors attempted to introduce a new theory upon which they claimed an interest in the
contingency fees, if any, owed to Mr. Conour and the Conour Law Firm, LLC (“the Conour Firm”),
which the Court determined was not permitted. The Court’s ruling was based upon consideration
of the parties’ arguments in the summary judgment briefing. ACF, Ladendorf, and Mr. Devereux

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Intervenors do not challenge the Court’s denial of their Motion for Leave to file Amended Complaint.

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all argued that the Intervenors lacked standing to enforce the liens asserted in their Complaint. In
response, Intervenors attempted to change their theory of recovery to assert that they had an
equitable lien under Indiana statute. Considering these arguments, the Court found that Intervenors
did lack standing to enforce the liens set forth in their Complaint, and that this alternative theory
of recovery had not been properly asserted prior to the motion for summary judgment. Despite
the Intervenors’ assertions that an equitable lien theory is contained in their Complaint, the
allegations in their Complaint simply do not support this new theory. The Complaint specifically
claims that the Intervenors sought to enforce their judgments (one of which had not been obtained
at the time the Complaint was filed) 2 and the liens established by the government restitution order.
See Filing No. 55, at ECF p. 3 (“The attorney fees held by Defendants in this matter are subject to
the liens in favor of Intervenors established by the criminal Restitution Order.”) (emphasis added).
A plaintiff “pleads himself out of court when it would be necessary to contradict the complaint in
order to prevail on the merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).
Intervenors are asking the Court to disregard the theory specifically pled in their Complaint, and
instead consider a new theory. As explained above and in the Entry on the cross-motions for
summary judgment, the Court decided that it was not proper to “change horses in midstream” and
allow the Intervenors to pursue a new theory which contradicted the allegations in the Complaint.
See Zimmerman v. Bd. of Trustees of Ball State Univ., 940 F. Supp. 2d 875, 884 (S.D. Ind. 2013)
(“[T]he Court is mindful of the principle . . . that once a party chooses to take a certain position, it
‘cannot change horses in midstream.’”) (quoting Broaddus v. Shields, 665 F.3d 846, 854 (7th Cir.
2011)).

Intervenors do not challenge the Court’s determination that the Beals’ judgment had not yet become enforceable at
the time the Intervenors filed their Complaint.

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Even if the Court were to find that Intervenors properly asserted a claim under Ind. Code
§ 30-4-3-22(b), or permitted Intervenors to amend their Complaint to state such a claim, ACF
would still be entitled to summary judgment. Ind. Code § 30-4-3-22(b) establishes an equitable
lien in favor of a trust beneficiary whose trustee has comingled their funds with that of his own.
In instances where the funds have been comingled or converted and the fund or property cannot
be traced or identified, the beneficiary is entitled to a lien against the trustee’s individual property.
I.C. § 30-4-3-22(c). Intervenors assert that Mr. Conour, as trustee, comingled settlement funds
held in trust with his personal assets and the assets of his firm, which at the time of the conversions
was Conour Doherman Law Firm. See Filing No. 72-3; Filing No. 72-5; Filing No. 72-8; Filing
No. 72-10 (asserting claims and obtaining judgments against Conour Doherman). Accordingly,
Intervenors would only be granted an equitable lien against Mr. Conour’s individual property, not
that of either firm in which he had an interest. The property subject to ACF’s security interest in
this action is that of the Conour Firm, which ACF alleges includes contingency fees owed to Mr.
Conour as a partner of the Conour Firm. Intervenors have no interest in these assets because they
do not individually belong to Mr. Conour, nor can they be traced to the Conour Firm because it
did not exist in 1996 and 1999, the years of the conversions of Intervenors funds. Thus, the Court
concludes that Intervenors still would not prevail, had they brought a claim under Ind. Code § 304-3-22 in this action.
Based upon the allegations that were made in the Complaint, the Court determined that the
Intervenors’ claims against Mr. Conour and the Conour Firm did not have priority over ACF’s
interest, and thus have no interest relating to the property or transaction that is the subject of this
action. See Fed. R. Civ. Proc. 24(a). The outcome of this action will not, as a practical matter,
“impair or impede the [Intervenors’] ability to protect [their] interest,” and the existing parties do

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not have an obligation to represent that interest. Id. ACF’s enforcement of its security interest is
limited to the contingency fees; it is not seeking to collect on its debt from any other assets of Mr.
Conour or the Conour Firm. Because Intervenors have no interest in the property that is the subject
of this action, their claims were necessarily dismissed.
IV. CONCLUSION
Intervenors have not demonstrated that the Court committed a manifest error of law in
finding that their interests are subordinate to the perfected security interest held by ACF with
respect to the property at issue in this action. Therefore, Intervenors’ Motion to Reconsider (Filing
No. 121) is DENIED.
SO ORDERED.
Date: 2/24/2015
DISTRIBUTION:
Christopher Charles Hagenow
BLACKWELL, BURKE & RAMSEY, P.C.
[e-mail]
Austin L. McMullen
BRADLEY ARANT BOULT CUMMINGS, LLP
[e-mail]
Roger G. Jones
BRADLEY ARANT BOULT CUMMINGS, LLP
[e-mail]
Gregory L. Laker
COHEN & MALAD LLP
[e-mail]
Jeffrey Allen Hammond
COHEN & MALAD LLP
[e-mail]

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Mark C. Ladendorf
LADENDORF & LADENDORF
[e-mail]
Timothy Francis Devereux
LADENDORF & LADENDORF
[e-mail]
Debra H. Miller
MILLER & FISHER LLC
[e-mail]
James R. Fisher
MILLER & FISHER LLC
[e-mail]

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