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Justices rule on legal malpractice procedural issue

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An Indiana Supreme Court decision allows an Indianapolis attorney and a local law firm to raise a statute of limitations on legal malpractice claims against them.

In a nine-page ruling late Thursday in Joseph J. Reiswerg and Cohen Garelick & Glazier v. Pam Statom, 49S02-0906-CV-280, the court tackled a procedural issue that hadn’t specifically come up in Indiana before and found in favor of both the contract attorney and Indianapolis law firm.

The case stems from a medical malpractice action that Pam Statom raised following a 1998 sinus surgery at the Veterans Affairs hospital in Indianapolis. Several problems surfaced because of that procedure and Statom retained Joseph Reiswerg, who shared office space with Cohen Garelick & Glazier and worked as a contract attorney with the law firm. He filed a tort claim notice about her intent to sue for medical malpractice, but the VA determined it wasn’t received within the two-year statute of limitations period and denied the claim as untimely. Reiswerg withdrew as the woman’s attorney after filing a notice of appeal in federal court about the administrative rejection of her claim, and Statom proceeded pro se but eventually lost in April 2004 on grounds that the suit was time-barred.

In November 2005, Statom filed this legal malpractice claim in Marion Superior Court on grounds that Reiswerg failed to timely file a federal tort claims notice, as well as fraud and constructive fraud claims against both defendants. The attorney and the firm relied on the statute of limitations as affirmative defenses in the legal malpractice case.

After a year of discovery, Statom moved for partial summary judgment and sought a ruling that both Reiswerg and CG&G were “negligent as a matter of law.” Neither defendant raised the statute of limitations in response to her partial summary judgment, arguing later that it wasn’t required because of her partial motion that didn’t address their legal malpractice liability. Both the firm and attorney later moved for summary judgment because of the statute of limitations expiration, and Statom moved to strike them. Marion Superior Judge David Shaheed granted Statom’s motion to strike for both, but certified his judgment for appeal.

In a December 2008 ruling, the Court of Appeals affirmed the trial court’s striking of Reiswerg’s motion for summary judgment but reversed the order striking a summary judgment order from CG&G. The appellate panel in March 2009 reviewed its decision on rehearing but affirmed what it had previously ruled, and the Supreme Court later granted transfer on the novel issue.

Justices reversed the trial court and held that a party doesn’t waive an affirmative defense by failing to raise it in response to a partial summary judgment motion that wouldn’t dispose of the main liability issue of the case. That means both Reiswerg and CG&G can raise that defense on remand.

“No Indiana case has heretofore addressed this issue in the context of a motion for partial summary judgment on less than liability,” Justice Theodore Boehm wrote. “However, decisions from other jurisdictions are consistent with our view. Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage.”

The court found Statom didn’t move for full or partial summary judgment on liability, and so the full liability issue wasn’t included in the judgment in her favor.

“She cannot now claim a victory greater than she sought and greater than she placed in issue,” Justice Boehm wrote.

Justice Robert D. Rucker, joined by Justice Frank Sullivan, issued a separate opinion that concurred and dissented in part, saying the trial court correctly struck Reiswerg’s motion for summary judgment. They dissented in regard to Reiswerg’s motion, but concurred in relation to the law firm motion.

Justice Rucker wrote that the majority found Reiswerg didn’t waive his affirmative defense because he wasn’t obligated to raise it at that point.

“This is so, according to the majority, because Statom’s motion sought resolution only on ‘some but not all elements of liability…’ This assertion is not an easy lift for the majority. Indeed the majority labors mightily to support its position. But this case is not complicated,” he wrote.

“Under this State’s long-standing and settled law, Reiswerg could not resurrect his statute of limitations defense in his own motion for summary judgment,” Justice Rucker continued. “The defense had been waived. Easy case. The trial court properly struck Reiswerg’s summary judgment motion, and its decision should be affirmed.”
 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

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  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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