ILNews

COA split on whether judgment on pleadings was proper

Back to TopCommentsE-mailPrintBookmark and Share

In a lawsuit against an attorney, law firm and the firm’s insurer, the Indiana Court of Appeals was divided in its ruling over whether the trial court correctly granted the insurer’s motion for judgment on the pleadings.

Jason Tye Myers filed a lawsuit against Charles R. Deets III for fraud, and named his former partner Edward L. Kennedy, law firm Deets & Kennedy, and Great American Insurance Group as parties. Myers hired Deets – who was deceased when the suit was filed – for a criminal matter and Deets didn’t return a portion of a retainer fee after Myers fired him in 2005. Myers filed his lawsuit, which claimed fraud and constructive fraud, in 2011. He believed Kennedy, the law firm and the insurer were liable for the debt.

Great American moved for judgment on the pleadings; Kennedy and the law firm moved for summary judgment. The trial court granted both motions following a hearing.

The appellate court affirmed summary judgment in favor of Kennedy and the law firm, finding Myers didn’t prove there was a genuine issue of material fact as to whether Deets and Kennedy were partners at any time relevant to Myers’ complaint. As a result, he’s unable to show that either Kennedy or the firm is liable for Kennedy’s alleged fraudulent conduct.

Judge Edward Najam and Carr Darden reversed the grant of Great American’s motion for judgment on the pleadings, holding that Myers’ complaint is sufficient to seek relief by way of a declaratory judgment. While his complaint doesn’t expressly seek a declaratory judgment on the question of insurance coverage, the assertion of a specific theory in a complaint isn’t required under notice pleading, wrote Najam in Jason Tye Myers v. Charles R. Deets III, Deets & Kennedy, and Great American Insurance Group, No. 79A02-1108-CT-77. Myers stated facts that would support a declaratory judgment action.

Judge Patricia Riley dissented on this point, writing that Myers’ complaint contemplates a direct action against the law firm, not a declaratory judgment. At no point does Myers try to seek a declaration that the insurance policy is in effect; instead he seeks reimbursement of his retainer fee. She doesn’t see any circumstances which would grant Myers relief.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

ADVERTISEMENT