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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT