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COA: attorney's statement binding

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The Indiana Court of Appeals affirmed partial summary judgment for Noble Roman’s Inc. in-store franchisees’ claim for constructive fraud because the franchisees’ then-attorney admitted that they were only pleading actual fraud against the company and that admission is binding.

In Kari Heyser, et al. v. Noble Roman's, Inc., et al., No. 29A04-1002-PL-71, Kari Heyser and other franchisees of Noble Roman’s asserted fraud and other claims against the pizza company and banks in relation to the franchisees’ agreements to open restaurants that subsequently failed.

At a March 25, 2009, hearing, the trial court granted the banks’ motion to dismiss. At that hearing, the franchisees’ then-counsel told the court “We have not plead constructive fraud.”

Noble Roman’s later filed a motion for partial summary judgment, stating that the franchisees weren’t alleging constructive fraud, but actual fraud, and many of the alleged fraud statements in the franchisees’ complaint and amendments didn’t qualify as actual fraud. The franchisees’ filed a response asserting both actual and constructive fraud.

In September 2009, the trial court granted Noble Roman’s motion, finding the attorney’s statement at the March 2009 hearing regarding constructive fraud was binding and the franchisees are estopped from asserting they plead constructive fraud in their complaint.

The Court of Appeals agreed with the trial court that the franchisees’ former attorney’s statement was binding, citing several cases including Hockett v. Breunig, 526 N.E.2d 995, 998 (Ind. Ct. App. 1988).

On the record, the attorney unequivocally stated the franchisees’ fraud claims against the banks were based solely on allegedly fraudulent representations by Noble Roman’s, with whom the banks allegedly acted in conspiracy; and the franchisees were alleging actual fraud, not constructive fraud.

“Thus, the Franchisees’ then counsel admitted that the Franchisees were only pleading actual fraud against Noble Roman’s, who was the only defendant that allegedly made fraudulent statements. That admission was binding upon the Franchisees throughout the lawsuit,” wrote Senior Judge John Sharpnack.

The appellate court also remanded the cause for further proceedings.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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