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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. I need an experienced attorney to handle a breach of contract matter. Kindly respond for more details. Graham Young

  2. I thought the slurs were the least grave aspects of her misconduct, since they had nothing to do with her being on the bench. Why then do I suspect they were the focus? I find this a troubling trend. At least she was allowed to keep her law license.

  3. Section 6 of Article I of the Indiana Constitution is pretty clear and unequivocal: "Section 6. No money shall be drawn from the treasury for the benefit of any religious or theological institution."

  4. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  5. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

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