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 commend Joe for standing up to this tyrant attorney! You ask why? Well I’m one of David Steele victims. I was in desperate need of legal help to protect my child, David saw an opportunity, and he demanded I pay him $3000. Cash. As I received motions and orders from court he did nothing! After weeks of emails asking him to address the legal issues, he responded by saying he was “on vacation “and I should be so lucky to have “my attorney” reply. Finally after lie on top of lie I asked for a full refund, which he refused. He then sent me “bills” for things he never did, such as, his appearance in the case and later claimed he withdrew. He never filed one document / motion for my case! When I finally demanded he refund my money he then turn to threats which scared my family for our lives. It seem unreal we couldn’t believe this guy. I am now over $100,000 in debt digging out of the legal mess he caused my family. Later I was finally able to hire another law office. I met Joe and we worked diligently on my case. I soon learn Joe had a passion for helping people. As anyone who has been through a legal battle it is exhausting. Joe was always more than happy to help or address an issue. Joe was knowledgeable about all my concerns at the same time he was able to reduce the stress and anxieties of my case. He would stay late and come in early, he always went the extra mile to help in any way he could. I can only imagine what Joe and his family has been through, my prayers go out to him and all the victims.

  2. Steele did more than what is listed too. He purposely sought out to ruin me, calling potential employers and then lied about me alleging all kinds of things including kidnapping. None of his allegations were true. If you are in need of an ethical and very knowledgeable family law paralegal, perhaps someone could post their contact information. Ethics cannot be purchased, either your paralegal has them or they do not.

  3. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  4. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  5. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise