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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. 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

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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