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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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!!!

  2. 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?

  3. 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?

  4. 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.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT