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COA split on whether judgment on pleadings was proper

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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.

 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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