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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. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. 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?

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