Firm must defend deceased lawyer’s ‘inflammatory’ counterclaim

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Litigation that has outlived an attorney who filed a counterclaim accusing a northwest Indiana construction company of racketeering, among other things, still could cost the late lawyer’s former firm.

Judge Michael Barnes authored a 46-page opinion that reversed in part, affirmed in part and remanded multiple rulings of Jasper Circuit Judge John D. Potter in The Estate of Richard A. Mayer, and Spangler, Jennings & Dougherty v. Lax, Inc., and David Lasco, 37A03-1207-PL-323. Original litigation between the parties dates to the 1990s.

Attorney Richard A. Mayer died in 2008, but he had filed a claim against Lax Inc. and David Lasco that resulted in Lax and Lasco claiming defamation, abuse of process, malicious prosecution, tortious interference with a contract and tortious interference with a business relationship against Mayer and his former law firm. Lax and Lasco also claimed negligent supervision and/or retention of Mayer by his firm at the time.

The trial court granted the estate summary judgment on the defamation and malicious prosecution claims and denied relief from the other claims. Mayer’s former firm, Spangler, Jennings & Dougherty, were denied summary judgment on those claims at the trial court.

While the panel ruled in favor of the estate and the law firm on most claims, it found some contained genuine issues of material fact for which summary judgment would be improper.

“We reverse the denial of summary judgment to the Estate and Spangler Jennings on the claims for negligent supervision and/or retention, tortious interference with a business relationship, and tortious interference with a contract, and direct that summary judgment be entered in the Estate’s and Spangler Jennings’s favor on those claims,” Barnes wrote.

“We reverse the denial of summary judgment to Spangler Jennings on the defamation claim and direct that summary judgment be entered in its favor on that claim. We also reverse the denial of summary judgment to the Estate regarding Lax and Lasco’s seeking of punitive damages against it and direct that summary judgment be entered in favor of the Estate on that claim. We affirm the granting of summary judgment in the Estate’s favor on the defamation and malicious prosecution claims,” the court held.

“We affirm the denial of summary judgment on the malicious prosecution claim against Spangler Jennings and the denial of summary judgment on the abuse of process claim as to both the Estate and Spangler Jennings. We also affirm the denial of summary judgment in favor of Spangler Jennings on the punitive damages issue. We remand for further proceedings consistent with this opinion.”

The opinion joined by judges Mark Bailey and Edward Najam held that absolute privilege covered statements Mayer made in his counterclaim, but that principle doesn’t preclude the claims of malicious prosecution and abuse of process.

The court also found authority from multiple states that helped shape its holding on liability of a firm for actions of an agent who since has died, where laws forbid actions against the estate for certain claims including defamation.

“In light of the great weight of authority, and in effecting the policy favoring survival of actions when possible, we hold that termination of a cause of action against an alleged agent-tortfeasor because of death does not require termination of a cause of action against the agent’s principal. Such termination does not reflect upon the merits of the case. We see no indication in the Survival Statute that our legislature intended to permit employers or other principals to avoid liability for their employee or agent’s misconduct simply because of the employee or agent’s death.”

Barnes wrote that the trial court also erred in ruling that Lax and Lasco could attempt to recover punitive damages from Mayer’s estate.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues