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Justices rule on legal malpractice procedural issue

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An Indiana Supreme Court decision allows an Indianapolis attorney and a local law firm to raise a statute of limitations on legal malpractice claims against them.

In a nine-page ruling late Thursday in Joseph J. Reiswerg and Cohen Garelick & Glazier v. Pam Statom, 49S02-0906-CV-280, the court tackled a procedural issue that hadn’t specifically come up in Indiana before and found in favor of both the contract attorney and Indianapolis law firm.

The case stems from a medical malpractice action that Pam Statom raised following a 1998 sinus surgery at the Veterans Affairs hospital in Indianapolis. Several problems surfaced because of that procedure and Statom retained Joseph Reiswerg, who shared office space with Cohen Garelick & Glazier and worked as a contract attorney with the law firm. He filed a tort claim notice about her intent to sue for medical malpractice, but the VA determined it wasn’t received within the two-year statute of limitations period and denied the claim as untimely. Reiswerg withdrew as the woman’s attorney after filing a notice of appeal in federal court about the administrative rejection of her claim, and Statom proceeded pro se but eventually lost in April 2004 on grounds that the suit was time-barred.

In November 2005, Statom filed this legal malpractice claim in Marion Superior Court on grounds that Reiswerg failed to timely file a federal tort claims notice, as well as fraud and constructive fraud claims against both defendants. The attorney and the firm relied on the statute of limitations as affirmative defenses in the legal malpractice case.

After a year of discovery, Statom moved for partial summary judgment and sought a ruling that both Reiswerg and CG&G were “negligent as a matter of law.” Neither defendant raised the statute of limitations in response to her partial summary judgment, arguing later that it wasn’t required because of her partial motion that didn’t address their legal malpractice liability. Both the firm and attorney later moved for summary judgment because of the statute of limitations expiration, and Statom moved to strike them. Marion Superior Judge David Shaheed granted Statom’s motion to strike for both, but certified his judgment for appeal.

In a December 2008 ruling, the Court of Appeals affirmed the trial court’s striking of Reiswerg’s motion for summary judgment but reversed the order striking a summary judgment order from CG&G. The appellate panel in March 2009 reviewed its decision on rehearing but affirmed what it had previously ruled, and the Supreme Court later granted transfer on the novel issue.

Justices reversed the trial court and held that a party doesn’t waive an affirmative defense by failing to raise it in response to a partial summary judgment motion that wouldn’t dispose of the main liability issue of the case. That means both Reiswerg and CG&G can raise that defense on remand.

“No Indiana case has heretofore addressed this issue in the context of a motion for partial summary judgment on less than liability,” Justice Theodore Boehm wrote. “However, decisions from other jurisdictions are consistent with our view. Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage.”

The court found Statom didn’t move for full or partial summary judgment on liability, and so the full liability issue wasn’t included in the judgment in her favor.

“She cannot now claim a victory greater than she sought and greater than she placed in issue,” Justice Boehm wrote.

Justice Robert D. Rucker, joined by Justice Frank Sullivan, issued a separate opinion that concurred and dissented in part, saying the trial court correctly struck Reiswerg’s motion for summary judgment. They dissented in regard to Reiswerg’s motion, but concurred in relation to the law firm motion.

Justice Rucker wrote that the majority found Reiswerg didn’t waive his affirmative defense because he wasn’t obligated to raise it at that point.

“This is so, according to the majority, because Statom’s motion sought resolution only on ‘some but not all elements of liability…’ This assertion is not an easy lift for the majority. Indeed the majority labors mightily to support its position. But this case is not complicated,” he wrote.

“Under this State’s long-standing and settled law, Reiswerg could not resurrect his statute of limitations defense in his own motion for summary judgment,” Justice Rucker continued. “The defense had been waived. Easy case. The trial court properly struck Reiswerg’s summary judgment motion, and its decision should be affirmed.”
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. 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

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