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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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