Reiswerg v. Statom
| Citation | 926 N.E.2d 26 |
| Decision Date | 06 May 2010 |
| Docket Number | No. 49S02-0906-CV-280.,49S02-0906-CV-280. |
| Parties | Joseph J. REISWERG and Cohen Garelick & Glazier, Appellants (Defendants below),v.Pam STATOM, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
David T. Kasper, Julia Blackwell Gelinas, Maggie L. Smith, Lucy R. Dollens, Darren A. Craig, Indianapolis, IN, Attorneys for Appellant Joseph J. Reiswerg.
Michael E. Brown, Eric D. Johnson, Indianapolis, IN, Attorneys for Appellant Cohen Garelick & Glazier.
Todd J. Kaiser, John K. Henning, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0801-CV-49
In this interlocutory appeal, Joseph Reiswerg and the law firm of Cohen Garelick and Grazier filed motions for summary judgment asserting an affirmative defense of statute of limitations to Pam Statom's attorney malpractice lawsuit against them. The trial court granted Statom's motion to strike both motions, stating that Reiswerg and the law firm had waived the statute of limitations defense by failing to raise it in response to Statom's motion for partial summary judgment against them. We reverse the trial court and hold that a party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability.
In December 1998, Pam Statom underwent sinus surgery at the Veterans Affairs hospital in Indianapolis. According to Statom, this surgery resulted in several problems, and she retained attorney Joseph Reiswerg to pursue a malpractice action against the Department of Veterans Affairs (VA). Reiswerg shared office space with Cohen Garelick and Grazier (CGG) and worked as a contract attorney with the law firm. Reiswerg filed a Tort Claims Notice for Statom notifying the VA of her intent to sue for malpractice. According to Reiswerg, he filed the notice in November 2000, within the two-year period for filing claims against the VA.1 He did not send the notice by certified mail and did not verify that the VA had received it before the period expired. The VA determined that its stamp showed the notice was received in February 2001, and denied the claim as untimely.
Reiswerg withdrew as Statom's attorney after filing a notice of Statom's appeal to federal district court pursuant to 28 U.S.C. § 1346(a)(2) (2004), seeking review of the VA's administrative rejection of Statom's claim. Statom proceeded pro se in federal court, and in April 2004 summary judgment was entered in favor of the VA on the ground that Statom's claim was time-barred. In November 2005 Statom brought this action in Marion Superior Court against Reiswerg and CGG, alleging legal malpractice in Reiswerg's failure to file a timely federal tort claims notice, and also asserting fraud and constructive fraud claims against both defendants. The answers filed by Reiswerg and CGG to Statom's complaint each asserted as an affirmative defense that Statom did not file her lawsuit within the statute of limitations for filing claims of legal malpractice.
After almost a year of discovery, on the November 20, 2006 deadline for dispositive motions, Statom moved for partial summary judgment, seeking a ruling that CGG and Reiswerg were “negligent as a matter of law.” 2 Neither Reiswerg nor CGG raised the statute of limitations in response to Statom's motion for partial summary judgment.
The court found fact issues to preclude summary judgment as to CGG but granted the requested partial summary judgment as to Reiswerg. The trial court ruled that Reiswerg was “negligent as a matter of law” and that he “breached the standard of care in his representation of Ms. Statom and this breach caused [her] harm in that she lost the opportunity to pursue a meritorious medical malpractice claim.” Reiswerg sought certification of the partial summary judgment order for discretionary interlocutory appeal. The trial court certified the partial summary judgment order for interlocutory appeal but the Court of Appeals denied Reiswerg's request for leave to appeal.
In July 2007, Reiswerg and CGG moved for summary judgment on the ground that the statute of limitations for legal malpractice had expired before Statom filed her complaint. Statom moved to strike both motions, arguing that the motions were filed after the deadline for filing summary judgment motions and also that Reiswerg and CGG had waived this affirmative defense by failing to assert it in response to Statom's motion for partial summary judgment. The trial court granted the motion to strike as to both defendants. Both defendants sought and received trial court certification of that order for interlocutory appeal, and the Court of Appeals accepted this appeal. The trial court also certified its partial summary judgment order against Reiswerg as a final judgment for appeal under Trial Rule 54(B).
The Court of Appeals first addressed the appealability of the partial summary judgment order. The court held that the trial court erred in certifying the order as a final judgment under Trial Rule 54(B). That rule permits appeals of final judgments as to one or more, but less than all, of the “claims” in an “action” if the trial court finds no just reason for delay. The ruling on the plaintiff's motion for partial summary judgment as to Reiswerg's negligence left causation and damages undecided and therefore did not address all issues as to the claim against Reiswerg. Reiswerg's attempt to appeal this order was therefore dismissed as not properly appealable under Trial Rule 54(B), and not appealable as a discretionary interlocutory appeal because it was not certified under Appellate Rule 14. Reiswerg v. Statom, 897 N.E.2d 490, 496 (Ind.Ct.App.2008) ().
The Court of Appeals then addressed the trial court's order striking the defendants' summary judgment motions. The Court of Appeals affirmed that order as to Reiswerg and reversed it as to CGG. Id. at 500. The Court of Appeals agreed with the trial court that Reiswerg had waived his statute of limitations defense by failing to raise it in response to the plaintiff's motion for partial summary judgment. As to CGG, however, the Court of Appeals held that because the trial court denied the plaintiff's motion for partial summary judgment as to CGG's negligence, there was no waiver of CGG's defense based on the statute of limitations. We granted transfer.
For the reasons explained below, we agree with the Court of Appeals that the only issues presented in this appeal are those raised by the trial court's order certified for interlocutory appeal. These are whether the trial court erred when it granted Statom's motion to strike the defendants' motions for summary judgment on the ground that the defendants had waived the statute of limitations affirmative defense by failing to raise it in response to Statom's motion for partial summary judgment on the negligence issue. 3
In many circumstances, a trial court has broad discretion when it rules on a motion to strike. In re Fitz, 778 N.E.2d 432, 436 (Ind.Ct.App.2002). Here, however, the motion to strike was based on a pure question of law-whether Reiswerg and CGG had waived their affirmative defenses by failing to raise them in response to Statom's motion for partial summary judgment. As such, we review the trial court's decision de novo.
Statom moved for partial summary judgment pursuant to Indiana Trial Rule 56, which allows a party to move for summary judgment on “all or any part” of a claim. Statom's motion for partial summary judgment asked the trial court for a determination that Reiswerg and CGG were “negligent as a matter of law” and that “their negligence caused harm to Statom.” The elements of an action for legal malpractice are: “(1) employment of an attorney, which creates a duty to the client; (2) failure of the attorney to exercise ordinary skill and knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind.Ct.App.2008) (quoting Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind.Ct.App.2006)). Proximate cause embraces both factual causation and scope of liability. Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind.2009); see generally Restatement (Third) of Torts ch. 6, special note on proximate cause (2010). Statom's motion for partial summary judgment sought to eliminate breach and factual causation, but it did not seek to resolve all issues bearing on liability. A number of these issues remained open, including comparative fault as between the plaintiff and the defendant and as among defendants, scope of liability, and any affirmative defenses.
Statom's motion sought partial summary judgment on the issue of negligence, “leaving damages and allocation of fault” for trial. Statom's motion for partial summary judgment did not mention, much less negate Reiswerg's affirmative defense of statute of limitations, and did not seek to establish liability. A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it. The defendants were under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment that Statom presented. A non-movant is not required to address a particular element of a claim unless the moving party has first addressed and presented evidence on that element. Jarboe v. Landmark Community Newspapers, Inc., 644 N.E.2d 118, 123 (Ind.1994); see also Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind.1995) (). These decisions addressed issues on which the moving party had the...
To continue reading
Request your trial
-
Dotlich v. Tucker Hester, LLC
...knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff.” Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind.2010). Generally, for an action to accrue, it is not necessary that the full extent of the damage be known or even ascertainable, ......
-
Mundia v. Drendall Law Office, P.C.
...knowledge (breach of the duty); and (3) that such negligence was the proximate cause of (4) damage to the plaintiff." Reiswerg v. Statom , 926 N.E.2d 26, 30 (Ind. 2010) (internal quotation marks and citation omitted).[25] "To obtain summary judgment in Indiana, a moving party must demonstra......
-
B.N. v. Health & Hosp. Corp.
...remotely. But it is well settled that parties cannot raise an issue for the first time on transfer. See, e.g. , Reiswerg v. Statom , 926 N.E.2d 26, 30 n.3 (Ind. 2010). Nevertheless, we disagree with Eskenazi, as B.N. requested an in-person hearing by written motion that cited modified Rule ......
-
Smith v. Franklin Twp. Cmty. Sch. Corp.
...41 dismissals, we decline to make a sweeping determination here because this issue was not raised until transfer. Reiswerg v. Statom , 926 N.E.2d 26, 30 n.3 (Ind. 2010).2 We acknowledge that the School's motion to dismiss, which relied on an affidavit in support, should have been treated as......