Indiana: Lawyer waived affirmative defenses by failing to assert them in response to motion for summary judgment on legal malpractice/ negligence suit

Link for opinion: http://www.leagle.com/xm/Result.aspx?xmldoc=In+INCO+20100506224.xml&docbase=CSLWAR3-2007-CURR


In Reiswerg v. Statom, 926 N.E.2d 26 (Ind. 2010), the Indiana Supreme Court held that a party is not obligated to waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that is not dispositive to the issue of liability.

The Indiana Supreme Court affirmed that the trial court properly struck Reiswerg’s summary judgment on the basis that he waived his statute of limitations defense, by failing to raise it in response to Statom’s motion for partial judgment, based on Ind. Trial Rule 56 and Ind. Trial Rule 8(c). Dissenting to PART I of the majority opinion. Concurring to results of PART II.

The lawyer also alleged fraud an constructive fraud. Join App. at 46-48. Both defendant and Plaintiff were granted in favor of the court. All claims were not raised and identified only pieces.

This case teaches the importance of lawyer’s liability of being legally obligated and accountable. Black Laws Dictionary 997 (9th ed. 2009). This case also teaches that to hold an attorney accountable for negligence in the practice of law a plaintiff must demonstrate attorney breach of duty, employment of attorney to client, proximate cause, and damages. Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008)