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)
Showing posts with label statute of limitations. Show all posts
Showing posts with label statute of limitations. Show all posts
Tuesday, November 30, 2010
Texas: Lawyer Sued for Failing to Appeal for a Client after JNOV
Link for the opinion – the link to the opinion cannot be obtained from the state court website but can be viewed here: http://www.leagle.com/xmlResult.aspx?xmldoc=19901052786SW2d266_11007.xml&docbase=CSLWAR2-1986-2006
In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.
The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.
Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.
This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.
In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.
The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.
Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.
This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.
Wednesday, September 8, 2010
Delaware: Attorneys to Face Consequences for Real Estate Error
Plaintiff, Regina Shea filed a malpractice suit against defendant lawyer Raymond D. Armstrong of Delcollo & Werb P.A.. The Superior Court of the State of Delaware in and for New Castle County granted the lawyers' motion to dismiss, holding that the complaint was time-barred. The client appealed.
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
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