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FOR PUBLICATION

FILED
May 29 2012, 8:39 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: JASON T. MYERS Pendleton, Indiana

ATTORNEYS FOR APPELLEES: NICHOLAS C. DEETS Hovde Dassow & Deets LLC Indianapolis, Indiana DINA M. COX KAMEELAH SHAHEED-DIALLO Lewis Wagner, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JASON TYE MYERS, ) ) Appellant-Plaintiff, ) ) vs. ) ) CHARLES R. DEETS III, DEETS & KENNEDY, ) and GREAT AMERICAN INSURANCE GROUP, ) ) Appellees-Defendants. )

No. 79A02-1108-CT-771

APPEAL FROM THE TIPPECANOE CIRCUIT COURT The Honorable Donald L. Daniel, Judge Cause No. 79C01-1101-CT-8

May 29, 2012

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Jason Tye Myers filed a complaint against Charles R. Deets, III, ("Charles"), Edward L. Kennedy ("Edward"), Deets & Kennedy ("the law firm"), and Great American Insurance Group ("Great American"). Myers alleged that Charles, who was deceased at the time the complaint was filed, owed Myers money related to Charles' brief representation of Myers in a criminal matter in 2004. And Myers alleged that Edward was a business partner of Charles' and was, therefore, liable for the debt. Finally, Myers alleged that Great American insured Charles and the law firm and was, therefore, also liable for the debt. Great American moved for judgment on the pleadings, and Edward and the law firm moved for summary judgment. The trial court granted both of those motions following a hearing. Myers appeals and alleges that the trial court erred when it granted those motions. We affirm in part, reverse in part, and remand for further proceedings. FACTS AND PROCEDURAL HISTORY From September 1, 2004, until February 28, 2005, Charles represented Myers in a criminal matter. Myers paid Charles a $5000 retainer.1 After Myers fired Charles, Myers believed that he was owed some portion of the retainer, but Charles did not refund Myers any money. On January 31, 2011, Myers filed a complaint against Charles, Edward, the law firm, and Great American "for redress of damages resulting from the tort[i]ous conduct of [Charles], amounting to the common law torts of fraud and constructive fraud, and

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The evidence is conflicting whether Myers paid the full amount of the retainer.

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attorney deceit[.]" Appellee's App. at 7. Myers sought compensatory damages, treble damages, and punitive damages. In his complaint, Myers set out facts alleging that Charles owed him money, that Charles and Edward were partners, and that Great American insured Charles and the law firm. Great American moved for judgment on the pleadings, arguing that it did not have a liability policy in effect with Charles or the law firm at any time relevant to the facts set out in the complaint. In addition, Great American argued that Myers was barred from bringing a direct action against an insurer. Edward and the law firm filed a motion for summary judgment alleging, in relevant part, that Myers' legal malpractice claim was barred by the statute of limitations. In addition, Edward and the law firm alleged that to the extent Myers alleged fraud, there were no genuine questions of material fact precluding summary judgment in favor of Edward and the law firm on that issue. Following a hearing, the trial court granted both motions. This appeal ensued. DISCUSSION AND DECISION Judgment on the Pleadings Myers first contends that the trial court erred when it entered judgment on the pleadings in favor of Great American. We review de novo a trial court's ruling on a Rule 12(C) motion for judgment on the pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). We accept as true the well-pleaded material facts alleged in the complaint, and base our ruling solely on the pleadings. Id. A Rule 12(C) motion for judgment on the pleadings is to be granted only where it is clear from the face of the complaint that under no circumstances could relief be granted. Id. (citation omitted).
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In support of its motion for judgment on the pleadings, Great American asserted three arguments: (1) that it did not insure either Charles or the law firm at the time of the alleged misconduct; (2) that its policy specifically excludes the intentional conduct alleged in the complaint; and (3) that Myers is barred from bringing a direct action against Great American. Accepting as true, as we must, Myers' allegation in his complaint that Charles and the law firm were covered by professional liability insurance policies "at the time the actions complained of were predicated and consummated," judgment on the pleadings is not warranted on the assertion in the answer that no such coverage in fact existed at the time of the alleged malpractice. Appellee's App. at 14. Likewise, judgment is not warranted on the assertion that the policy excluded the alleged conduct. While Great American attached copies of insurance policies to its answer, in moving for judgment on the pleadings Great American admitted for purposes of the motion "the untruth of [its] own allegations[.]"2 Midwest Psychological Center, Inc. v. Indiana Dept. of Admin., 959 N.E.2d 896, 902 (Ind. Ct. App. 2011) (citation omitted); 1A William E. Harvey, Indiana Practice

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