Ashenden Brief of March 22, 2000
Ashenden, on Appeal
(8) Summary of Argument
The appellants herein adopt the Summary of Argument of the appellants in Society of Lloyd's v. Ashenden, No. 99-3195, now pending in this court and with which these appeals have been consolidated, and add the following:
In its motion for judgment on the pleadings Lloyd's cited and relied upon numerous facts which were not only not contained within the pleadings of this case, but were not even in the record of this case. Apart from the bare allegations in the pleadings that it had judgments in certain amounts against these appellants, Lloyd's relied entirely on the record of the Ashenden case, which had already gone to judgment. Because of this, the court should have converted the motion to one for summary judgment. By not doing so, the court deprived these appellants of the ability to make the record they wished to make and bound them to the record of a case in which they were not parties. The consolidation of these appeals with the Ashenden appeal does not cure this error because these defendants would have enlarged upon the record made in the Ashenden case, based on what they had learned about the district court's erroneous factual assumptions, from its judgment and its denial of the Ashendens' motion to alter or amend judgment.
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