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Dissent: new issues can be raised in response

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Parties shouldn't be allowed to raise arguments for the first time in response to a rehearing petition before an appellate court, an Indiana Court of Appeals judge wrote in disagreeing with two of her colleagues.

But the other two judges allowed that to happen in granting a rehearing request in U.S. Bank v. Integrity Land Title Corp, No. 17A03-0812-CV-577, a DeKalb Superior case the appellate court had decided in a June 16 opinion.

The case involves a real estate transaction in early 2006 where Integrity Land Title prepared a title commitment indicating a title search, performed by a subcontractor, had uncovered no judgments against the property seller. The buyer's lender relied on that title commitment and approved a mortgage loan, and Integrity received payment for doing the closing and title search. U.S. Bank eventually got assigned the mortgage from the buyer's lender.

But in August 2006, a judgment lien owner that hadn't been identified by the title search by Integrity initiated a foreclosure action against the buyer and the lender, and U.S. Bank intervened to file a third-party complaint against Integrity because of the search. That complaint alleged that U.S. Bank's "pending loss is a direct and proximate result of negligent real estate closing and certification of title by (its mortgager), through its agent [Integrity]."

In February 2008, the trial court enforced and foreclosed the judgment lien and U.S. Bank later filed a motion for summary judgment against Integrity. Both parties began filing cross-motions, and in September 2008 the trial court denied U.S. Bank's summary judgment motion against Integrity.

The Court of Appeals ruled on the case June 16, reiterating the trial court's finding that Integrity wasn't a party to the policy and owed no contractual duty to U.S. Bank, even though the bank had argued alternative contract theories in its response to summary judgment motions. The panel at the time reversed the trial court's grant of summary judgment in favor of Integrity and remanded, but U.S. Bank later filed a petition for rehearing. In a response brief to that petition, Integrity raised new issues and U.S. Bank asked that part of the response be stricken because it should have been raised in a separate rehearing petition, rather than a response brief.

"U.S. Bank's contentions are well taken, but the interests of justice and judicial economy would be ill served if we were to turn a blind eye to Integrity's arguments, the correctness of which is apparent on the face of the record," Judge Terry Crone wrote, citing precedent that gives a court power to reconsider an order or ruling that isn't yet certified. "Consequently, we exercise our inherent authority to reconsider our original opinion and hereby vacate our reversal of summary judgment on U.S. Bank's contract claim. In other words, we affirm the trial court in all respects."

The judges also invited Integrity to renew any claims it may have in a transfer petition to the state's highest court, but in a four-page dissent Judge Melissa May disagreed with her fellow panel members.

"Our rules do not permit Integrity to raise the contract argument in what it characterizes as its 'response' to the tort argument U.S. Bank raised in its petition for rehearing," she wrote. "Moreover, allowing Integrity to do so in a brief in response to a petition for rehearing is unfair because it effectively deprives U.S. Bank of an opportunity to respond to the contract argument."

The Integrity response brief went outside the rule by raising contract-related matters U.S. Bank had not raised, and in effect it grants Integrity a rehearing it didn't timely request, Judge May found. The original opinion should stand, she said.

Citing her colleague's language in the majority decision, Judge May wrote, "I would decline to adopt the premise that if one litigant's argument 'appears correct,' that is enough to deprive the other litigant of any opportunity to respond to it. I have no authority that would permit such a result, and it is inconsistent with the essential structure of litigation to hold that if a party's initial argument appears convincing, we will not entertain the opponent's response."

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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