ILNews

Dissent: new issues can be raised in response

Back to TopE-mailPrintBookmark and Share

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."

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

ADVERTISEMENT