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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT