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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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