INDIANA COURT OF APPEALS HOLDS ABSOLUTE PRIVILEGE EXISTS AGAINST SLANDER OF TITLE WHEN LIS PENDENS NOTICE PROPERLY FILED AND ARGUMENT NOT WAIVED UPON APPEAL

On January 11, 2019, the Indiana Court of Appeals held that the trial court properly denied appellant RCM Phoenix Partners LLC’s (“Phoenix”) slander of title claim, even though the appellee 2007 East Meadows, LP (“Meadows”) failed to raise a claim of absolute privilege at the trial court level and raised it for the first time on appeal.

Due to complications surrounding an assignment of a purchase agreement and assumption of an existing mortgage of an apartment community (“Property”) to Meadows, the parties were unable to close on the Property. Meadows sued Phoenix in Texas, alleging that Phoenix breached the purchase agreement and committed fraud. Meadows filed a lis pendens notice against the property of the pending Texas lawsuit. The trial court in Texas dismissed the lawsuit for lack of personal jurisdiction, but a second suit in Indiana, where Phoenix countersued and added a slander of title claim to its complaint continued. In Meadows’ answer, it did not assert that the lis pendens notice was privileged. Meadows first raised the claim of absolute privilege upon Phoenix’s appeal of a trial court decision that found in favor of Phoenix’s claim for retention of the earnest money but found in favor of Meadows for the slander of title claim.

The Court of Appeals noted that while the general rule is that an argument or issue raised for the first time on appeal is waived and thus ineligible for appellate review, the trend in recent Indiana Supreme Court cases is to allow an appellee seeking affirmance of a trial court’s judgment to defend the trial court’s ruling on any basis, including with arguments not raised at trial. Here, because Meadows was the appellee and sought an affirmance of the trial court’s decision to deny the slander of title claim, the Court of Appeals held that Meadows had not waived the right to argue that it had absolute privilege from a slander of title claim.

The Court of Appeals went on to hold that Meadows’ lis pendens notice was absolutely privileged as a matter of law because (1) Indiana law required Meadows to file a lis pendens notice on the property because it had filed a lawsuit regarding its interest in the property; (2) Meadows properly filed the lis pendens notice; and (3) statements made in a properly filed lis pendens notice are absolutely privileged and defendants who have filed such a notice may not be held liable for slander of title.

 

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

The statements contained here are matters of opinion for general information purposes only and should not be considered by anyone as forming an attorney client relationship or advice for any particular legal matter of the reader. All readers should obtain legal advice for any specific legal matters.