RCM Phx. Partners, LLC v. 2007 E. Meadows, LP

• Decision Date: 11 January 2019
• Docket Number: Court of Appeals Case No. 18A-PL-1355
• Parties: RCM PHOENIX PARTNERS, LLC, Appellant-Plaintiff, v. 2007 EAST MEADOWS, LP, Appellee-Defendant.
• Court: Indiana Appellate Court

118 N.E.3d 756

RCM PHOENIX PARTNERS, LLC, Appellant-Plaintiff,

v.2007 EAST MEADOWS, LP, Appellee-Defendant.

Court of Appeals Case No. 18A-PL-1355

Court of Appeals of Indiana.

FILED January 11, 2019

Attorneys for Appellant: F. Anthony Paganelli, Thomas D. Perkins, Stephanie L. Grass, Paganelli Law Group, Indianapolis, Indiana

Attorneys for Appellee: Stephen J. Peters, David I. Rubin, Plunkett Cooney, P.C., Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] This case involves a ten-year-old lawsuit arising from a real estate transaction that did not close. The seller was appellant,

RCM Phoenix Partners, LLC ("Phoenix"), and the potential buyer was appellee, 2007 East Meadows, LP ("Meadows"). Phoenix sued Meadows for, among other things,¹ slander of title based on the filing of a lis pendens notice and resulting damages. Phoenix appeals from the trial court decision denying its slander of title claim.

[2] We affirm.

Issues

[3] Phoenix raises two issues on appeal which we restate as follows:

1. Whether Meadows waived its claim of absolute privilege regarding its lis pendens notice by raising it for the first time on appeal.

2. Whether the trial court erred in denying Phoenix's slander of title claim.

Facts and Procedural History

[4] In July of 2007, Phoenix entered into a written Purchase and Sale Agreement ("Purchase Agreement") with Eureka Holdings Acquisitions, LLP ("Eureka"), under which Eureka would purchase an apartment community in Indianapolis ("the Property") from the owner/seller, Phoenix, for $9.05 million. In September of 2007, Eureka assigned the Purchase Agreement to Meadows. As Eureka's assignee, Meadows was required to pay the purchase price through a combination of cash at closing and assumption of Phoenix's existing mortgage on the Property with Wachovia Bank ("Wachovia").

[5] Because Meadows experienced delays in obtaining approval from Wachovia for Meadows to assume the mortgage on the Property, the parties agreed to several extensions on the closing date specified in the Purchase Agreement. Meanwhile, in December of 2007, the Indiana Housing Authority ("IHA") began an enforcement proceeding against Phoenix regarding the condition of the apartments located on the Property. In early-to-mid December of 2007, Paul Morris ("Morris"), a co-owner of the Property, informed Harris Block ("Block"), an employee of Meadows, about the IHA civil enforcement action.

[6] By January of 2008, Wachovia still had not approved Meadows to assume the mortgage on the Property. Meadows requested from Phoenix another extension of time on the closing date, but Phoenix denied that request. On January 22, 2008, Meadows filed a lawsuit in Texas,² alleging Phoenix breached the Purchase Agreement and committed fraud, based on the pending enforcement action on the Property. On January 25, 2008, Meadows filed in Texas its first lis pendens notice in which it gave notice of the pending Texas lawsuit related to the Property.

[7] On July 31, 2008, Phoenix filed a lawsuit in Indiana in which it claimed Meadows breached the Purchase Agreement and, therefore, Phoenix was entitled to keep the earnest money deposit made by Meadows. That lawsuit was subsequently stayed pending the outcome of the lawsuit in Texas. On August 15, 2008, Meadows filed in the Indiana court an amended lis pendens notice of both the pending Texas and Indiana lawsuits.

[8] On April 14, 2010, the Court of Appeals of Texas affirmed the Texas trial court's dismissal of Meadows' lawsuit for lack of personal jurisdiction over Phoenix. 2007 East Meadows , 310 S.W.3d at 208-09. In July 2011, Meadows moved to lift the stay in the Indiana case and that motion was granted. On August 15, 2011, Meadows filed its answer and counter-claims against Phoenix for breach of contract and fraud but did not raise any affirmative defenses. On September 17, 2012, Phoenix filed a supplemental complaint adding a claim against Meadows for slander of title and the resulting damages. On October 17, 2012, Meadows filed its answer to the supplemental complaint and also raised its counter-claims for breach of contract and fraud and raised seven affirmative defenses—none of which alleged its lis pendens notice was privileged as a matter of law. Appellant's App., Vol. II, at 238-39.

[9] On December 6, 2013, after learning that Phoenix was in negotiations to sell the Property to a third party, Meadows filed its third amended lis pendens notice regarding the pending Indiana case. On March 31, 2014, both parties moved for summary judgment as to Meadows' counter-claims for breach of contract and fraud. In an order dated June 26, 2014, the trial court granted summary judgment in favor of Phoenix and dissolved Meadows' pending lis pendens notice. Appealed Order at 7, Finding of Fact 32; Tr. Vol. III at 70. Meadows appealed.

[10] In 2007 East Meadows, LP v. RCM Phoenix Partners, LLC , No. 49A05-1407-PL-300, 2016 WL 239040 (Ind. Ct. App. Jan. 20, 2016), trans. denied , a panel of this court affirmed the June 26, 2014, order granting Phoenix summary judgment on Meadows' counter-claims for breach of contract and fraud. On July 28, 2016, our Supreme Court denied transfer on that decision. 2007 East Meadows, LP v. RCM Phoenix Partners , LLC, 57 N.E.3d 816 (Ind. 2016). On remand, the trial court issued an order noting that the only remaining claims were Phoenix's claims for retainer of the earnest money and slander of title. Following a two-day bench trial, on May 14, 2018, the trial court entered an order in favor of Phoenix regarding its claim for retention of the earnest money but found in favor of Meadows regarding Phoenix's slander of title and damages claim. In doing so, the trial court issued findings of fact and conclusions of law. Regarding the slander of title claim, the trial court concluded that "[a]lthough Meadows made what eventually were found to be incorrect statements regarding Phoenix's ownership of the land in question, it did not do so maliciously and had a good faith basis for believing the statements were correct." Appealed Order at 12-13. Phoenix now appeals the denial of its slander of title claim.

Discussion and Decision

Standard of Review

[11] At the parties' requests, the trial court entered findings and conclusions pursuant to Indiana Trial Rule 52, and our standard of review in that situation is well settled:

First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions.

Estate of Kappel v. Kappel , 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012) (quotation marks and citations omitted). Moreover, "[w]e may affirm a judgment on any legal theory, whether or not relied upon by the trial court, so long as the trial court's findings are not clearly erroneous and support the theory adopted." Id. at 652 (citing Mitchell v. Mitchell , 695 N.E.2d 920, 923-24 (Ind. 1998) ).³

[12] And, because Phoenix did not prevail at trial on its slander of title claim, it appeals from a negative judgment.

A judgment entered against a party bearing the burden of proof is a negative judgment. Smith v. Dermatology Assocs. of Fort Wayne , 977 N.E.2d 1, 4 (Ind. Ct. App. 2012). On appeal from a negative judgment, this Court will reverse the trial court only if the judgment is contrary to law. Comm'r, Ind. Dep't. of Envtl. Mgmt. v. RLG, Inc. , 755 N.E.2d 556, 559 (Ind. 2001). A judgment is contrary to law if the evidence leads to but one conclusion and the trial court reached an opposite conclusion. Infinity Prods., Inc. v. Quandt , 810 N.E.2d 1028, 1032 (Ind. 2004) (citation omitted). In determining whether the trial court's judgment is contrary to law, we will consider the evidence in the light most favorable to the prevailing party, together with all reasonable inferences therefrom. Smith , 977 N.E.2d at 4. We neither reweigh the evidence nor judge the credibility of witnesses. See Brand v. Monumental Life Ins. Co. , 275 Ind. 308, 417 N.E.2d 297, 298 (1981). Further, "[w]hen appealing from a negative judgment, a party has a heavy burden to establish to the satisfaction of the reviewing court that there was no basis in fact for the judgment rendered." Ind. & Mich. Elec. Co. v. Schnuck , 260 Ind. 632, 298 N.E.2d 436, 440 (1973).

Burnell v. State , 56 N.E.3d 1146, 1149-50 (Ind. 2016).

Waiver

[13] Phoenix contends that the trial court erred in holding that Meadows did not slander Phoenix's title to the Property by filing a lis pendens notice that clouded the title. In response, Meadows maintains that its filing of a lis pendens notice was absolutely privileged and, therefore, cannot constitute slander of title. However, before we reach the merits, we must address Phoenix's claim that Meadows has waived its privilege argument by failing to raise it in the trial court.⁴

[14] It is the general rule that an argument or issue raised for the first time on appeal is waived for appellate review. See, e.g. , Plank v. Cmty. Hosp. of Ind., Inc. , 981 N.E.2d 49, 53 (Ind. 2013). However, as another panel of this court has recently noted, "our [S]upreme [C]ourt has signaled a shift away from this rule, at least as far as appellees are concerned." Ind. Bureau of Motor Vehicles v. Gurtner , 27 N.E.3d...