By Josh Tatum, Plews Shadley Racher & Braun
On July 24 the Indiana Supreme Court verified that appellees who disagree with a trial court’s reasoning but ultimately agree with the judgment are not required to characterize their criticisms as a cross-appeal.
In Drake v. Dickey, the Indiana Court of Appeals reversed partial summary judgment that the trial court had entered in favor of Duke Realty. The lawsuit had been brought by an attorney who alleged Duke had tortiously interfered with her partnership agreement with her law firm. In Duke’s appellee’s brief, the real-estate firm argued it “was entitled to summary judgment on multiple grounds, all of which are sustainable by the record.” In arguing for affirming the trial court’s judgment, Duke raised an alternative argument that the trial court had earlier rejected.
In a footnote, the Court of Appeals implied that Duke should have denominated the alternative argument “as a cross-appeal issue,” citing Ind. Appellate Rule 9(D). Despite this, the court went on to address the substance of the argument. Drake v. Dickey, 2 N.E.3d 30, No. 29A02-1302-CT-152, slip op. 2 n.2 (Ind. Ct. App. Dec. 11, 2013).
The Indiana Supreme Court granted transfer for the sole purpose of vacating that footnote. The Court reiterated that “[t]he Appellate Rules do not require the filing of a cross-appeal where the appellee does not seek reversal of the order or judgment appealed, but instead raises a ground for affirming that appears in the record and was rejected or not considered by the trial court or agency.” Drake v. Dickey, No. 29S02-1407-CT-483, slip op. 2 (Ind. July 24, 2014) (citing Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012) (“a prevailing party … may defend the trial court’s ruling on any grounds, including grounds not raised at trial”)).
The Supreme Court’s per curiam order addressed the only concern raised by the Appellate Practice Section of the Indianapolis Bar Association in an amicus brief supporting transfer. The brief, which was drafted by Libby Goodnight, a partner at Krieg DeVault LLP and Vice Chair of the section’s Executive Committee, argued that the footnote’s “handling of this procedural issue is at odds with well-settled appellate law and practice.” The sole relief the IndyBar Association brief sought was to “clarify that an appellee who prevailed in the trial court below and does not seek reversal of the judgment need not bring a cross-appeal under Appellate Rule 9(D) in order to present alternative arguments for affirming the trial court’s judgment.”
Josh Tatum, an associate at Plews Shadley Racher & Braun, is an at-large member of the IndyBar Appellate Practice Section’s Executive Committee and its amicus subcommittee.