dissenting.
On January 25, 1988, defendant-relator timely filed her Motion for Change of Venue and immediately struck from the list of counties. In accordance with Trial Rule 76(9) plaintiffs were to respond by striking on or before February 1, 1988. Failing to receive any pleading or notification that plaintiffs had acted as required by the rule, defendant on February 9, using service by mail, filed her request for the clerk to strike on behalf of the plaintiffs. On the same day, however, plaintiffs filed a motion to reassume venue. The trial court subsequently reassumed jurisdiction and ruled that defendant had failed to conform to the requirements of Trial Rule 76, apparently due to the fortuitous receipt by the trial court of plaintiffs’ motion to reassume jurisdiction before defendant’s request for the clerk to strike.
It is contrary to the principles of justice to deprive a party of rights reasonably and diligently exercised in complete conformity to the Indiana Rules of Procedure, and to reward the opposing party for evading the clear mandate of Trial Rule 76(9) which requires that “the parties within seven days thereafter ... shall each alternately strike.”
The majority opinion invites gamesmanship and fortuitous justice. Henceforth, a party responding to a motion for change of venue is encouraged to employ the following gambit: avoid participating in the striking of counties until the expiration of time allowed by Trial Rule 76(9) and race to the courthouse the next morning to file a motion to reassume jurisdiction. The mov-ant’s necessary defensive strategy will be to protect his motion for change of venue by joining the race and seeking to precede his opponent’s motion by first filing his request for the clerk to strike. This is altogether unseemly and counter-productive. We should not condone justice by ambush nor unnecessarily burden the trial courts and litigants by fostering such wasteful proceedings.
Of course, the moving party may not unreasonably delay filing a request for the clerk to strike for the nonmovant. A trial court may resume jurisdiction upon a finding of laches against the moving party.
I would grant relator’s petition for writ of mandamus and prohibition.
PIVARNIK, J., concur.