Trojnar v. Trojnar

STATON, Judge,

dissenting.

I dissent from the Majority Opinion for the following reasons:

1. A new rule has been promulgated by the Majority. It assumes that Trial Rule 76 rulings should be treated the same as Trial Rule 75 rulings. The latter is a mandatory appeal pursuant to Appellate Rule 4(B)(5) while the former is not. The Majority concludes: “At the time of an adverse ruling under T.R. 76, the parties must perfect an appeal.” Op. at 1096. The reason for filing an appeal after a T.R. 75 ruling is the mandate of the Rule itself, T.R. 75(E). Under T.R. 76, an adverse ruling on a change of judge motion should be challenged by a petition for a writ of mandate to the Indiana Supreme Court. If the trial court treats the motion for change of judge as a 4(B)(6) interlocutory motion, and by its ruling makes certification impossible by requiring a cash bond of seven *1098thousand dollars ($7,000.00), a direct appeal on the adverse ruling should be permitted. Trojnar v. Trojnar, 656 N.E.2d 287 (Ind.Ct.App.1995); Cooley v. Koetter Woodworking, Inc., 607 N.E.2d 975 (Ind.App.1993); Marianos v. Marianos, 431 N.E.2d 530 (Ind.App.1982). Otherwise, equal protection is denied and the rules create a miscarriage of justice.
2. Conditional certification here amounts to a denial rather than a genuine certification under the law. The order pf the trial court states: “... that upon the posting of cash bond in the amount of $7,000 for child support, Certification Order shall issue.”4 Here the trial court has treated the change of judge motion granted conditionally under 4(B)(6).
3. The trial court is without authority to issue a conditional appealable interlocutory order. “No appeal bond shall be necessary to perfect an appeal from any judgment or appealable interlocutory order.” T.R. 62(D); App. R. 6(B); Agmax, Inc. v. Countrymark Cooperative, Inc., 661 N.E.2d 1259 (Ind.Ct.App.1996). An appeal bond may only be imposed in order to stay enforcement of a judgment or order during an appeal. Id.
4. To the extent that the Majority Opinion implies that Anthony waived the right to appeal the second denial of his motion for change of judge due to the lapse of time, the implication is erro-nous, since the ruling was never properly certified. For the first denial of Anthony’s change of judge see Trojnar v. Trojnar, 656 N.E.2d 287 (Ind.Ct.App.1995).

For the above reasons, I conclude that the Majority Opinion has attempted to promulgate a new Appellate Rule — a responsibility reserved to the Indiana Supreme Court under the Indiana Constitution. Uzelac v. Lake Criminal Court, 247 Ind. 87, 212 N.E.2d 21 (1965). Additionally, the Indiana Legislature has recognized the Indiana Supreme Court as the only authority which can adopt, amend or rescind rules of court affecting matters of procedure. Ind.Code § 34-5-1-1 (1993). I further conclude Anthony was entitled to a change of judge.

Before turning to the merits of Anthony’s claim, it is necessary to address the relevant facts in further detail. Over three years ago, Anthony filed a petition to modify a support order and a motion for change of judge. The trial court, inter alia, denied Anthony’s motion for change of judge. Anthony successfully appealed this ruling, and on October 10, 1995, this court reversed the trial court with instructions to grant Anthony’s motion for change of judge. Trojnar, supra, at 290.

Upon remand, the trial court issued an order for change of judge, naming three judges from which the parties would alternately strike in accordance with T.R. 76(D). The order was filed on December 4, 1995. However, the Chronological Case Summary (CCS) shows that copies of this order were not mailed until December 18, 1995. Upon receiving the order on December 19, 1995, Anthony’s counsel struck one of the judges and mailed the order back to the court on December 20, 1995. Trial Rule 76(D) provides that the right to strike must be exercised within fourteen days after the list is submitted to the parties. Based on this requirement, the trial court struck Anthony’s striking of one of the judges as tardy, notwithstanding that the list itself was not mailed to Anthony’s attorney until after the fourteen days had expired. Anthony filed a T.R. 72(E) motion for relief based on the fact that he could not have possibly complied with the fourteen day requirement since the Clerk failed to transmit the list until after the fourteen days had expired. The trial court denied this motion apparently finding that the 72(E) motion was untimely since it could have been faxed to the court on the day Anthony’s counsel received the list of three judges in the mail.5 Thereafter, the trial *1099court resumed jurisdiction in this cause based on T.R. 79(F)(3), found Anthony in contempt and ordered him incarcerated for sixty days, suspended his driver’s license, and ordered him to pay Carole’s attorney fees.6

Anthony argues that the trial court erred by finding his strike untimely and then compounded this error by denying his T.R. 72(E) motion. I agree with both arguments. First, T.R. 76(D) provides that a party has seven to fourteen days to exercise a strike after submission of the list in writing to the parties. Thus, the time an order spends sitting in the Clerk’s office is not counted. Placing an order on the Clerk’s desk does not constitute submission of it to the parties. I conclude that the trial court erred when it found Anthony’s strike untimely since the CCS demonstrates a fourteen day delay from the date the order was issued until the date the Clerk mailed the order and list to Anthony’s counsel. The fourteen days contemplated by T.R. 76(D) should begin no earlier than from mailing of the order.

Perhaps the trial court was unaware of this time lag when it initially found Anthony’s strike untimely. However, Anthony brought the situation to the court’s attention in his 72(E) motion for relief. Trial Rule 72(E) provides for an extension of time, upon showing of good cause, in which to contest a ruling, order or judgment when the CCS demonstrates notice of the ruling, order or judgment was not sent to the moving party. The Clerk is under a duty to send notice of trial court orders to parties. T.R. 72(D); Marich v. Lake Superior Court, 273 Ind. 690, 407 N.E.2d 233, 234 (1980). It is an abuse of discretion not to grant relief under T.R. 72(E) where the CCS demonstrates the Clerk failed to send notice. M & J Services, Inc. v. VMK, Inc., 561 N.E.2d 827 (Ind.Ct.App.1990). This holding has been applied to T.R. 76 motions where a party failed to strike because notice of the order was never sent. Sargent & Dandy v. Vigo Superior Court, 260 Ind. 472, 296 N.E.2d 785 (1973). The rationale of Trial Rule 72(E) applies. Where the CCS affirmatively demonstrates delay in mailing an order to a party, it is an abuse of discretion to deny that party relief. Thus, the trial court erred by finding Anthony’s strike untimely, denying relief under T.R. 72(E) and not granting Anthony’s T.R. 76 motion.7 Accordingly, I conclude that the trial court erred in resuming jurisdiction of this ease. The trial court’s subsequent rulings are a nullity for want of jurisdiction. Trojnar, supra, at 290.

I dissent and would reverse the judgment of the trial court.

. Apparently not having $7,000 at his disposal, Anthony never availed himself of the option to seek an interlocutory appeal of the trial court’s second denial of his motion to change judge. (See Trojnar v. Trojnar, 656 N.E.2d 287 (Ind.Ct.App.1995))

. This assumes that Anthony's counsel should have been aware that the trial court was going to *1099charge him with the fourteen day delay when its order was sitting in the Clerk's office.

. On appeal, the trial court set a bond of $20,000 to stay this order. This court, by its own order, has stayed enforcement of the trial court’s order during appeal without the posting of any bond.

. Without going into detail as to other collateral facts of this case, suffice it to say that if there ever was a fact scenario justifying automatic T.R.76 change of judge motions, this trial court’s malevolent disposition toward Anthony Trojnar is it.