Marriage of Schultz v. Wolfe

BAKER, Judge

concurring.

While I agree that my colleagues have correctly recounted the present state of the law in this instance, I write separately to express my views regarding the pitfalls that are inherent as the result of today's decision. In the cireumstances presented here, Schultz maintains that she did not receive the order appointing the panel until April 17, 2002. Her act of striking one of the judges on the thirteenth day before the period was to expire, in effect, afforded Wolfe no time to respond and strike one of the panel members before the original court resumed jurisdiction.

Such a result is troubling because the provisions of T.R. 79 effectively invite a certain amount of justice by ambush and perpetuate a rule that simply encourages a race to the courthouse in some instances. As Justice Dickson observed in his dissent in State ex rel. Smith v. Lake Superior Ct., 531 N.E.2d 213, 215 (Ind.1988), a case involving the change of venue requirements under T.R. 76, a party charged with responding to such a motion might avoid participation in the striking process until the expiration of the time period and race to the courthouse the next morning to file a motion to reassume jurisdiction. Similarly, the movant might join the race and seek to precede his opponent's motion by first filing his request for the clerk to strike.

The same problems persist in cases that involve a change of judge under T.R. 79. Simply put, the present state of the law creates the potential for inviting intolerable "gotcha" litigation tactics. See Wilson Fertilizer & Grain, Inc. v. ADM Mill. Co., 654 N.E.2d 848, 856 (Ind.Ct.App.1995) (Kirsch, J., concurring and dissenting) (disagreeing with the majority's application of the law to the facts enabling appel-lee-defendant to play and win "the latest version of 'Legal Gotcha'" and receive goods that it had ordered without paying for them); Salcedo v. Asociacion Cubana, 368 So.2d 1337, 1339 (Fla.Dist.Ct.App.*11701979) (condemning "gotcha" litigation tactics); Thomas v. City of Miami Beach, 753 So.2d 591, 591 (Fla.Dist.Ct.App.2000) (disapproving of "gotcha" administrative practices); see also In re Marriage of Tearman, 617 N.E.2d at 977 (observing that the purpose of permitting a credit against the non-custodial parent's basic support obligation for educational support costs is to avoid double payment of the same expense resulting in a windfall for the custodial parent).

That said, it is apparent to me that the only alternative available to avoid such tactics in cases involving the striking process under T.R. 79, is for the moving party to tender a motion to the clerk's office simultaneously with the first strike and request the clerk to strike one of the judges if the opposing party does not do so in a timely fashion. In the event that the moving party does not undertake such a corrective measure, the various "gotcha" litigation techniques that have been condemned by our courts may become more commonplace in T.R. 79 cases as the rule is currently written and interpreted.