State Ex Rel. Koppe v. Cass Circuit Court

________________________________________________________________________
Attorney for Kathy Koppe                     Attorney for Ralph Koppe


Mark A. Dabroski                             Donald J. Bolinger
Kokomo, Indiana                              Kokomo, Indiana
________________________________________________________________________

      IN THE INDIANA SUPREME COURT

STATE EX REL. KATHY KOPPE,   )
                                  )
                 Relator,         )     Supreme Court No.
           v.                     )     09S00-9910-OR-610
                                  )
CASS CIRCUIT COURT and the        )
Honorable Dennis H. Parry as Special    )
Judge thereof, and the Honorable        )
Chod Gibson, as Clerk of the Cass       )
Circuit Court,                    )
                                  )
                 Respondents.     )

________________________________________________________________________

                             AN ORIGINAL ACTION
     Cass Circuit Court – The Honorable Dennis H. Parry as Special Judge

                         Cause No. 09C01-9805-DR-108

________________________________________________________________________


      February 15, 2000

Per Curiam

      This original action arises out of a  dissolution  proceeding  pending
before the respondent court and judge.  After entering an  order  dissolving
the marriage of Ralph (“Ralph”) and Kathy (“Kathy”)  Koppe,  the  respondent
judge set a date for the submission  of  additional  evidence  on  remaining
issues, such as the division of marital property.

      On February 25, 1999, the parties  appeared  and  presented  evidence.
Kathy, the relator herein, filed a motion pursuant to Trial Rule  52  asking
that the judge make special findings of fact and  conclusions  of  law.   An
additional day for the submission of evidence was needed, and the taking  of
evidence was recommenced and concluded on April 28,  1999.   Following  this
final evidentiary hearing, the respondent  judge  directed  the  parties  to
file proposed findings of fact and  law  within  twenty  days.   Both  sides
ultimately submitted their respective proposed findings.

      On July 28, 1999 – ninety-one days after the  final  hearing  –  Kathy
filed a praecipe with the respondent clerk of the  court,  asking  that  the
cause be withdrawn from the respondent judge because of undue delay  in  the
entry of a final judgment.  Our trial rules provide that:  “Upon the  filing
by an interested party of a praecipe specifically designating the motion  or
decision delayed, the Clerk of the court shall  . . . determine  whether  or
not a ruling has been delayed beyond the time  limitation  set  forth  under
Trial Rule 53.1 or 53.2.”  Ind. Trial Rule 53.1(E).

      In this  instance,  Kathy  asserted  that  the  respondent  judge  had
delayed his ruling beyond the time allowed  under  Trial  Rule  53.2,  which
states, in part:
      Whenever a cause (including for this  purpose  a  petition  for  post-
      conviction relief) has  been  tried  to  the  court  and  taken  under
      advisement by the judge, and the judge fails to determine any issue of
      law or fact within ninety (90) days, the submission of all the pending
      issues and the cause  may  be  withdrawn  from  the  trial  judge  and
      transferred to the Supreme Court for  the  appointment  of  a  special
      judge.

T.R. 53.2(A).  The cited rule permits  two  exceptions  to  this  ninety-day
period within which a matter may be held under  advisement.   The  first  is
where the “parties who have appeared or their counsel stipulate or agree  on
record that the time limitations set forth in this rule  shall  not  apply.”
T.R.  53.2(B)(1).   The  second  exception  permitted  is  where  the  “time
limitation for decision has been extended by the Supreme Court  pursuant  to
Trial Rule 53.1(D).”  T.R. 53.2(B)(2).

      The respondent  clerk  determined  that  the  decision  had  not  been
delayed beyond ninety days, and notified the parties of  that  determination
as required in Trial Rule 53.1(E)(1).   The  respondent  clerk  declined  to
find delay beyond ninety days because the respondent judge had directed  the
parties to file proposed findings of fact and law within twenty  days  after
the final hearing.  In the clerk’s view, this directive had  the  effect  of
extending the ninety-day time  period  within  which  the  respondent  judge
could take the matter  under  advisement  by  the  additional  twenty  days.
Kathy disagreed.  This original action  ensued,  Kathy  seeking  a  writ  of
mandamus compelling the respondent clerk to withdraw the cause  pursuant  to
the Rules of Procedure for Original Actions.

      After allowing additional briefing, in due course this  Court  granted
a permanent writ of mandamus, directing that the  cause  be  withdrawn  from
the respondent court and that any orders issued  after  the  filing  of  the
praecipe for withdrawal be vacated.  We now publish this opinion to  explain
our reasons for granting the writ application.

      In a memorandum filed in opposition to the original  action  petition,
Ralph asserted that, in effect, the parties had agreed on  the  record  that
the time for taking the matter  under  advisement  was  to  be  extended  by
twenty days.  He argued the exception to the ninety-day time limit found  in
Trial Rule 53.2(B)(1) cited above should apply and the writ petition  should
be denied.

      The record shows that the respondent  judge,  with  counsel  for  both
parties acknowledging their understanding thereof, allowed twenty  days  for
the submission  of  proposed  findings  of  fact  and  conclusions  of  law.
However, a more plain and clear agreement or stipulation to an extension  of
time within which a matter may be kept under advisement than this is  needed
in order to invoke the exception found in Trial Rule  53.2(B)(1).   And,  as
we have held in the past, the  filing  of  additional  briefs  does  not  in
itself extend the time period for ruling on a particular  matter.   Lies  v.
Ortho Pharmaceutical Corp., 286 N.E.2d 170, 172 (Ind. 1972).

      For the purpose of Trial Rule 53.2, a matter may be said to have  been
taken under advisement once the submission of evidence has concluded.   Once
a matter is taken under  advisement,  the  offering  of  additional  briefs,
arguments, proposed findings, or other documents that may be helpful to  the
court but which are not evidence  do  not  by  themselves  effect  the  time
within which a ruling may be required under Trial Rule 53.2.

      The overall purpose of Trial  Rules  53.1  and  53.2  is  to  expedite
litigation.  Williams v. State, 716 N.E.2d 897, 900 (Ind. 1999).  The  Court
is mindful of the fact that withdrawal of a  cause  from  a  judge  who  has
already heard the evidence is inefficient and thus may  defeat  the  purpose
of the rules, at least in that individual case.  But the goal of  expediting
litigation is statewide in scope, and that  larger  objective  can  best  be
achieved when trial judges are cognizant of the requirements of Trial  Rules
53.1  and  53.2  and  understand  that  those  dictates   are   enforceable.
Moreover, as noted above, the rules themselves allow for extensions of  time
either by express agreement on the record or by application to this Court.

      We note further that the procedure for enforcing Trial Rules 53.1  and
53.2 where a clerk erroneously refuses to recognize that a cause  should  be
withdrawn is to file an original action.  Williams, 716 N.E.2d at  900.   As
we have recently restated,  a  party  may  not  wait  until  an  unfavorable
judgment or ruling has been made, and then seek to invoke or  enforce  Trial
Rules 53.1 and 53.2.  Williams, 716 N.E.2d at 900;  Jolly v.  Modisett,  257
Ind. 426, 429, 275 N.E.2d 780, 781-82 (1971).[1]


      There may be circumstances, however, when  it  will  become  virtually
impossible to enforce one’s rights under Trial Rule 53.1 or 53.2 through  an
original action prior to an unfavorable ruling  in  the  trial  court.   For
example, suppose a party files a praecipe for withdrawal of the cause  after
the time period for a ruling has lapsed.  Then, within  a  short  period  of
time thereafter, the clerk refuses to withdraw the submission and the  judge
rules on
the pending matter.  In that  situation,  the  party  who  then  pursues  an
original action would be doing  so  only  after  receiving  the  unfavorable
ruling, suggesting the possibility that the party  might  be  estopped  from
seeking a remedy.  See Williams, 716 N.E.2d at 900-901.  This was, in  fact,
what happened in this particular case.


      The remedies afforded under  the  rules  governing  original  actions,
while not favored and available only where the trial  judge  has  failed  to
perform  a  clear,  absolute,  and  imperative  duty  imposed  by  law,  are
equitable in nature.  State ex rel. Woodford v. Marion Superior  Court,  655
N.E.2d 63, 65 (Ind. 1995).  When such a situation arises, as  it  did  here,
we will look to see whether the party has acted  promptly,  diligently,  and
consistently with an intent to enforce the party’s rights under Trial  Rules
53.1 and 53.2 in determining whether a writ of mandamus should issue.


      In this case, Kathy was diligent in  initiating  the  original  action
process by requesting a copy of the record  within  a  few  days  after  the
clerk refused to withdraw the cause.  The praecipe  for  withdrawal  of  the
cause was filed prior to the court’s ruling on the  merits,  but  after  the
submission of evidence had been  under  advisement  for  over  ninety  days.
There was no express  agreement to an extension of  time  within  which  the
matter was to be held under advisement warranting a claim  to  an  exception
under Trial Rule 53.2(B)(1).  Neither  did  the  respondent  judge  seek  an
extension of time from this Court as permitted by Trial Rule 53.1(D).

      For the foregoing reasons, the Court granted  Kathy  Koppe’s  verified
petition for a writ of mandamus.

All Justices concur.
-----------------------
[1] Similarly, the benefit of Trial Rules 53.1 or 53.2 may be  waived  where
the deadline for a ruling has passed, but rather than filing a  praecipe  to
withdraw the cause, a party files pleadings  or  otherwise  takes  voluntary
action of record inconsistent with  that  party’s  right  to  invoke   those
rules.  See generally Board of Medical Registration v. Turner, 241 Ind.  73,
77-78, 168 N.E.2d 193, 195 (1960)(applying a predecessor rule).