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HomeMy WebLinkAbout02) BridgeviewBridgeview Center, LLC, Plaintiff YS. In The Clark Circuit Cot~r~ state of Indiana Cause: 10C01-0203-PL-230 Special Judge L, Whitis The City of Jeffersonville, Indiana, Et. Al., Defendants City of Jeffersonville's Response to Bridgeview's Obiection to New Trial Comes now the Defendants (City), by counsel, Larry Wilder, and for its ,esponse to the Plaintiff's (Bddgeview) objection to a new trial sets forth the following: I. Facts ' ' -This case was tried before Judge Terrence Cody on two-(2) separate days ending in September of 2004. The trial court heard evidence from four (4) witnesses that s 9armed at least sixteen (16) hours. Bridgev~ew had the burden of proof uoon its claims of slander of title and inverse conaemnation. Moreover, 3ridgeview had the burden of proving that it suffered damages if it could meet the Burden of proof upon those torts. Much, f not a of Bridgeview's case rested upon the credibil ty of the witnesses it presented at trial. The City presented testimony to rebut Bridgeview's position on both liability and damages. The court ordered the parties to exchange their proposed findings of fact and conclusions of law by December 6, 2004. The parties complied. Pursuant to Trial Rule 53.1 Judge Cody had ninety (90) days from the conclusion of the trial to rule upon the case. He failed to do so and the City requested the case be removed from his consideration. The Clerk of the Clark Circuit Court reviewed the record and submitted the matter to the Indiana Supreme Court for assignment of a new judge. After objection by Bridgeview the Supreme Court appointed Judge Cile Blau of the Clark Superior Court II. Judge Blau conducte~l a pie-trial conference and scheduled the matter for hearing. Before the hearing Bridgeview filed a motion requesting the court recuse the City's attorney on various grounds. Judge Blau oenied Bridgeview's request and again set the matter for hearing. ......... Prior to hearing Bridgewew filed a motion req~¢st_ing Judge Blau ,ecuse nerself. Bridgewew asserted Judge Blau had a conflict of interest. It was Bridgeview's contention that Judge Blau owned real estate in Jeffersonville and her ruling, if favorable for Bridgeview, could adversely effect her property tax rate Dy caustng it be increased to pay the multi-million dollar luogment that Bridgeview reouested. Therefore, Bridgewew opineo that the Judge had a "self-interest" in the result of the case. Judge Blau recused herself over the objection of the City. The recusal was sua sponte. After Judge Blau recused herself the case was submitted to Judge Frank Newkirk for appointment of another judge. Judge Newkirk appointed Judge Susan Orth of Floyd Superior Court. Judge Orth refused to accept jurisdiction and the case was returned to Judge Newkirk. Judge Newkirk, upon receipt of notice of Judge Orth's denial, appointed Judge H. Lloyd Whitis to hear the case. Judge Whitis assumed jurisdiction and conducted a pre-trial conference. - Judge Whitis informed the parties that he was unable to rule upon the "cold" transcript absent a stipulation by the parties setting forth that they agreed ti~at the testimony of all witnesses was reliable and credible. Judge Whirls tnformed that if the parties were unable to enter into such a stipulation he would schedule the matter for a new trial. The Judge opined that he felt that without the stipulation to decide the case on the "cold" transcript would constitute "reversible error". The City Cou ncil of Jeffersonville determined that it was unwilling to authorize its attorney to stipulate to the credibility of the witnesses. Judge Whirls, upon receipt of notice of the City's position, scheduled the matter for ore-trial. At the pre-trial Bridgeview submitted its objection to scheduling a new trial. II. Issue: -3- Does Judge Whitis have the authority to order a new trial in this matter? III. Le al~ment: A. If Judge Whitis Fails to Order a New Trial The City of Jeffersonville's Constitutional Riqht to Due Process Law Would Be Violated. Indiana law has established that due process requires the trier of fact hear all of the evidence necessary to make a meaningful evaluation of a case. If the trier of fact rules upon a matter without benefit of hearing the evidence this constitutes a denial of due process. Miller v. Industrial Hardwoods Corp., 7?5 N.E.2d 1168 (Ct. App. 2002). In Urbanational Developers, Inc., v. Shamrock Eng., 372 N.E.2d ?42 (Ct. App. 1978) the parties enterec into a contract for construction. During the course of the project disputes arose regarding payment and other ~ssues involving construction. Shamrock sued Urbanational alleging that Urbanational breached the contract and owed it money. A trial was held and Uroanational was awarded judgment against Shamrock. Sk~m-r~)ck filed a Motion to Correct Errors. The trial judge failed to rule on Shamrock's Motion to Correct Errors within the thirty (30) Qays allowed and a new judge was appointed by the Indiana Supreme Court pursuant to Trial Rule 53.1. The successor judge ordereo a transcript of the proceedings aha after on Shamrock's Mot on To Correct Errors, amended the hearing argume.nts -4- judgment nearly tripling the amount Shamrock owed Urbanational. Shamrock appealed the successor judge's decision aIleging that the successor judge should not have been permitted to rule upon the Motion to Correct Errors since the successor judge had not heard the original trial. The Court of Appeals found that the successor judge was granted all of those rights, duties and powers set forth in Trial Rule 63(A) which sets out in pertinent part that: Rule 63. Disability and unavailability of a judge. (A) Disability and unavailability after the trial or hearing. The judge who presides at the thal of a cause or a hearing ar which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating te the evidence and the conduct of the thai or heating after the trial or hearing is concluded. If the judge before whom the thai or hearing was held is not available by reason of death, sickness, absence or unwillingness m act, then any other judge regularly sitting in the judicial circuit or assigned to the cause may perform any of the duties to be performed by the court after the verdict is resumed or the findings or decision of the court is filed; but if he is satisfied that he cannot perform those duties because he did not preside at the thal or for any other reason, he may in h/s discretion grant a new trial or new hearing, in whole or m pm. The unavailability of any such trial or hearing shall be determined and shown by a com-r order made by the successor judge at any time. The court found'that (fi~re are times that, "...the successors judge's failure to preside at trial renders him ill-equipped to perform the functions of the regular trial judge. One of these instances occurs when he ~s confronted with an issue which requires for its resolutic q a determination of the credibility of witnesses or the weight to De accorded certain evidence." Urbanational, at 421. Further. the Urbanat onal court conc uded that "When a successor juoge attempts to resolve ~: -:-. ........ _ _ ..: _: -5- questions of credibility and weight of evidence without having had an opportunity to hear the evidence and observe the demea nor of witnesses he is depriwng a party of an essential element of the trial process. Such an undertaking by the successor judge is against the logic an(~ effect of the facts and circumstances before the court and amounts to an abuse of discrebon. Urbanationat. Ibid. The court held that a refusal to permit the successor judge to conduct a new trial would be contrary to Trial Rule 63 as well as violate the parties due process rights. The court found that, "To nold otherwise would be to grant a . power of review to the successor judge that is not even claimed by the appellate court." This tenet was upheld in Holmes v. Holmes, 726 N.E.2d 1276 (App. Ct. 2000), a child support, visitation and custody case. In Holmes the o_riginal divorce was entered in Michigan. Both parties moved to Indiana however, several legal proceedings were conducted in Michigan before the mother requested that the case be removed to Indiana. Upon remo~/al to Indiana a hearing was held on the child support issue. The father was unhappy with the ruling of the presiding judge, Donald Leicht, and appealed Judge Leicht's order to the Indiana Court of Appeals. The Court of Appeals reversed Judge Leicht and remanded the matter for additional findings of fact. Unfortunately, before the case was returned tc the trial cour~ Judge Leicht was defeated in the General Election and Julian Ridlen was the new Circuit Court -6- judge. The mother, who was the benefactor of Judge Leicht's ruling, requested that the court appoint Judge Leicht to enter the additional findings of fact. The father objected and a hearing was held to determine whether or not the case should be ~eard by Judge Leicht. Judge Ridlen, after hearing argument from the parties, determined that he was the appropriate party to determine the matter. After making this determination Judge Ridlen conducted a hearing in which the parties testified and he reopened the record of the original proceeding and took additional evidence regarding the case in chief. After hearing the parties testimony and reviewing the additional evidence Judge Ridlen ruled. The mother, unhappy with the result, appealed the ruling to the Court of Appeals. The mother argued that Judge Ridlen erred when he (~egpened the record and heard tesimony. She also contended that the appropriate judge to hear the case was Judge Leicht, since he was the original trial judge. T_he court disagreed. The court stated that: "'Indiana Trial Rule 63(A) allows a successor judge to perform any post.trial duties which the judge who conducted the trial or hearing could have performed. The rule provides that 'if a judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part.' This rule contemplates that the successor judge may not feel comfortable relying solely upon the transcript of evidence from the trial to render a decision." Holmes, at 1281, See AIso, State Ex. Rel, Harp v. Vanderbur.q Circuit Court, 85 N.E. 2d 254 (Supreme Court found that the death of a judge subsequent to hearing a case, but before rendering a decision cOn-stituted grounds for' ne~v~udge to conductnew tria/); Dawson Et.. '-: --" _?- Al., v. Wri.qht, Mayor, etc., 12g N.E. 2d 796 (Supreme Court reemphasized that due process mandates that judge who rules upon case has opportunity to try and hear evidence). The law in Indiana is clear inasmuch as it acknowledges that litigants have a constitutionally protected right to due process. Further, the courts have established that this right mandates that a jucge who determines litigants fate shall nave been the judge who heard the evidence upon which ne is ruling. Therefore, Judge Whirls has the right to order a new trial and the City of Jeffersonville nas tr~e constitutional right to nave the successor judge hear the evidence at the new trial. Jeffersonville Did Not Stipulate To Allow Judqe Whitis To Rule Upon the "Cold Record" Bridgeview argues that Jeffersonville waived its due process rights by filing a motion with the court requesting the transcript of the prior trial be prepared and submitted to ti~e successor judge. Bridgeview relies upon the holding in Farrier v. "-l~'a~:~e~-480 N.E.2d 251 (Ct. App. 1985) to support thi~ contention.. Famer was a will contest emanating from the Tippecanoe Circuit Court. In Farner the relatives left out of the will appealed an adverse cecision denying their claims of undue influence and challenges of corn petency. The case was, "..heard and Transcribed by the Tippecanoe Circuit Court. Pursuant to Indiana Trial Rule 53..1 .ant. 53.2 a special judge was a_P.l~inted to render a de_cisio.n basedo~ !h_e -8- stipulated record and transcript of the evidence without hearing any new evidence." The Court of Appeals opined that the general rule in Indiana "...in such case is that a successor judge may not make findings of fact or conclusions of law without a trial de novo." Farner, at 257. The court went on to note that "This is because '(a) party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence." Ibid. However, the court found that an exception to the rule existed in circumstances wnere the parties stipulate the record and agree to allow the successor judge to rule upon the "cold" transcript. The court found that: "In a case where the resolution of a material issue requires a determination as to the weight and credibility of testimony, due process requires that the trier of fact hear all of the evidence necessary to make a meaningful evaluation. However, we find that like other elements of due process, this right may be waived. Thus, when the trial judge who heard the testimony and observed the demeanor of the witnesses at the trial is unavailable to render a decision thereon, the parties may stipulate that the substitute judge should determine the case on the record." Farrier, at 258. .... - ----~- ...... Juoge Whitis asked the parties to c°nsid~' ~r~tering into a stipulated ............ ~greement acknowledging the credibility ofthe'witnesses. The·City Council of Jeffersonville was unwilling to enter into such a stipulated agreement. Judge Whitis informed the parties at the pre-trial conference that it was his opinion that if the parties did not stipulate to the credibility of the witnesses the lack of the st pulat on wou d const lute revers b e error Judge Wh~t~s ~s correct -9- The City and the taxpayers of Jeffersonville have a cor~stitutional!y protected right to due process of law. Judge Whiffs recognized this constitutional right exists and inquired as to whether or not the parties were willing to waive their due process rights and submit the case upon stipulation for ruling upon the "cold" record. The City Council, the watchdogs elected by the citizens, determined that they were unwilling to authorize the waiver of this constitutional right. Therefore, Judge Whitis, correctly, set the matter for trial de novo. C. .Judqe Whiffs Has The Authority to Order a New Trial, The issue before the court was specifically addressed in State v. Erlewein. 755 N.E. 2d 700 (Ct. App. 2001). Erlewein was charged with Battery as a Class A Misdemeanor. Honorable Frank Messer, Jr. hearc the case after several delays. &t the close of the State's evidence Erlewein moved for a directed verdict arguing that the State had failed to prove venue. Judge Messer took tf~e venue issue under advisement and continued with the trial. At the conclusion of all of the evidence Judge Messer informed the parties that he would take the entire case uneer advisement. The trial concluded on SepTember 13, 1999. On February 29, 2000 the prosecutor filed with the trial court a Praecipe for With(]rawal of Jurisdiction and Transfer to the Supreme Court. On May 30, 2000 the Indiana Supreme Court issued an order appointing Daniel Pflum as Special -10- On April 23, 2001 Judge Pfium directed the parties to provide a memorandum setting forth whether the parties believed that Judge Pflum coutd, "...review the record of proceedings to determine if the State proved venue. If not then the Court would have to declare a mistrial. If a mistrial is declared would the new trial constitute double jeopardy." On July 25, 2001 Judge Pflum, sua sponte, declared a mistrial after reviewing the parties, memorandum and the tape of the bench trial. Moreover, Judge Pflum ordered the parties to file a memorandum on whether or not a new ...... trial would violate double jeopardy. The prosecutor requested the judge reconsider his eecision ordering a mistrial and a new trial. Judge Pflum denied this request and found that, "The court being duly ordered will not reconsider it's declaring a mistrial and it will not and cannot judge the credibility of the two witnesses without seeing the evidence as they testify." Judge Pflum, subsequent to declaring a mistrial, ruled tl~at Edewein could - not be retriec because double jeopardy attacned. The prosecutor appealed the - court's determination asserting that it was error for the court to order the new trial. The Indiana Court of Appeals agreed with the State inasmuch as it found that double ieopardy had no(attached as a result of the Trial Ru[e 53.1 motion however, the court did qot agree with the prosecutor's contention that a "new trial" was prohibited uneer the circumstances. The court opined that. "a ears that Special Judge Pfium viewed the State's ......... It. pp ..... . ..... -'~ ~-:-~^ *he trial'(~o~rt int~'sUa'sponte ~ Trial Rule 53 motion as a mean~ ~u ,u,,.~ - demeanor of witnesses, he is depriving a party of an essential element of the trial process. Such an undertaking by the successor judge is against the logic and effect of the facts and circumstances before the court ane amounts to an abuse of discretion." The Judge acknowledged that absent such stipulation rulin9 upon the "cold" record would constitute "reversible error". Clearly, the Judge understood that violation of either parties due process rights would constitute error. Respectfully Submitted: ~ O"~/V-ila~,r,~k'~ne~-at Law~ 530 Ea§t Cou~venue jeffersonville, Indiana 47130 Tx: 812.2828.6820Fax: 812.282.3188 Indiana Sup. Ct. 11443-10 Ce~icat~e~ice I, LarW Wilder, affirm that I have mailed a copy of the above document to the acin a copy of same in the United States ~1 postage prepaid below attorney, ,~Y P g .... k,~ n~r onal deliver on this ~ . day of . , /or b providing a ¢~Y of sam~ ~.P~ .., ~_.,.. ~*-~t New Albany, Inaiana ~ Y ?0 John Kra~ ~ vv. op-,,~ ..... ,