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HomeMy WebLinkAbout01) Bridgeview Center.// IN THE INDIANA SUPREME COURT CAUSE NO. 10s01-0502-sj-068 BRIDGEVIEW CENTER, LLC, Petitioner/Plaintiff Vo THE CITY OF JEFFERSONVILLE 'BOARD OF ZONING APPEALS AND JEFFERSONVILLE DEPARTMENT OF REDEVELOPMENT, Respondents/Defendants PIAINTIFF'S VERIFIED REOUEST FOR RECONSIDE~TION OF WITHDRAWAL OF SUBMISSION AND DETERMINATION REGARDING RULE 53.2, REQUEST FOR ORAL ARGUMENT AND REQUEST FOR THE MATTER TO BE HEARD BY FUIJ~ COURT COMES NOW the Petitioner/Plaintiff, BRIDGEVIEW CENTER, LLC, pursuant to Appellate Rule 34, by its attorney, JOHN A. KRAFT, and after being duly sworn upon his oath, respect%lly requests the full Court reconsider the Ruling of this Court on April 12, 2005 in.the above styled matter in which it removed the Honorable J. Terrence Cody under Trial Rule 53.2, and for cause states: The trial court clerk's determination accurately described in paragraphs one (1) and two (2) the sequence of the trial and the dates in which the Court heard evidence. . The trial court clerk's determination under Trial Rule 53.1(E) is perfunctory in nature by ruling solely upon the dates set out in the Chronological Case Summary ("CCS"), and the clerk, without a notation on the CCS, is not advised of, nor aware of agreements counsel made on the record in open court. o The trial court clerk's determination, as prepared by Defendants' counsel, inaccurately described, and misled the Court, relating to the findings of fact and conclusions of law, as the parties agreed on the record to the submission of find~gs of fact and conclusions of law pursuant to Trial Rule 52. o At the commencement of the trial, the Court granted both parties' requests for findings of fact and conclusions of law advising a determination would be later made relating to the timing of submission of the same. o At the conclusion of the presentation of evidence, on the record in open Court, Defendants' counsel originally.requested ninety (90) days for completion of the findings and submission to the Court for consideration, at which time the parties agreed upon sixty (60) days. 6. Both counsel understood the ma~er would only be considered by the trial court after the submission of the findings of fact and conclusions of law. (See transcript as Exhibit "A") 7. The findings of fact and conclusions of law were submitted on December 6, 2004 as reflected on the CCS. 8. The Defendants incorrecdy, wrongfully and inaccurately stared in rhek' Praecipe (paragraph 7) the parries ro rh/s cause of action did nor stipulate or agree upon the record that the dme limitadon for the decision in this mart:er should not apply to this cause of action, as it was counsel for the Defendants that specifically requested the time period for submission of the findings of fact and conclusions of law, and Plaint~'s counsel agreed on the record in open court. 9. The trial court clerk's determination is based upon false and misleading /nformarion supplied ar the insistence of the Defendants over advice of their attorney, as Defendants' counsel has openly acknowledged and agreed to the trial court that he did, · in fact, agree ro the sixty.(60) days and understood the rime for ruling was ninety (90) days after the submissions on December 6, 2004. 10. Defendants' counsel has further acknowledged filing for withdrawal was only at the insistence of his clients. 11. As a result of the agreement of the parries on the record and sUbseqUent acknowledgement of Defendants' counsel concerning the dare of the submission of findings of fact and conclusions of law, the ninety (90) day period under Yrial Rule 53.2(A) had nor yet run when the Praecipe was filed by the Defendants. 12. The current order of th_is Court withdrawing jurisdiction has allowed the Defendants ro perpetrate a fraud upon the trial court clerk and this Court, and was made in bad faith. 13. The time period established under Trial Rule 53.2 should not have started until after the submission of the parries' findings of fact and conclusions of law on December 6, 2004 per the agreement of the parries in open court. (See Oswald v. Past:on, 509 N.E. 2d 217 (Ind. App. 1987)). 14. The Oswald decision is distinguishable from $~a~s v. Cass Circuit Court, 723, N.E. 2d 866 (Ind. 2000) as the Court in Cass ordered the parries to submit findings anq conclusions, where here the parries agreed in open court ro the submission dare, and such operated as a Waiver as to the. delay alleged by the Defendants. 15. Defendants' counsel, being an officer of the Court, upon being duly sworn Would only confirm the statements contained herein relating to the bm/rig calculations and the agreements to which he was a party. IN THE INDIANA SUPREME COURT Supreme Court No. ~ 0S00-0502 -SJ-68 BRIDGEVIEW CENTER, LLC, Petitioner VS, Lower Court Cause Cause No. 10C01-0203-PL-230 Clark Circuit Court Special Judge, Terrence Cody CITY OF JEFFERSONVILLE, ET AL., Respondent Respondent's Response to Petitioner's Request For Reconsideration of Trial Rule 53.2 Determination Comes now the Respondent, City of Jeffersonville, Et. Al., by counsel, Larry Wilder, and would set forth the following response to the Petitioner's Motion to Reconsider the Supreme Court's Order of April 12, 2005 which withdrew the lower court case from Judge Terrence Cody and appointed Judge.Cecile Blau to consider same, based upon the following' Statement of Facts: On September 3, 2004 Special Judge Terrence Cody convened the trial in cause number 10C01-0203-PL-230. The trial was held in Floyd Circuit Court by agreement of the parties. _]- The case was commenced and several motions were offered prior to the first witness taking' the stand. First, the City requested that the court, at the conClusion of evidence, enter findings of fact and conclusions of law. This motion was granted. The City requeSted leave to amend its answer to the Petitioners' (hereinafter'. "Bridgeview") complaint, moved to dismiss the Bridgeviews' claims as to Count Four of the complaint and requested that Bridgeviews' case be dismissed pursuant to Indiana Trial Rule 12(b)(6). The Judge took those matters under advisement and evidence was commenced. On September 3"~ the court heard testimony of Frank Csapo and admitted Bridgeviews' exhibits 1 through 10. The case was adjourned at the close of the day. The matter was re-set for September 27, 2004 at 9'30 a.m. in the Floyd Circuit Court. On September 27, 2004 the case was reconvened at 9'30 a.m. The testimony of Frank Csapo continued. At the close of Csapo's testimony Bridgeview rested their case. The City called two (2) witnesses. The City called Kathy Matthews and Phillip McCaule¥. The court admitted the City's exhibits ~ 1 and ~2 and Bddgeviews' [xhibit A. The City rested their case. At the close of evidence the court took judicial notice of the Verified Complaint for Declaratory jUdgment and Injunctive Relief in Cause 10C01-0110-CP-611 and the Motion to Dismiss and Order of Dismissal in that cause. The citY's motions to dismiss the issue of inverse condemnation and slander' of title were taken under adVisement. All of the City's remaining motions were denied. -2- The parties entered into discussion at'the close of evidence regarding the submission of proposed Findings of Fact and ConcluSions of Law. The attorneys, after discussion, agreed that they would submit the proposed findings of fact and · conclusions of law sixty (60) days from the close of evidence. The following exchanged occurred between the parties' Judge: Well, again I'll uh, deny the 1266, the tort claim notice, the immunity, uh, and as to the damages, taken under advisement, the motion to dismiss concerning the adverse condemnation and the slander of title and you can make your points in findings.of fact and conclusions of law. Uh .... Mr. Wilder: Sixty days to provide those, Judge? Judge: I'd say in this case that's probably every bit of that's gonna be needed? Mr. Wilder: Ninety? Judge: Uh... Mr. Wilder: John? Mr. Kraft: Let's look at sixty. Judge: Yea, let's look at sixty and if someone has a problem we can deal with it. Mr. Wilder: Submit them both the same day? Mr. Kraft: Yea, ! mean what, Ithink Judge's practice as well as ! think your's probably is as well is we'll file then exchange at the same time so it's not a matter of you got mine, I got your's, any time ahead of time and we'll make arrangements. Mr. Wilder: Inaudible Mr. Kraft: Mr. Wilder: Judge: Then you had sixty days uh, and we'll submit it to the Court in disc form as well as in hard copy. Do you want to call it, uh, today's the 29th, the 28th or the 27th... Let's just say uh, let's go to December the 3rd. The parties agreed to take sixty (60) days to prepare and submit their proposed Findings of Fact and Conclusions of Law. The Court ordered that the ,proposals be -3- submitted on December 3, 2004. The parties did not agree to extend the time within which the court had to rule upon the case. The Court did not enter an order or entry on the docket sheet that indicated that such an agreement had been reaChed between the parties. The trial ended on September 27, 2004. Indiana Trial Rules 53.1 and 53.2 sets out that the court was obligated to rule upon the case within ninety (90) days of the close of evidence. December 26, 2004 was the ninetieth day from the close of evidence. The trial court did not rule upon the case prior to December 26, 2004. The trial jUdge had twenty (20) days from_the date the parties submitted their proposed findings of fact and conclusions of law to enter judgment. On February 18, 2005 the City filed their "Praecipe for Withdrawal of Submission And Appointment of A Special Judge" with the Clark Circuit Court Clerk, Keith Groth. The City filed their motion to withdrawal the case one hundred and forty-four days (144) after the close of evidence. The trial court had not ruled as of the date of the filing of the praecipe. On February 22, 2005 the Clark Circuit Court Clerk notified the Indiana Supreme Court of its determination. The Clerk found that the case should be withdrawn from the trial court and a Special Judge should be appointed by the Supreme Court. · On April 12, 2005 the Supreme Court entered the following order: Comes now the Clerk of the Clark Superior Court, and pursuant to Ind. Trial Rule 53. ~, notifies this Court that he has determined that the Honorable Terrence J. Cody, Special Judge in this case, has delayed ruling in this matter. And this Court, being duly advised, now finds that jurisdiction of this case is withdrawn from the Honorable Terrence J. Cody and a special judge should be appointed to hear this matter in the Clark Superior Court -4- pursuant to T.R. 53. ~. IT IS, THEREFORE, ORDERED that jurisdiction of this case is withdrawn from the Honorable Terrence J. Cody and the Honorable Cecile A. Blau is appointed as special judge and has vested jurisdiction to hear this matter in the Clark Superior Court..Pursuant to Ind. Trial Rule 79(K), an oath of office is not required. The Honorable Terrence J. Cody is hereby directed to file a written report with this Court pursuant to T.R 53.~(F) The Clerk of this Court is directed to forward notice of this Order to the Hon, Terrence J. Cody, Floyd Circuit Court, 3~ West First Street, ft4f7, New Albany' IN 47~50-5856; to the Hon. Daniel F. Donahue, Clark Circuit · Court, 50~ East Court Avenue, Jeffersonviile, IN 47~30-4029; and to the Clerk of the Clark Superior Court. The Clerk of the Clark Superior Court is directed to forward notice of this Order to all parties of record in the case below. The Honorable Cecile Blau scheduled a pre-trial conference in the matter to be commenced on April 25, 2005 at 1'00 p.m. Bridgeview appeared at the pre-trial conference and filed objection to the trial court acting upon the case based upon its filing of this Motion to Reconsider. Al I!. Le_aal Argument the Su.p__~me Court's Findi_p_g Terrence C~ Bridgeview has waived its right to object to the Indiana Supreme Court's findings in its April 12, 2005 Order appointing Judge Cecile Blau as Special Judge pursuant to Indiana Trial Rule 53.1 and 53.2. The appropriate method of contesting the City's praecipe is found in the Indiana Rules of Court, Rules of Procedure for Original Actions, Writs of Mandate and Prohibitions. If Bridgeview wanted to object to the Clark Circuit Court Clerk's granting of the City's praecipe, Bridge¥iew should have flied an Original Action with the Supreme Court and challenged the City's allegations. -~- The case law supports the City's argUment regarding the remedy available to Bridgeview if it believed the County Court Clerk made an inappropriate decision in response to the request for removal. The cases acknowledge that the decision to either find for against the movant rests with the clerk. However, if the non-movant objects the remedy is to pursue a Writ . , of Mandamus from the Indiana Supreme Court. , The Supreme Court addressed this issue in State Ex. Rel. Koppe v. Cass Circuit Court, 723 N.E.2d 866 (In. 2000). The Koppe court set out 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." The matter was also dealt with in Strutz v. McNagny, 558 N.E.2d 1 t03 (In. Ct. App. 1990) where the court acknowledge that' "The proper remedy for challenging the denial of a Trial Rule 53.1(E) lazy judge motion is to seek a Writ of Mandate from the Indiana Supreme Court to compel the clerk to give notice and disqualify the judge." Citing Weber v. Electrostatic Engineering, Inc.. 465 N.E.2d 1152 (In. Ct. App. 1984) The matter before the court can be distinguished from Koppe and Strutz. In Koppe and Strutz the parties were appealing the clerk's denial of their request to withdraw the case from the trial judge. Here, the non-movant objects to the Supreme Court granting the request to withdraw. Regardless, logic would diCtate that the objection to the granting of such a request would require intervention by the Supreme Court pursuant to those rules set out in the Original Action procedures established by this court. Bridgeview's request to reconsider the finding of the Supreme Co.uA should be -6- denied inasmuch as Bridgeview's waived its right to object to the Supreme Court's findings when it failed to file an Original Action objecting to the City's Praecipe to Withdraw the matter from the Trial Court. Bm Indiana Trial Rule 53.2 R__~_~q~ires that the Time for Calculating the 90 Days ~he Close of the Submission of Evidence Bridgeview asserts that the ninety.(90)day time frame did not begin to run until the date that the parties submitted their proposed findings of fact and conclusions of law. Bridgeview contends that the court had 90 days from December 6, 2004 to decide the case. Bridgeview correctly asserts that the parties agreed to submit their proposals sixty (60) days from the date that both parties rested their respective cases. However, the parties agreement to a date upon which to submit their proposed findings and conclusions does not, standing alone, extend the time within which the court has to rule upon the case. In Lies v. Ortho Pharmaceutical Corp., 259 N.E.2d 192 (In. 1972) the Plaintiff filed a motion to'correct errors upon receipt of an adverse decision from the court. The parties filed various briefs after the motion to correct errors was entered upon the chronological case summary. The Plaintiff filed a T.R- 53.1 motion thirty (30) days after the date he filed his motion to correct errors asserting that the matter should be withdrawn from the trial judge. The Defendant, in an Original Action, objected to the Clerk's determination that -7- the case should be withdrawn from the original trial judge. The Defendant contended that the fact that the parties filed post-trial briefs acted to extend the time within which the court had to rule upon the motion to correct errors. The Supreme Court disagreed. The court stated that: "The ~filing of briefs or memoranda relative to motions does not in itself extend the time permitted the trial judge under Trial Rule 53.~(A) for ruling upon said motion. If additional time is likely to be required for proPer briefing and consideration, counsel should agree under Trial Rule 53.1(A)(3), and the ruling date should be extended to a date certain by order book entry in accordance with-such agreement. Otherwise, the trial judge has no alternative but to rule, to the best of his ability, without full consideration." This logic was further articulated in Koppe-' In Koppe the court heard the parties divorce action to its conclusion. Prior to the presentation of evidence the wife, pursuant to T.R. 52, asked-the court to enter special findings of fact and conclusions of law. At the close of the evidentiary hearing the judge directed the parties to file proposed findings of fact and conclusions of law within twenty days. The parties complied with the court's request. _ . Ninety-One (9i) days after the hearing the wife filed a praecipe asking the cterk of.the courts to withdraw the case from the judge asserting undue delay. The court clerk disagreed with the wife's calculations. The clerk found that the case had not been delayed more than 90 days and notified the parties of that determinatiOn. The clerk opined that the time within whiCh the court had to rule wes extended by the twenty (20) days during which the parties were preparing their · proposed findings of fact and conclusions of law. The Supreme Court disagreed. The Supreme Court stated that: "The record shows that the respondent judge, with counsel for both parties -8- 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." Koppe, Ibid. In the matter before the court it is undisputed that counsel for.the City requested, prior to trial, the entry of findings of fact and conclusions of law. The court granted this motion and at the close of evidence it is undisputed that the parties and the court entered into a dialogue about the time frame within which the parties would take to submit their proposals.' The record reveals that the City's attorney recommended that the parties submit their proposals sixty (60) days from the date of the close of evidence. The record sets out clearly that the parties agreed that the submissions would be sixty (60) days from September 27, 2004. The record does not demonstrate that the parties agreed to extend the time within which the court had to rule upon the case. There is no evidence or indication that the parties agreed pursuant to Indiana Trial Rule 53.1(A)(3) nor is there evidence that "the ruling date (was)...extended to a date certain by order book entry in accordance with such agreement." Lies, ibid. In Dem°nd v. Demond~ 706 N.E.2d 566 (in. Ct. App. 1999), subsequent to a divorce trial both the husband and wife filed respective motions to correct errors. The trial judge held a hearing upon the competing motions and took both under advisement. At the conclusion of the hearing the trial court requested that. the parties agree to ., an extension of time for the trial court to rule. The Wife refused to agree to the -9- extension of time. The judge, eight days after the hearing, ordered the parties to submit _. proposed orders on a date certain. This date was ten (10) days after the conclusion fo / the hearing. . The proposed orders were submitted timely by both the husband and wife. The Wife, thirty two (32) days after the conclusion of the hearing, filed a "Lazy Judge" motion requesting the matter be withdrawn from the trial judge. The Court of Appeals in Demond concluded that the trial judge lost jurisdiction over the matter thirty (30) days after the close of the hearing. The.act of requesting submissions and time to prepare those does not automatically extend the time within which the court has to rule upon a matter. Instead, the court is bound to adhere to the mandatory time frames set forth by the rules unless the parties clearly agree upon the record to extend the time and/or the trial court secures an extension pursuant to those provisions provided in the rule. Bridgeview cites Oswald v. Paston, 509 N.E.2d 217 (in. Ct. App. 1987) in support of their argument. Bridgeview contends that the parties agreed to submit their proposed findings and conclusions within sixty (60) days and this act alone extended the time frame mandated by the trial rule. Oswald is clearly distinguishable from the current matter before the court, in Oswald the court continued the trial for a period of ten (10) days. The court directed the parties to submit their trial briefs within this ten (10) day period. The "continuance" of the trial acted as a mechanism that kept the record open for the submission of additional evidence. In Oswald the case Was not submitted to the court for the purpose of ruling until the court received the trial briefs ten (10) days after the court heard oral argument and testimony. The case concluded upon the submission of the trial briefs. and the evidence was "closed" upon the submission of the briefs. Oswald does not stand for the proposition that the time within which the court is obliged to rule is automatically extended by an equal number of days within which the court orders or permits the pa~ies to submit briefs, findings or proposed orders. Instead, Oswald makes it clear that the time frame within which the court is obliged to rule does not begin until the evidence is closed. In the matter before the court the evidence was closed on September 27, 2005 when the City rested its case. The court did not "continue" the case for a period of siXty (60) days within which time the parties were to submit proposed findings of fact and conclusions of law. Rather, the case ended and the matter was submitted to the court for ruling. III. Conclusion Bridgeview's motion to reconsider should be denied-..Bridgeview failed to timely raise its objection to the City's praecipe for withdrawal of the case from the trial judge. Bridgeview's objection to the City's praecipe should have been raised in an Original Action proceeding brought at the time that the City filed it's praecipe. Bridgeview's argument that the time frame within which the court had to rule upon the trial was extended because the parties agreed to submit their proposed findings of fact and conclusions of law sixty (60) days after the trial is erroneous. The trial rules and the case law provide 'that the only method of extending the time within which the trial court has to rule upon the merits of a case is by a clear agreement