Ken Kocinski v. Jane Cotton, Eighth Street Rentals, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 8, 2018
• Docket: 48A02-1707-MI-1639
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 08 2018, 9:07 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Jon L. Orlosky Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ken Kocinski, January 8, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1707-MI-1639 v. Appeal from the Madison Circuit Court Jane Cotton, The Honorable Angela Warner Eighth Street Rentals, LLC Sims, Judge Appellee-Plaintiff Trial Court Cause No. 48C01-1706-MI-0478

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 1 of 7 [1] Ken Kocinski and Jane Cotton own properties adjacent to each other. Around

May 2017, it became necessary for Cotton to complete repairs to her property

that required workers access her property via Kocinski’s property. Informal

negotiations regarding Cotton’s use of Kocinski’s property broke down, and

Cotton sought legal remedy.

[2] Kocinski appeals the trial court’s “Order Extending Emergency Injunction and

Temporary Restraining Order and Denial of Change of Judge.” (App. Vol. II

at 8.) He presents six issues for our review, which we restate as:

1. Whether the trial court erred when it treated Cotton’s motion for emergency injunction and temporary restraining order as a filed and pending pleading under Indiana Trial Rule 7;

2. Whether the trial court erred when it granted Cotton’s motion for emergency injunction ex parte;

3. Whether the trial court erred when it granted Cotton’s motion for emergency injunction and temporary restraining order without findings as required by Indiana Trial Rule 65(B)(2);

4. Whether the trial court erred when it granted Cotton’s motion for emergency injunction and temporary restraining order without first requiring Cotton to post a security bond as required by Indiana Trial Rule 65(C) or requiring Cotton to submit a verified complaint or affidavit in support of her motion;

5. Whether the trial court erred when it extended its emergency injunction and temporary restraining order ex parte and despite allegations a belated bond had not been posted; and

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 2 of 7 6. Whether the trial court erred in denying Kocinski’s motion for change of judge pursuant to Indiana Trial Rule 76(C).

[3] We conclude the issues presented are moot, and we decline to review the matter

under the public interest exception. Therefore, we dismiss the appeal.

Facts and Procedural History [4] On June 9, 2017, Jane Cotton and Eighth Street Rentals (collectively,

“Cotton”) filed a motion for emergency injunction and temporary restraining

order against Kocinski. In the process of rehabilitating the property adjacent to

Kocinski’s property, she discovered a significant mold problem in the north

wall of the property, which abuts Kocinski’s property. She stated in her motion

“the only way to get access to the north wall is to enter onto the property

belonging to Ken Kocinski, Defendant.” (App. Vol. II at 15.) Cotton requested

the trial court grant the emergency injunction and temporary restraining order

“allowing structural engineers, Miles Construction and Terminix, their agents

and employees, to enter upon the property of Defendant, to drive construction

equipment on the property of [D]efendant, to bring construction materials onto

the property of [D]efendant between June 12, 2017, and June 23, 2017[.]” (Id.

at 16.)

[5] Kocinski bought the property next to Cotton’s at a tax sale. Cotton indicated in

her motion, “It appears that the lot is not being used for any purpose. It is an

empty, vacant, gravel lot.” (Id. at 15.) Kocinski refused to allow Cotton access

to the lot “in the absence of a $5,000 payment.” (Id.) In his response to

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 3 of 7 Cotton’s motion, Kocinski argued “regardless of how Plaintiffs choose to

characterize the Defendant’s property, it is the Defendant’s property and the

Defendant has an absolute right to maintain his property and keep others from

trespassing on his property.” (Id. at 20.) Kocinski also asserted Cotton’s

request for emergency injunction and temporary restraining order “is not a

remedy available at law . . . and the court has no authority to enter any order

sanctioning a continuation of [Cotton’s alleged trespass on Kocinski’s

property].” (Id.) Kocinski urged the trial court to deny Cotton’s motion

because the motion “wholly fail[s] to comply with Indiana trial rules and

seek[s] an unlawful order from the court.” (Id.)

[6] On June 9, 2017, the trial court granted Cotton’s motion and ordered the

specific parties listed in her motion be allowed to enter Kocinski’s property

between June 12 and June 23, 2017. The order also stated, “If Defendant

requests a security [deposit] be posted then a hearing shall be held to address

security issues.” (Id. at 7.)

[7] On June 12, 2017, Kocinski filed a motion to vacate the court’s order

immediately, arguing Cotton’s motion did not comport with several trial rules,

she did not “initiate a recognizable claim that allows the court to exercise

jurisdiction,” (id. at 24), and Kocinski’s due process rights were violated when

the trial court did not hold a hearing on Cotton’s motion and required him to

request a hearing to obtain a security deposit for any damages incurred from

Cotton’s use of his property. Kocinski filed a motion to correct error with

identical arguments the same day.

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 4 of 7 [8] The trial court held a hearing on Kocinski’s motions on June 15, 2017. The

trial court denied Kocinski’s motions and set “a security bond in the amount of

$3500.00 to be posted by Plaintiff.” (Id. at 30.) On June 20, Kocinski filed a

motion for change of judge pursuant to Indiana Trial Rule 76(B). The same

day, Cotton filed a motion to extend the trial court’s emergency injunction and

temporary restraining order because the “structural engineer has identified

additional problems with the wall that need to be repaired. Because of this, the

repair will take longer than originally anticipated.” (Id. at 32.) Cotton

requested an extension until July 7, 2017, and indicated she was posting the

bond as ordered by the trial court. Kocinski filed his response to Cotton’s

motion on June 20, reiterating his earlier arguments.

[9] On June 23, 2017, Cotton filed a notice to the court indicating she “will only

need to the end of the day, Tuesday, June 27, 2017, to complete all repairs to

[Cotton’s property] and to clean up and vacate the lot owned by Defendant.”

(Id. at 35.) On June 23, 2017, the trial court granted Cotton’s request for an

extension until June 27, 2017. In the same order, the trial court stated:

The Court hereby denies Defendant’s Motion for Change of Judge. Trial Rule 76(C) requires a motion be filed within 10 days of the issues being closed on the merits. Plaintiff filed her original motion on June 9, 2017, Defendant filed a response to said motion on June 9, 2017, and the Court granted relief on that same date. The change of judge was not filed until June 20, 2017, which is 1 day over the 10 day requirement as set forth in Trial Rule 76(C).

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 5 of 7 (Id. at 9.) On June 23, 2017, Kocinski asked the court to declare its June 23

order as a final order pursuant to Indiana Trial Rule 58. The trial court

declared its June 23 order a final order on July 13, 2017.

Discussion and Decision [10] We first note Cotton did not file an appellee’s brief. When an appellee does not

submit a brief, we do not undertake the burden of developing arguments for

that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002).

Instead, we apply a less stringent standard of review and may reverse if the

appellant establishes prima facie error. Id. Prima facie error is “error at first sight,

on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d

216, 221 (Ind. Ct. App. 2006).

[11] “An issue becomes moot when it is no longer live and the parties lack a legally

cognizable interest in the outcome or when no effective relief can be rendered to

the parties.” Ind. High Sch. Athletic Ass’n, Inc. v. Durham, 748 N.E.2d 404, 410

(Ind. Ct. App. 2001). “When the principal questions in issue have ceased to be

matters of real controversy between the parties, the errors assigned become

moot questions and the court will not retain jurisdiction to decide them.” Id.

Nevertheless, we may decide an arguably moot case on its merits if it involves

questions of great public interest. Annexation Ordinance F-2008-15 v. City of

Evansville, 955 N.E.2d 769, 776 (Ind. Ct. App. 2011), trans. denied. “Typically,

cases falling in the ‘great public interest’ exception contain issues likely to

recur.” In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002).

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 6 of 7 [12] The trial court granted to Cotton an emergency injunction and temporary

restraining order that were set to expire at “11:59 p.m. on June 27, 2017.”

(App. Vol. II at 9.) There is no indication the work went beyond that date or

that the emergency injunction and temporary restraining order was extended

beyond that date, and Kacinski does not argue that he was deprived of any

property right after that date. Therefore, the order Kocinski wishes to challenge

is no longer “live” and we cannot offer Kocinski any effective relief. See

Durham, 748 N.E.2d at 410 (“An issue becomes moot when it is no longer live .

. . or when no effective relief can be rendered to the parties.”).

[13] Neither are we persuaded by Kosinski’s assertion that we should entertain his

appeal under the public interest exception to the mootness doctrine. See City of

Evansville, 955 N.E.2d at 778 n.4 (“While we fully understand that this matter

of great public interest to the Remonstrators, the public interest exception as

contemplated by the law involves a public interest to the greater general

public.”).

Conclusion [14] Because the issues presented are moot, we dismiss Kocinski’s appeal.

[15] Dismissed.

Barnes, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018 Page 7 of 7