Trojnar v. Trojnar

676 N.E.2d 1094, 1997 Ind. App. LEXIS 97, 1997 WL 107153

• Court: Indiana Court of Appeals
• Decided: March 12, 1997
• Docket: No. 45A03-9609-CV-333
• Status: Published

Opinions

OPINION

HOFFMAN, Judge.

Appellant-respondent Anthony Trojnar appeals the trial court’s ruling that he failed to timely strike a panel member thereby forfeiting his right to a change of judge and the court’s rulings denying his requests for a continuance of the proceedings on contempt for failure to pay child support. The facts relevant to the appeal are recited below.

In August 1989, the parties’ marriage was dissolved. In August 1992, an order was entered increasing Anthony’s child support obligation. In January 1994, Anthony filed motions for a change of judge and for modification of support. The trial court denied the motion for a change of judge and then denied the motion for modification. Anthony appealed.

On October 10, 1995, this Court issued a decision reversing the trial court’s denial of the motion for a change of judge and finding the trial court was without jurisdiction to act on the motion for modification. Trojnar v. Trojnar, 656 N.E.2d 287, 290 (Ind.Ct.App.1995). The Chronological Case Summary (CCS) noted that the certified opinion from the supreme court was received on the same date, although other entries on separate pages of the CCS suggest receipt of the certified opinion on other dates.¹

In an order dated December 4, 1995, the special judge named a panel. The order naming the panel was received in the office of counsel for Anthony on December 19, 1995. On December 20, 1995, counsel prepared a document striking one member of the panel and mailed the document to the Clerk of the Lake County Courts. The document was received by the court on December 21,1995.

Carole then filed her motion to strike Anthony’s motion striking a panel member because she alleged the striking was untimely, pursuant to Ind. Trial Rule 79(F). Anthony responded noting that he could not comply with the 14-day deadline for striking as provided in T.R. 79(F) because notice of the order naming the panel was not mailed until the fourteenth day after the order. The special judge found that Anthony failed to strike in a timely manner and resumed jurisdiction as provided in T.R. 79. Anthony then requested reconsideration and filed for a motion for relief from the order pursuant to inter alia Ind. Trial Rule 72. The request was denied. Anthony filed a praecipe.

Anthony filed a request for certification allowing an interlocutory appeal of the ruling regarding the change of judge. Anthony also moved for a continuance of the request for a contempt citation filed by Carole. In March 1996, the special judge granted the motion for continuance and granted the certification upon Anthony’s posting of a cash bond in the amount of $7,000. The record does not disclose payment of the bond.

On June 24, 1996, the court entered an order setting the contempt hearing for July 8, 1996 with the notation that the date had been coordinated with all parties. On June 28, 1996, premised upon Anthony’s herniated disc requiring back surgery on July 16,1996, counsel for Anthony filed a motion requesting a continuance. The motion was denied and the hearing date was reaffirmed.

At the July 3, 1996 hearing, Anthony’s counsel, without Anthony’s presence, again requested a continuance. Counsel noted that Anthony underwent back surgery on July 2, 1996. The continuance was denied. After a hearing, the special judge found inter alia that Anthony was in arrears in the approximate amount of $26,800; that Anthony should be incarcerated in the Lake County Jail for a period of 60 days; and that Anthony should be responsible for Carole’s attorney’s fees. This appeal ensued.

As restated, Anthony presents two issues for review:

(1) whether the special judge erred in determining that Anthony did not timely strike from the change of judge panel named, and by not granting relief based upon the date of notice of the order; and

(2) whether the trial court abused its discretion in failing to grant Anthony a continuance when he was hospitalized at the time of the July 3, 1996 hearing.

Initially, Anthony contends that the special judge erred in finding that he failed to timely strike a panel member from those named. The parties do not address the timeliness of the appeal regarding the change of judge. Ind. Trial Rule 75(E) and Ind. Appellate Rule 4(B) specifically require an interlocutory appeal of an adverse decision regarding preferred venue under T.R. 75. See Bowyer v. Vollmar, 505 N.E.2d 162, 165-167 (Ind.Ct.App.1987) (issue of preferred venue waived by failure to take timely interlocutory appeal); but cf. Osmulski v. Becze, 638 N.E.2d 828, 831 n. 3 (Ind.Ct.App.1994) (because T.R. 76 not specified in App.R. 4(B) as mandatory, and not judgment on merits, does not require immediate interlocutory appeal).² In Hollingsworth v. Key Benefit Adm’rs, Inc., 658 N.E.2d 653, 655 (Ind.Ct.App.1995), this Court addressed the proper standard for reviewing decisions regarding • transfer of venue pursuant to T.R. 75. In so doing, the immediate nature of the appellate process was noted:

As such, the trial court’s grant or denial of the motion is an interlocutory order because it is one ‘made in the progress of the cause, requiring something to be done or observed, but, not determining the controversy.’ [Citation omitted].

Id. Implicitly, the decision recognized the inherent infirmity in allowing a matter to proceed on the merits only to be held for naught months or years after the ruling on venue. Such is the case in a T.R. 76 context.

At the time of an adverse ruling under T.R. 76, the parties must perfect an appeal. Myriad reasons, including judicial economy and fairness to the parties, dictate that parties may not save an issue which would render all subsequent action moot, allowing litigation on the merits of a claim to the point of an adverse ruling and then appeal matters outside of the merits. To hold otherwise would be to condone a collateral attack on the judgment.³ Accordingly, Anthony’s failure to perfect the appeal regarding the change of judge constitutes waiver.

Next, Anthony contends that the trial court erred in failing to grant his requests for a continuance based upon his herniated disc and hospitalization. The decision whether to grant or deny a continuance lies within the sound discretion of the trial court and will not be reversed unless the court abused that discretion. Royalty Vans v. Hill Bros. Plumbing, 605 N.E.2d 1217, 1220 (Ind.Ct.App.1993). An abuse of discretion occurs when the court reaches a conclusion which is clearly against the logic and effect of the facts and the reasonable and probable deductions to be drawn therefrom. Id.

The facts here disclose that Anthony had been granted a continuance of the cause; that the continuance date of July 3,1996 was pre-arranged; that Anthony then requested a continuance based upon his assertion that he would need back surgery in mid-July; and that on July 3,1996, counsel appeared asserting on Anthony’s behalf that Anthony underwent emergency back surgery on July 2, 1996. Anthony’s verified motions for continuance were not verified by Anthony. It is also noteworthy that Anthony had failed to provide ordered discovery regarding his income and assets and that he was found to be more than $26,000 in arrears in child support. The trial court’s decision is not clearly against the logic and effect of the facts and inferences to be drawn therefrom. No abuse of discretion occurred by the failure to grant Anthony a continuance.

There being no finding of reversible error, the judgment of the trial court is affirmed.

Affirmed.

RUCKER, J., concurs. STATON, J., dissents with separate opinion.

1 . Entries dated "10-10-95” through "3-6-96” (with the month for a later entry obliterated by the hole punch to create the record) appear on the CCS page marked as number 4. The following two pages purport to cover the time periods between "11-28-95” through “2-28-96” and "2-1-96” through "3-6-96.” The CCS entries then begin on "3-11-96.” The pages after page 4, and several pages prior to page 4, are not marked with page numbers. [R. 7-19] Overlapping and conflicting entries have been made.

2 . The Osmulski court found in dicta within a footnote that the absence of a reference to T.R. 76 within App. R. 4(B) operated to allow an appeal after the conclusion of the case on the merits. In Osmulski, resolution of the T.R. 76 issue did not alter the result.

3 . The dissent’s myopic view of the law wotdd lead to an absurd result. Allowing appeal of a change of judge ruling after the merits of the cause would allow an aggrieved party to wait through protracted proceedings including discovery, preliminary hearings, and trial to nullify all action after the ruling. Reversal of a cause after the decision on the merits based upon a procedural matter is tantamount to "two bites at the apple.” A party displeased with the judgment on the merits could have a second chance by saving an appeal ostensibly based upon the adverse change of judge ruling, but in reality wiping the slate clean on the merits as well.

Such is the case here. Anthony's appeal on the merits would not yield reversal; however, he could wipe the slate clean, and further stall his child support responsibilities by attacking the change of judge ruling after intervening proceedings including some from which he benefited.

Far from creating new law as asserted by the dissent, our construction of the trial and appellate rules is mandated by our basic tenets of law and judicial disdain for waste. The dissent does not question the basis for the rule in T.R. 75 matters, and does not offer explanation as to how the same type of ruling in T.R. 76 proceedings should render a different result. Clearly, the explicit rule regarding interlocutory appeal of an adverse T.R. 75 ruling applies with equal force to T.R. 76 matters. Suffice it to say, the mandatory interlocutory appeal evolved to prevent parties from trumping judgments on the merits in the manner attempted here, and “two bites at the apple” has never been the law.