Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE DOUGLAS M. GRIMES NATIONAL EDUCATION Douglas M. Grimes, PC ASSOCIATION–SOUTH BEND: Gary, Indiana ERIC M. HYLTON JAMES B. CHAPMAN II Benesch, Friedlander, Coplan and Aronoff, LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE SOUTH BEND COMMUNITY SCHOOL CORP.: ANTHONY W. OVERHOLT MAGGIE L. SMITH Frost Brown Todd, LLC Indianapolis, Indiana FILED May 25 2012, 9:24 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
VICTORIA THOMAS, ) ) Appellant-Petitioner, ) ) vs. ) No. 71A03-1107-MI-383 ) NATIONAL EDUCATION ASSOCIATION– ) SOUTH BEND and SOUTH BEND ) COMMUNITY SCHOOL CORPORATION ) ) Appellees-Respondents. ) )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT The Honorable Michael G. Gotsch, Judge Cause No. 71C01-1012-MI-173 May 25, 2012 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Victoria Thomas (“Thomas”) filed a petition in St. Joseph Circuit Court seeking
judicial review of the decision made by the Indiana Education Employment Relations
Board (“the IEERB”) which concluded that the National Education Association – South
Bend (“the NEA–SB”) did not violate its duty to fairly represent Thomas in her grievance
against her employer, the South Bend Community School Corporation (“the School
Corporation”). Thomas subsequently filed a praecipe to withdraw the case from the trial
court under Indiana Trial Rule 53.1, alleging that the court had failed to timely set a
hearing on Thomas’s motions and failed to timely rule on Thomas’s motions. After
Thomas’s Rule 53.1 request was denied, she filed a motion to stay the proceedings to
allow her time to file a petition for a writ of mandamus with the Indiana Supreme Court.
The trial court subsequently denied Thomas’s motion to stay and ultimately affirmed the
IEERB’s decision. On appeal, Thomas presents three issues, which we reorder and
restate as:
I. Whether Thomas was entitled to have the case withdrawn from the trial court because of its alleged failure to timely rule on her motions and/or set her motions for a hearing;
II. Whether the trial court erred in denying Thomas’s motion to stay the proceedings in order to allow her time to file a petition for a writ of mandamus and prohibition in the Indiana Supreme Court; and
III. Whether the trial court erred in holding a hearing on all pending motions.
We affirm.
2 Facts and Procedural History1
Thomas was first employed by the School Corporation as a teacher in 1979. By
the beginning of the 2003-2004 school year, she was an assistant principal. At the start of
the second semester of that school year, she was removed from her position as assistant
principal and assigned as a teacher at the Jackson Intermediate School (“Jackson”). After
being assigned as a teacher at Jackson, Thomas became a member of the NEA–SB.
In the spring of 2004, Thomas was informed that there was an opening for a
special education teacher at Jackson in the upcoming 2004-2005 school year. Thomas
and Ramona Luczkowski (“Luczkowski”) both applied for this position. Luczkowski
was a special education teacher at Jackson who had been informed that she was being
displaced from her position for the upcoming school year. Even though Thomas had
more seniority in the School Corporation, Luczkowski was given the job.
Based on this, the NEA–SB filed a grievance on Thomas’s behalf, which was
denied by the School Corporation. After further investigation, the NEA–SB determined
that the special education position should have never been posted as open, based on their
reading of a certain provision in the applicable collective bargaining agreement. This
provision provides that “[a]ny teacher whose position is eliminated and the position is
reinstated within ten (10) school days after school starts in the following school year shall
be given two (2) school days to exercise an option to return to that position.” Appellant’s
App. p. 7. The NEA–SB determined that because Luczkowski had been displaced from
1 Our recitation of the underlying facts of this case comes from the trial court’s findings of fact and conclusions of law. Thomas makes no argument on appeal that these facts are erroneous.
3 her position as a special education teacher at Jackson and then the position was restored,
Luczkowski was entitled to be offered the position first. In other words, the position
should never have even been listed as an open position at all. The NEA–SB therefore
declined to further pursue Thomas’s grievance against the School Corporation. Thomas
did not further pursue her grievance and subsequently took a teaching position at another
school in the School Corporation with no loss of pay as a result of not getting the special
education position at Jackson.
Thomas then filed a complaint before the IEERB, alleging that the NEA–SB
violated its duty to fairly represent Thomas. On November 4, 2010, the IEERB issued an
order denying Thomas’s request for relief. Undaunted, Thomas filed a petition for
judicial review in St. Joseph Circuit Court on December 6, 2010. Both the School
Corporation and the NEA–SB then filed motions to dismiss Thomas’s petition for judicial
review, which the trial court subsequently denied. The NEA–SB filed an answer to
Thomas’s petition for judicial review on February 2, 2011, and the School Corporation
did likewise on February 11, 2011.
On February 22, 2011, Thomas filed motions to strike the answers filed by the
NEA–SB and the School Corporation. On March 2, 2011, the NEA–SB filed a motion
for an extension of time to respond to Thomas’s motion to strike, which the trial court
granted, giving the NEA–SB until March 29, 2011 to respond. On March 7, 2011, the
School Corporation filed a motion for extension of time to respond to Thomas’s motion
to strike, which the trial court granted, giving the School Corporation until March 21,
2011 to respond. The School Corporation then filed its response to Thomas’s motion to
4 strike on March 21, 2011, and the NEA–SB filed its response to Thomas’s motion to
strike on March 28, 2011. Thomas then filed replies to these responses on March 30,
2011.
On May 9, 2011, the NEA–SB filed a motion for summary judgment based on the
agency record and requested a hearing on this motion.2 The trial court then entered the
following order:
The Court, having received Respondent National Education Association – South Bend’s Motion for Summary Judgment on the Agency Record and Request for Oral Argument, hereby sets this matter for oral argument on the 1st Day of June, 2011, at 10:00 AM. SO ORDERED this 9[th] day of May, 2011.
Appellant’s App. p. 39.
On May 19, 2011, Thomas filed a praecipe that stated in relevant part:
Comes now Petitioner Victoria Thomas (“Thomas”), by counsel, Douglas M. Grimes, and files Praecipe pursuant to Indiana Trial Rule 53.1(A) in the following words: 1. Thomas filed Motion to Strike Respondent NEA-South Bend’s Answer and Affirmative defenses in the caption case on 22nd day of March, 2011. 2. The court has failed to set the motion for hearing within thirty (30) days after it was filed. 3. The court has failed to rule on the motion within thirty (30) days after it was filed. Wherefore, Petitioner requests that the Clerk of the court enter the date and time of the filing of this Praecipe in the Clerk’s Praecipe book, record the filing in the Chronological Case Summary under the case, and determine whether or not a hearing has been delayed and whether or not a ruling has been delayed beyond the time limits set forth under Trial Rule 53.1.
2 The School Corporation subsequently joined in and adopted this motion as its own.
5 Appellant’s App. p. 40. Thomas also filed a similar praecipe with regard to his motion to
strike the School Corporation’s answer. Id. at 43-45.
Upon receipt of Thomas’s praecipes, the trial court’s administrator telephoned
Thomas’s counsel and informed him of the “usual and customary practice” of the court of
setting “global” hearings, i.e. that the hearing scheduled for June 1, 2011 would be on all
pending motions, not just the motion for summary judgment. Then, on May 27, 2011, the
trial court clerk issued a notice informing the parties that Thomas’s Trial Rule 53.1
praecipe had been denied. Appellant’s App. p. 50.
Thomas filed an objection to the court setting a hearing on the motion for
summary judgment and requested a stay of “all Proceedings under this case to allow
Petitioner time to file a Petition for Writ of Mandamus and or Prohibition in the Indiana
Supreme Court on the grounds that the [trial] Court lacks jurisdiction to hear any further
proceedings in this case[.]” Id. at 48. Then, on May 31, 2011, Thomas filed a request for
a certified record of proceedings in order to allow Thomas to file a petition for writ of
mandamus in the Indiana Supreme Court.
On May 31, 2011, the trial court administrator notified Thomas’s counsel by way
of a voice mail message that, at the June 1 hearing, the trial court would consider all
pending motions, including Thomas’s request for a stay. On June 1, 2011, the trial court
held its scheduled hearing. Although counsel for the NEA–SB and the School
Corporation appeared, Thomas did not appear. The trial court’s secretary then attempted
to contact Thomas’s counsel at his office and left yet another voice mail message that the
court and opposing counsel were in court awaiting his appearance. “When an attorney or
6 a litigant fails to appear, it is the usual and customary practice of the St. Joseph Circuit
Court to afford counsel and parties a fifteen-minute grace period before proceeding with
a hearing.” Appellant’s App. p. 10. The trial court therefore waited for fifteen minutes,
and when Thomas’s counsel still failed to appear, proceeded with the hearing. Minutes
later, the trial court’s secretary brought a message to the court that Thomas’s counsel had
received the court’s messages but indicated that he did not intend to appear because he
believed the trial court had no jurisdiction. The court noted on the record that the trial
court clerk had denied Thomas’s Trial Rule 53.1 request and determined that it
maintained jurisdiction. The court then conducted a hearing on all pending matters and
denied Thomas’s motion to strike the answers of the NEA–SB and the School
Corporation and further concluded that Thomas’s petition for judicial review should be
denied, thus affirming the decision of the IEERB. The trial court entered findings of fact
and conclusions of law to this effect on June 20, 2011. Thomas filed a notice of appeal
on July 18, 2011, initiating the present appeal.
In the interim, Thomas had filed a verified petition for writ of mandamus and
prohibition in the Indiana Supreme Court, seeking a writ requiring withdrawal of the case
from the trial court pursuant to Indiana Trial Rule 53.1. On July 13, 2011, our supreme
court issued an order which stated in relevant part:
Relator, by counsel, has filed a verified petition for writ of mandamus and prohibition and other application papers under the Original Action Rules. Relator seeks a writ requiring withdrawal of her case from the trial court (“court”) pursuant to Indiana Trial Rule 53.1, based on the court’s alleged failure to rule timely on, or timely set for hearing, Relator’s motion to strike the answer and affirmative defenses filed by the National Education Association—South Bend (hereinafter “NEA–SB”), one of the
7 respondents in the proceeding below. Relator seeks a writ requiring the clerk to withdraw the case below from the court and to transfer it to the Indiana Supreme Court for appointment of a special judge. A writ issued under the Original Action Rules is an extraordinary remedy, viewed with extreme disfavor. State ex rel. Goldsmith v. Superior Court of Marion County, 463 N.E.2d 273, 275 (Ind. 1984). A writ will not issue unless the relator has a clear and unquestioned right to relief. State ex rel. Woodford v. Marion Superior Court, 655 N.E.2d 63, 65 (Ind. 1995). The record shows that Relator filed her motion to strike on February 22, 2011. On March 2, NEA–SB filed its motion for an extension of time to respond to the motion to strike; the court granted an extension until March 29. On March 28, the NEA–SB filed its response to the motion to strike. On March 30, Relator filed her reply to that response to the motion to strike. The record shows further that on May 9, NEA–SB filed its motion for judgment on the agency record and requested oral argument. Also on May 9, the court issued an order reading, “The Court, having received [NEA– SB’s] Motion for Judgment on the Agency Record and Request for Oral Argument, hereby sets this matter for oral argument on the 1st day of June, 2011, at 10:00 AM.” Relator filed her praecipe on May 17, alleging that the court had failed to rule on, or set for hearing, her motion to strike. On May 27, the court clerk refused to withdraw the case under T.R. 53.1. At the hearing on June 1, the court determined that the motion to strike should be denied and that the NEA–SB’s motion for judgment on the agency record should be granted. In its “Findings of Fact, Conclusions of Law and Judgment” filed June 20, the court addressed the issue of delay and explained, “Based on the common and ordinary practice in the Courts of St. Joseph County, the scheduling of a matter for hearing is considered a global hearing on all pending matters unless the scheduling order specifically provides otherwise. In this case, the scheduling order did not indicate otherwise and the Court considered the hearing scheduled for June 1, 2011, as a global hearing.... [T]he Court, having previously reviewed the Agency Record, and the pending motions of the parties, the Court conducted a hearing on all pending matters.... The Court denied Petitioner’s motion to strike the response of the Respondents, and found that the decision of the Agency should be affirmed.” The order of May 9 scheduling “this matter for oral argument” is unclear. This lack of clarity should have been avoided and easily could have been avoided by specifying whether the June 1 hearing would be on the motion for summary judgment on the agency record only or, instead, would be on “all pending motions” or “all pending matters” in “this case.”
8 On the other hand, the order’s language is not inconsistent with the court’s subsequent explanation that it was setting a global hearing on all pending matters. And this is consistent with the court’s finding that its administrator contacted Relator’s counsel after the praecipe was filed and informed Relator’s counsel of the usual and customary practice of setting global hearings and that the administrator later left a message for counsel before the June 1 hearing indicating that “pending motions” would be considered during the June 1 hearing. The language in the order of May 9 is not inconsistent with the court’s explanation that it was setting a global hearing on all matters, so Relator cannot show a clear entitlement to relief. Because Relator seeks an unquestionably inappropriate remedy under the rules and law governing writs of mandamus and prohibition, this original action is DISMISSED. See Ind. Original Action Rule 2(D). Petitions for rehearing or motions to reconsider are not allowed. Orig. Act. R. 5(C).
Appellant’s App. pp. 31-32 (reproducing order from State ex rel. Thomas v. St. Joseph
Circuit Court, No. 71S00-1107-OR-424 (Ind. July 13, 2011)) (record citations omitted).
I. Trial Rule 53.1
“Commonly called the ‘lazy judge’ rule, Indiana Trial Rule 53.1 provides a
remedy for a litigant whose motion has not been ruled on by the trial judge in the
prescribed amount of time.” Strutz v. McNagny, 558 N.E.2d 1103, 1109 (Ind. Ct. App.
1990), trans. denied. Trial Rule 53.1(A) (2011)3 provides:
In the event a court fails for thirty (30) days to set a motion for hearing or fails to rule on a motion within thirty (30) days after it was heard or thirty (30) days after it was filed, if no hearing is required, upon application by an interested party, the submission of the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge.
3 Trial Rule 53.1 was amended effective January 1, 2012, after Thomas filed her praecipe and the trial court clerk denied the same. We therefore refer to the version of Trial Rule 53.1 that was in effect at the time these matters were decided.
9 The procedure for withdrawing the cause from the trial judge is set forth in Trial
Rule 53.1(E), which states that, “[u]pon an interested party’s filing of a praecipe
specifically designating the motion or decision delayed, the clerk of the court must enter
the date and time of the filing in the clerk’s praecipe book, record the filing in the
chronological case summary, and determine whether a ruling has been delayed beyond
the time limitation set forth under Trial Rule 53.1[.]” T.R. 53.1(E).
If the trial court clerk determines that a ruling on a motion has been delayed
beyond the time in Trial Rule 53.1(A), the clerk must give written notice to the judge and
the Indiana Supreme Court that submission of the cause has been withdrawn effective as
of the time of the filing of the praecipe and record that determination in the chronological
case summary (“CCS”). State ex rel. Crain Heating Air Conditioning & Refrigeration,
Inc. v. Clark Circuit Court, 921 N.E.2d 1281, 1284 (Ind. 2010) (citing T.R. 53.1(E)(2)).
If the trial court clerk determines a ruling has not been delayed, the clerk must notify all
parties of that fact in writing and record that determination on the chronological case
summary. Id. (citing T.R. 53.1(E)(1)). “An original action [in the Indiana Supreme
Court] is the appropriate procedure for enforcing Trial Rule 53.1 when a court clerk
erroneously fails to recognize that a ruling on a motion has been delayed and the case
should be withdrawn after the filing of a praecipe.” Id.
In the present case, Thomas argues that “[b]ecause the court failed for thirty . . .
days to set Appellant’s motions to Strike Answer and Affirmative Defenses for hearing
and Appellant thereafter filed Praecipe for withdrawal of the case from the Judge,
Appellant was entitled to have the case withdrawn from the court.” Appellant’s Br. p. 8.
10 In making this argument, Thomas sets forth the standard of review and a recitation of the
applicable procedural events. Thomas then states simply, “Appellant was entitled to have
the case withdrawn from the Judge under Trial Rule 53.1(A) (B) (C) and (D).” Id. at 9.
Although she cites State ex rel. McIntosh v. Vigo Superior Court, 946 N.E.2d 1160 (Ind.
2011), Thomas wholly fails to explain what this case held or how it is applicable to the
present case. This argument is therefore waived for failure to present a cogent argument.
See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning.”); Gee v. Green Tree
Servicing, LLC, 934 N.E.2d 1260, 1262 (Ind. Ct. App. 2010) (noting that this court will
not act as a party’s advocate and that the failure to put forth a cogent argument acts as a
waiver of the issue on appeal).
Moreover, the order of our supreme court in McIntosh provides no support for
Thomas’s argument. In that case, the court noted that the relator “allege[d] that the trial
court failed to rule on a motion within the time required by Trial Rule 53.1 and that the
trial court clerk failed in her duty to withdraw the case from the trial court for
appointment of a special judge after Relator filed his praecipe.” Id. at 1160. After noting
that none of the parties filed responsive briefs, the court simply issued an order granting
the writ without further analysis. The fact that our supreme court has acted in the past to
issue a writ of mandamus and prohibition in no way explains why Thomas’s praecipe to
remove this case from the trial judge should have been granted under the present facts
and circumstances.
11 Furthermore, our supreme court has already issued its order on this matter and
concluded that a writ of mandamus and prohibition was an “unquestionably inappropriate
remedy” in this case. A similar issue was before this court in Justak v. Bochnowski, 181
Ind. App. 439, 391 N.E.2d 872 (1979). In that case, the appellant claimed that our
supreme court had erred in failing to withdraw the cause from the trial court judge
pursuant to Trial Rule 53.1. Rejecting this claim, we wrote, “It is a fundamental principle
of appellate procedure that this Court has no jurisdiction to review action of our Supreme
Court.” Id. at 448, 391 N.E.2d at 878.
Admittedly, Thomas frames his argument in a slightly different manner, i.e. that
the trial court clerk should have withdrawn the case from the trial court judge rather than
that the Indiana Supreme Court erred in denying his writ of mandamus directing the clerk
to do the same. But the ultimate question is the same—whether the case should have
been withdrawn from the trial court judge under Trial Rule 53.1. The appropriate
procedure for determining this is an original action before our supreme court. See State
ex rel. Crain, 921 N.E.2d at 1284. Thomas properly followed this procedure, but our
supreme court rejected his claim,4 and we will not, and cannot, reconsider it. Justak, 181
Ind. App. at 448, 391 N.E.2d at 878.
4 Thomas claims in her reply brief that our supreme court’s order denying her petition for a writ of mandamus and prohibition was not necessarily made on the merits of her claim that the trial court lacked jurisdiction under Trial Rule 53.1. We disagree. From the language of the court’s order, we think it is clear that the court considered and rejected Thomas’s claim the trial court clerk should have granted her Trial Rule 53.1 praecipe.
12 II. Denial of Motion to Stay
Thomas also argues that the trial court improperly denied her request to stay
proceedings in order to allow her time to petition the Indiana Supreme Court for a writ of
mandamus and prohibition. Thomas’s argument on this issue is again deficient. After
setting forth the standard of review, she lists the “uncontested facts” which she argues
support her claim that the trial court clerk should have granted her Trial Rule 53.1
praecipe. Thomas then simply concludes, “[t]he trial court’s action in denying the
Verified Motion for Stay is clearly erroneous, against the logic and effect of the facts
before it and the inferences, which may be drawn from it.” Appellant’s Br. p. 8. Thomas
cites no authority which would indicate that the trial court should have granted her
motion to stay the proceedings. We therefore consider this argument waived for failure
to make a cogent argument.5 See App. R. 46(A)(8)(a); Gee, 934 N.E.2d at 1262.
III. Propriety of “Global” Hearing
Thomas lastly claims that the trial court erred in holding a “global” hearing on all
pending motions without notice. This argument is unavailing. As our supreme court
noted in its order denying Thomas’s petition for a writ of mandamus and prohibition,
although the trial court’s order setting the June 1 hearing could have been clearer, the trial
court repeatedly informed Thomas’s counsel that the June 1 hearing was to be a “global”
5 We also reject Thomas’s claim that the trial judge, as opposed to the trial court clerk, denied her Trial Rule 53.1 praecipe. Although the relevant CCS entry does list the name of the trial judge, the notice informing the parties that Thomas’s Trial Rule 53.1 praecipe had been denied was clearly signed by the trial court clerk, not the trial judge. Appellant’s App. p. 50.
13 hearing on all pending matters. Thus, Thomas cannot claim that she was unaware of the
nature of the scheduled hearing.
We further disagree with Thomas to the extent that she claims that she was unable
to appear at the June 1 hearing without waiving her jurisdictional claim. It is true that
“the benefit of Trial Rule 53.1 ‘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’
that rule. State ex rel. Crain, 921 N.E.2d at 1286 (quoting State ex rel. Koppe v. Cass
Circuit Court, 723 N.E.2d 866, 869 n.1 (Ind. 2000)).
However, Thomas cites no authority for a claim that simply appearing at the June
1 hearing—where she could have argued the propriety of the stay—would waive her
Trial Rule 53.1 claim. In fact, case law suggests the opposite. See State ex rel. Crain,
921 N.E.2d at 1286 (holding that relator’s filing proposed findings and conclusions did
not act to waive relator’s claim under Trial Rule 53.1 where relator brought Trial Rule
53.1 issue to the court’s attention and submitted its proposed findings and conclusions
only as directed by the court). Thus, Thomas could have appeared at the June 1 hearing
and made her jurisdictional argument without risking waiver. See Kondamuri v.
Kondamuri, 799 N.E.2d 1153, 1159 (Ind. Ct. App. 2003) (noting that once jurisdictional
challenge has been lodged, party’s contemporaneous or subsequent defense on the merits
does not invoke affirmative relief barring jurisdictional claim) (citing State v. Omega
Painting, Inc., 463 N.E.2d 287, 292 (Ind. Ct. App. 1984)).
Affirmed.
14 BAILEY, J., and CRONE, J., concur.