City of Hammond v. Doody, 45A03-8904-CV-144

• Decision Date: 26 April 1990
• Docket Number: No. 45A03-8904-CV-144,45A03-8904-CV-144
• Citation: 553 N.E.2d 196
• Parties: The CITY OF HAMMOND, Indiana, an Indiana Municipal Corporation, Appellant (Defendant/Counter-Plaintiff Below), v. Michael E. DOODY, d/b/a Flower Express, Appellee (Plaintiff/Counter-Defendant Below).
• Court: Indiana Appellate Court

Page 196

553 N.E.2d 196

The CITY OF HAMMOND, Indiana, an Indiana Municipal

Corporation, Appellant (Defendant/Counter-Plaintiff Below), v. Michael E. DOODY, d/b/a Flower Express, Appellee

(Plaintiff/Counter-Defendant Below).

No. 45A03-8904-CV-144.

Court of Appeals of Indiana,

Third District.

April 26, 1990.

Richard P. Komyatte, Komyatte & Freeland, P.C., Highland, Joseph O'Connor, Asst. City Atty., Hammond, for appellant.

Robert M. Karton, Robert M. Karton, Ltd., Chicago, Ill., David M. Hamacher, Ruman, Clements & Tobin, P.C., Hammond, for appellee.

HOFFMAN, Presiding Judge.

Defendant-appellant City of Hammond, Indiana appeals the trial court's judgment permanently enjoining the City of Hammond from enforcement of Ordinance 6045 against Michael E. Doody, d/b/a Flower Express.

The facts relevant to this appeal disclose that on April 28, 1987, the City of Hammond enacted Ordinance 6045 prohibiting outdoor retail sales in commercially zoned districts. Doody, who has an outdoor flower sales business, challenged the ordinance by filing a complaint in Lake Circuit Court. He alleged in his complaint that the ordinance was unconstitutional and that the prior operation of his business constituted a lawful nonconforming use.

On July 20, 1987, Doody's motion for preliminary injunction was denied. On July 25, 1988, a hearing was held on Doody's complaint for permanent injunction and on the City of Hammond's counter-claim for permanent injunction. The trial court rendered its judgment on October 25, 1988 enjoining the City of Hammond from enforcement of Ordinance 6045 against Doody and declaring Doody to have a valid nonconforming use.

On December 12, 1988, the City filed a motion to correct errors claiming, in part, that Doody's trial counsel, Robert Berger, and the trial court's law clerk, Harolyn Goldenberg, had filed suit against the City in a separate action in the United States District Court on October 17, 1988. The City asked that the judgment and order of October 25, 1988 be set aside because it was tainted by bias and prejudice due to this interaction of Doody's trial counsel and the trial court's law clerk prior to the court's judgment being rendered. The motion was denied by the trial court and this appeal ensued.

One issue is dispositive of this appeal: ¹ whether the trial judge should have recused or disqualified himself based upon the City's allegation that the attorney, who associated herself with plaintiff's counsel in a separate lawsuit against the City at least eight days before the trial court's judgment against the City, was the judge's law clerk.

Appellant asks this Court to take judicial notice that Harolyn Goldenberg was a law clerk for the trial court prior to the trial court's judgment being rendered October 25, 1988. Then, based on this judicial notice, appellant requests this Court to reverse and vacate the trial court's judgment upon the finding that Goldenberg's conduct violated the Canons of Judicial Conduct which required the trial judge's recusal or disqualification from the case.

Appellant argues that Canons 2 and 3 of the Code of Judicial Conduct mandate that a judge should avoid the appearance of impropriety in all his activities and that a judge should perform the duties of his offices impartially which would require a judge to disqualify himself in a proceeding in which his impartiality might be reasonably be questioned. This is true. However the flaw in appellant's argument is that no evidence was ever presented that Harolyn Goldenberg was a law clerk for the trial court. The appellant is asking this Court to take judicial notice of a fact based merely upon appellant's allegation.

Appellant claims that Harolyn Goldenberg's association with Doody's trial counsel was not discovered until two days after judgment had been rendered by the trial court so that it was impossible to have raised this issue at trial. However appellant did raise this issue in its motion to correct error but neglected to support its allegation with any evidence. The Indiana Rules of Trial Procedure provide that when a motion to correct error is based upon evidence outside the record, the motion shall be supported by affidavits showing the truth of the grounds set out in the motion. Ind. Trial Rule 59(H)(1). No affidavits were filed by the appellant.

Since no evidence was provided of Goldenberg's employment as a law clerk, appellant asks this Court to take judicial notice of this fact. Judicial notice "means that the court will bring to its aid, without proof or evidence of the facts, its knowledge of the existence or nonexistence of ... facts." Glover v. Ottinger (1980), Ind.App., 400 N.E.2d 1212, 1214. Facts that are judicially noted must be generally known or capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned. Stewart v. Stewart (1988), Ind.App., 521 N.E.2d 956, 959, n. 2.

Courts have routinely taken judicial notice of commonly known facts such as the location of county seats, Fitch v. City of Lawrenceburg (1938), 104 Ind.App. 704, 12 N.E.2d 391; the powers and duties of public bodies or public officers, State ex rel. Minniear v. Eckman (1933), 205 Ind. 550, 187 N.E. 327, Dailey v. State (1909), 171 Ind. 646, 87 N.E. 4; attorneys admitted to the bar, State ex rel. Moritz v. Jackson Circuit Ct. (1963), 244 Ind. 54, 188 N.E.2d 530; Indiana statutes, Corey v. Smith; Case (1954), 233 Ind. 452, 120 N.E.2d 410, Indiana's Constitution and case law, State ex rel. McGonigle...