Cooley v. Koetter Woodworking, Inc.

• Decision Date: 28 January 1993
• Docket Number: No. 10A01-9205-CV-150,10A01-9205-CV-150
• Parties: Lynn L. COOLEY and Barbara S. Cooley, Appellants-Defendants, v. KOETTER WOODWORKING, INC., Irvin F. Rosenberger, Andrew J. Rosenberger, Nelson B. Rosenberger, Melvin J. Rosenberger, Lenora Wright, and Maysel Wright, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 975

607 N.E.2d 975

Lynn L. COOLEY and Barbara S. Cooley, Appellants-Defendants, v. KOETTER WOODWORKING, INC., Irvin F. Rosenberger, Andrew J Rosenberger, Nelson B. Rosenberger, Melvin J Rosenberger, Lenora Wright, and Maysel Wright, Appellees-Plaintiffs.

No. 10A01-9205-CV-150.

Court of Appeals of Indiana First District.

Jan. 28, 1993.

Trent Thompson, Mead, Mead & Thompson, Salem, for appellant-defendants.

John W. Doehrman, Jeffersonville, Jean E. Sewell-Wood, Lorch & Naville, New Albany, for appellee-plaintiffs.

BAKER, Judge.

Defendant-appellants Lynn L. and Barbara S. Cooley needed a better access route to their Clark County property so in early November 1990 they hired a twenty-ton bulldozer to carve a half-mile swath directly across land owned by appellee-plaintiff Koetter Woodworking. To put it mildly, Koetter disapproved. It initiated suit against the Cooleys and eventually won a damage award totalling over $19,000.00. The Cooleys raise several issues for our consideration, the first of which is meritorious and dispenses with the need to address the others. We hold the trial court erroneously denied the Cooleys' motion for a change of venue from the county and that this error requires the judgment be vacated.

FACTS

After Koetter discovered the havoc wreaked by the bulldozing, it immediately sought both to prevent further harm and to Later that day, the trial court imposed a ten-day temporary restraining order and scheduled a hearing on the preliminary injunction for November 21, 1990, five days later. The trial court then directed that a copy of the order be served upon the Cooleys and their usual attorney, Trent Thompson. The record, however, gives no indication notice of the November 21st hearing was sent or received before the hearing was actually held.

recover for harm already suffered. On November 16, 1990, it filed a complaint for damages, motions for a preliminary injunction and a temporary restraining order, and gave a $1,000.00 security bond. Koetter sent a copy of these documents to the Cooleys. ¹

When the November 21st hearing was held, the Cooleys were not in attendance and were found to be "herein defaulted" by the trial court. Record at 19. The trial court then granted Koetter's motion for the preliminary injunction. It also allowed plaintiff-appellees Irvin F., Andrew J., Nelson B., and Melvin J. Rosenberger, and Lenora and Maysel Wright (collectively, Koetter), all individuals claiming the Cooleys had trespassed on their land as well, to intervene and, without prior notice to the Cooleys, granted their motions for a preliminary injunction and a temporary restraining order. At the conclusion of the ex parte hearing, the trial court scheduled a trial on the merits for March 7, 1991.

The record does not reflect when--if at all--the Cooleys received the documents Koetter mailed on the 16th, but it is clear Thompson was aware of Koetter's dispute with the Cooleys because Koetter's attorney called Thompson about it on November 16th, the day the suit was initiated. ² It is also clear that at some point Thompson and the Cooley's agreed Thompson would represent the Cooleys. On December 4, 1990, thirteen days after the hearing, Thompson entered his appearance and filed motions to set the injunction and restraining order aside and to change venue from Clark County.

Koetter objected to the Cooleys' change of venue motion and amended its complaint to seek treble compensatory and exemplary damages, punitive damages, and a permanent injunction. The Cooleys responded with two counterclaims of their own, the first alleging a prescriptive easement along the carved swath and the second alleging adverse possession of a particular 8.3 acre parcel of land.

After conducting a hearing, the trial court denied the Cooleys' change of venue from county motion. About a year later it conducted a trial in which a jury considered and then returned a verdict in favor of Koetter on the damages issue and in which the trial court considered and resolved the parties' equitable claims. The trial court entered a judgment against the Cooleys in the amount of $19,255 and for the Cooleys on their adverse possession claim.

DISCUSSION AND DECISION

Prior to February 1, 1992, T.R. 76 provided for an automatic change of venue from the county. ³ Former T.R. 76(1) provided that in all civil actions, change of venue from both county and judge "shall be granted upon the filing of an unverified application or motion...." The mandatory nature of the rule was designed to guarantee a fair and impartial trial. State ex rel. Prosser v. Lake Circuit Court (1991), Ind., 565 N.E.2d 751, 753. The failure to grant a timely motion constituted reversible error, because "[i]t is the general rule that once a proper and timely motion for change of venue is filed, the trial court is divested of jurisdiction to take further action except to grant the change of venue." City of Fort Wayne v. State ex rel. Hoagland (1976), 168 Ind.App. 262, 268, 342 N.E.2d 865, 869. ⁴

To avoid postponement, avoidance, or protraction of trial, however, the rule also imposed strict time limits within which the change of venue motion must have been filed. A request for change of venue must have been filed "within ten days after the issues in a case are first closed on the merits, which occurs when the defendant files its original answer." Id.; State ex rel. Baber v. Circuit Court of Hamilton County (1983), Ind., 454 N.E.2d 399, 401.

Here, after receiving a time extension, the Cooleys filed their answer and counterclaims on March 11, 1991, thus closing the issues on the merits insofar as they related to Koetter's complaint for damages and initiating the ten-day period in which the change of venue motion should have been submitted. The Cooley's motion, filed on December 4, 1990, was obviously timely.

There were (and continue to be) several exceptions to the rule's time constraints, however. Koetter claims one particular exception--T.R. 76(5), as it then existed--applies under the facts of this case and justified the trial court's denial of the Cooleys' motion. T.R. 76(5) read as follows:

Provided further that where a party has appeared at or received advance notice of a hearing prior to the expiration of the date within which a party may ask for a change of judge or county and...