Pruden v. Trabits

• Decision Date: 27 December 1977
• Docket Number: No. 1-377A43,1-377A43
• Citation: 370 N.E.2d 959,175 Ind.App. 219
• Parties: Jack PRUDEN, Margaret Pruden, Bert Alvey, Hattie Mae Alvey, Appellants (Plaintiffs), v. George TRABITS, William Schnur, Robert Lant, Richard Leighton, Russell McCormick, Elden Hopkins, Daniel Andrews, Members of the Area Plan Commission of Warrick County, Phyllis Barnhill, Executive Director, Warrick County Area Plan Commission, Edgar Hauselmire, Virgil Gerhardt, James Marshall, County Commissioners of Warrick County, Indiana, Bruce Mortensen, Frank Jones, Agnes Jones, Appellees (Defendants).
• Court: Indiana Appellate Court

Page 959

370 N.E.2d 959

175 Ind.App. 219

Jack PRUDEN, Margaret Pruden, Bert Alvey, Hattie Mae Alvey Appellants (Plaintiffs), v. George TRABITS, William Schnur, Robert Lant, Richard Leighton, Russell McCormick, Elden Hopkins, Daniel Andrews Members of the Area Plan Commission of Warrick County Phyllis Barnhill, Executive Director, Warrick County Area Plan Commission, Edgar Hauselmire, Virgil Gerhardt, James Marshall, County Commissioners of Warrick County, Indiana Bruce Mortensen, Frank Jones, Agnes Jones, Appellees (Defendants).

No. 1-377A43.

Court of Appeals of Indiana, First District.

Dec. 27, 1977.

Matthews & Shaw, Evansville, for appellants.

Donald R. Wright, Wright & Daly, Evansville, for appellee. ¹

ROBERTSON, Chief Judge.

Plaintiffs-appellants, Jack and Margaret Pruden and Bert and Hattie Mae Alvey (hereinafter Plaintiffs) appeal the decisions of the trial court which denied them a change of venue and dismissed their amended complaint for declaratory judgment.

The Plaintiffs present two issues for our review: 1) whether the trial court erred in denying both of Plaintiffs' motions for automatic change of venue, and 2) whether the trial court erred, and whether its decision was contrary to law, when it dismissed both Plaintiffs' complaint for injunction and Plaintiffs' amended complaint for declaratory judgment.

I.

A summary of the case is necessary before discussion of the Plaintiff's first issue.

On January 26, 1976, Plaintiffs filed both their complaint for injunction and a motion for change of venue from the county. The same day the court granted the Plaintiffs' motion for change of venue and named five counties from which the Plaintiffs struck one. Plaintiffs served attorneys for two of the defendants (the Plan Commission and Board of County Commissioners) with copies of the motion for change of venue along with the summons and complaint. Attorneys for the remaining defendants (Mortensen and Frank and Agnes Jones) entered their respective appearances on February 3, 1976. Mortensen simultaneously filed a motion to reconsider Plaintiffs' change of venue and to resume jurisdiction and a motion to dismiss for failure to state a claim. On February 6, 1976, Plaintiffs served the attorneys for the remaining defendants with copies of the motion for change of venue. The first answer in this cause was filed by the property owners, Frank and Agnes Jones, on February 11, 1976.

The procedure for a change of venue is found in Ind. Rules of Procedure, Trial Rule 76, which, in pertinent part, provides as follows:

(1) In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided, however, a party shall be entitled to only one (1) change from the county and only one (1) change from the judge.

(2) In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for a change of judge or change of venue shall be filed not later than ten (10) days after the issues are first closed on the merits.

(6) Provided further, in the event a change is granted from the judge or county within the prescribed period, as stated above, a request for a change of judge or county may be made by a party still entitled thereto within ten (10) days after the special judge has qualified or the moving party has knowledge the cause has reached the receiving county or there has been a failure to perfect the change. Provided, however, this subdivision (6) shall operate only to enlarge the time allowed for such request under such circumstances, and it shall not operate to reduce the period prescribed in subdivisions (2), (3), (4) or (5).

(9) . . . In the absence of such agreement, it shall be the duty of the court within two (2) days thereafter to submit to the parties a written list of all the counties adjoining the county from which the venue is changed, and the parties within seven (7) days thereafter, or within such time, not to exceed fourteen (14) days, as the court shall fix, shall each alternately strike off the names of such counties. The party first filing such motion shall strike first, and the action shall be sent to the county remaining not stricken under such procedure. If a moving party fails to so strike within said time, he shall not be entitled to a change of venue, and the court shall resume general jurisdiction of the cause. If a nonmoving party fails to strike off the names of such counties within the time limited, then the clerk shall strike off such names for such party.

The issues were first closed on the merits when the Joneses filed their answer on February 11, 1976. Rayburn v. Eisen (1975), Ind.App., 336 N.E.2d 392. The motion for change of venue, filed sixteen days before the issues were closed, clearly was timely.

Under section (9) of T.R. 76, the parties were required to strike counties by February 4, 1976, or at the latest, February 11, 1976 (however, nothing in the record indicates that the trial court fixed the later time). The parties made no further strikes. Pursuant to section (9), the court resumed jurisdiction at the expiration of the time provided for striking. Having regained jurisdiction, the trial court committed no error in considering and ruling on the motions before it which requested vacation of its change of venue order dated January 26, 1976.

We do not perceive the burden on the moving party, to inquire whether the other parties have struck any counties, to be excessive. If the moving party desires a change of venue, he should timely request the clerk of the court to strike for the nonmoving parties.

Plaintiffs further contend that the trial court erred by denying their second motion for change of venue, filed February 25, 1976. The tenth day following the filing of the first answer was February 21, 1976. The trial court did not err in refusing the motion for automatic change of venue which was filed beyond the procedural deadline.

Plaintiffs quote extensively from dissenting opinions by Judge Lybrook in Rayburn, supra, and by Justice DeBruler in State ex rel. Yockey v. Marion Superior Court (1974), 261 Ind. 504, 307 N.E.2d 70, to support their argument that the right to a change of venue is a substantive right, partially rooted in the Indiana Constitution. We agree that each party does have a right to an automatic change of venue, provided the time limitations are met.

In the case at bar the Plaintiffs timely filed their motion, but neglected to have the striking of counties completed. Thus the court resumed jurisdiction. Fairness to later answering multiple defendants is not an issue. However, section (6) of T.R. 76 does provide an extended deadline for additional parties to make change of venue requests.

We hold that the trial court properly resumed jurisdiction and did not err when it expunged the January 26, 1976 motion and order for change of venue.

II.

Plaintiffs initiated an equitable proceeding to seek an injunction, basing their claim for relief on their construction of Sections 46 through 52 of Chapter 138 of the Acts of 1957 (IC 1971, 18-7-4-47 through 18-7-4-53 (Burns Code Ed.)). ² Following the dismissal of their complaint for failure to state a claim, Plaintiffs timely filed an amended complaint which sought a declaratory ruling that the rezoning ordinance was void. This amended complaint was also dismissed.

Plaintiffs put in issue on appeal the propriety of the trial court's action in sustaining the defendants' second motions to dismiss under Ind. Rules of Procedure, Trial Rule 12(B)(6). In reviewing such dismissal, this court must decide "whether in the light most favorable to the plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claims." Gladis v. Melloh (1971), 149 Ind.App. 466, 469, 273 N.E.2d 767, 769. Generally, this court must determine whether the plaintiff can prove no set of facts in support of his claim which would entitle him to relief and whether the plaintiff has some legal theory to support a justifiable claim entitling him to relief.

In their complaint, the Plaintiffs alleged facts concerning required procedure and the procedural steps taken, which, if true, would support a finding that the action of the Board in adopting the amending ordinance was void and that the property is not rezoned. Krimendahl v. Common Council of City of Noblesville (1971), 256 Ind. 191, 267 N.E.2d 547; State ex rel. Michigan City Plan Commission v. LaPorte Superior Court No. 1 (1973), 260 Ind. 587, 297 N.E.2d 814; see also Bryant v. Lake County Trust Co. (1972), 152 Ind.App. 628, 284 N.E.2d 537.

However, there is a question whether there is a valid legal theory under which the plaintiffs would be entitled to relief. Their theory is based upon their construction of the procedural requirement for adoption of a zoning ordinance amendment. If their construction of the statute is invalid, they have no legal theory, their claim for relief vanishes, and we must affirm the granting of the motion to dismiss.

To decide whether the Plaintiffs had a legal theory upon which to base their claim, the trial court apparently considered the 1957 Act and found its specific provisions to be inapplicable to the circumstances of the parties in the case at bar.

The judgment of the trial court which failed to find any construction of the Act supporting the Plaintiffs' claim was a decision on the merits which will be upheld if it may be sustained under any theory. England v. Dana Corp. (1970), 147 Ind.App. 279, 259 N.E.2d 433; Goff v. Graham (1974), Ind.App., 306 N.E.2d 758.

In construing statutes, this court gives effect to the intention of the legislature which enacted the law, insofar as the intention can be ascertained....