Scott v. Consolidated City of Indianapolis

• Decision Date: 13 September 2005
• Docket Number: No. 49A02-0411-CV-954.,49A02-0411-CV-954.
• Citation: 833 N.E.2d 1094
• Parties: Frank SCOTT, Don Miller, and Mary L. Riffey-Perkins, as Taxpayers and Residents of the Consolidated City of Indianapolis, Appellants-Plaintiffs, v. The CONSOLIDATED CITY OF INDIANAPOLIS, Marion County, Indiana (an Indiana Municipal Corporation) and the Department of Waterworks of the Consolidated City of Indianapolis, Marion County, Indiana, Appellees-Defendants.
• Court: Indiana Supreme Court

833 N.E.2d 1094

Frank SCOTT, Don Miller, and Mary L. Riffey-Perkins, as Taxpayers and Residents of the Consolidated City of Indianapolis, Appellants-Plaintiffs, v. The CONSOLIDATED CITY OF INDIANAPOLIS, Marion County, Indiana (an Indiana Municipal Corporation) and the Department of Waterworks of the Consolidated City of Indianapolis, Marion County, Indiana, Appellees-Defendants.

No. 49A02-0411-CV-954.

Court of Appeals of Indiana.

September 13, 2005.

John R. Price, John R. Price & Associates, Indianapolis, for Appellants.

Michael C. Terrell, Donald C. Biggs, Gayle A. Reindl, Sommer Barnard Attorneys, PC, Indianapolis, for Appellees.

OPINION

SULLIVAN, Judge.

Frank Scott, Don Miller, and Mary L. Riffey-Perkins (collectively "Scott") appeal from the trial court's denial of their motion to change venue from Marion County. They present two issues for our review: (1) whether the trial court could revisit a previously granted order for change of venue, and (2) whether Trial Rule 76 required the change of venue from Marion County.¹

We affirm.

In 2002, the City of Indianapolis ("City") purchased the Indianapolis Water Company ("IWC") and created the Department of Waterworks ("DOW")² to oversee the management of the IWC. Scott filed a complaint against the Defendants alleging that the City had failed to follow statutory requirements in the purchase and operation of the IWC. The complaint was filed on April 24, 2003 at approximately 3:30 p.m. and the case was assigned to Judge Reid. At that same time, Scott's counsel, John R. Price, presented a "Verified Motion for Change of Venue from County" and the proposed order to the filing clerk. Because Judge Reid was at a judicial conference, Mr. Price proceeded to look for an available judge to grant the change of venue so that the complaint and the change of venue order could be served at the same time. Judge Kenneth H. Johnson was available and signed the order during a break in a trial.

Upon learning of the lawsuit and the change of venue motion, the Defendants' counsel objected to the granting of the motion and refused to agree to a county for a change of venue. On April 28, the Defendants filed a motion to vacate the order granting the change of venue. As the grounds for vacation of the order, they asserted that Marion Circuit and Superior Court Civil Division Rules provide that they have fifteen days to respond to the motion.³ Additionally, they claimed that the change of venue from the county, under Trial Rule 76(A), is not automatic. Scott filed a response to the motion to vacate the order, alleging that Marion County was a party in this case because of the effects of Unigov, and that indeed, it is mandatory that a motion for change of venue be granted when the county is involved in a lawsuit. That response was filed on May 1.

Also on May 1, the trial court—Judge Reid—granted the motion to vacate the order for change of venue because the order was entered prior to the Defendants having an opportunity to respond as provided for in the local rules. A hearing was held on May 15, 2003 upon whether venue should be transferred to a different county. Following that hearing, on May 28, Judge Reid issued an order denying Scott's motion for change of venue. The court determined that Marion County was not a nominal party to the action, nor are the City and Marion County one and the same.

The first issue presented by Scott upon appeal is whether the trial court had jurisdiction to vacate an order granting a change of venue. Trial Rule 78 addresses matters of jurisdiction pending changes from a county. It states:

"Whenever a court has granted an order for a change of venue to another county and the costs thereof have been paid where an obligation exists to pay such costs for such change, either party to the cause may file a certified copy of the order making such change in the court to which such change has been made, and thereupon such court shall have full jurisdiction of said cause, regardless of the fact that the transcript and papers have not yet been filed with such court to which such change is taken. Nothing in this rule shall be construed as divesting the original court of its jurisdiction to hear and determine emergency matters between the time that a motion for change of venue is filed and the time that the court grants an order for the change of venue."

Based upon this language and our case law, Scott argues that as soon as the order was granted, the trial court from which the order was granted was without jurisdiction to review the matter. Furthermore, Scott argues that Trial Rule 76⁴ does not contemplate a responsive pleading and that the court lacks jurisdiction to entertain the responsive pleading. Rather, according to Scott, the moving party has the sole opportunity to prove or fail to prove that he is entitled to a change of venue.⁵

Relatively few Indiana cases have addressed whether a trial court may entertain a motion to vacate a change of venue order, or even whether the issue may be addressed sua sponte. In general terms, in Metropolitan Development Commission of Marion County v. Newlon, 156 Ind.App. 464, 297 N.E.2d 483 (1973), this court addressed whether previously ruled upon motions may be reconsidered. This court stated, "[a] court has inherent power to control its own orders. It is therefore perfectly proper for a trial court to reconsider a previous order, and to vacate it, or make a modified or contrary order while the case is still in fieri." 156 Ind.App. at 466, 297 N.E.2d at 484.

Scott relies upon two cases which applied the prohibition found in Trial Rule 78 of a trial court ruling upon matters other then the change of venue motion and emergency matters. In both Justak v. Bochnowski, 181 Ind.App. 439, 391 N.E.2d 872 (1979), and City of Fort Wayne v. Hoagland, 168 Ind.App. 262, 342 N.E.2d 865 (1976), this court ruled that the respective trial courts erred in ruling upon motions related to default judgments after a motion for change of venue had been filed.

In Sun Publishing Company v. Bonifas, 106 Ind.App. 607, 19 N.E.2d 879 (1939), a change of venue motion was granted, costs were paid, and the Clerk of the Jay Circuit Court transmitted the papers to the Blackford Circuit Court, which assumed jurisdiction. A motion to vacate the order was then filed in the Jay Circuit Court and the motion was stricken by the Jay Circuit Court because it did not have jurisdiction to entertain the motion. This court held that the Jay Circuit Court did not err by striking the motion because it had no jurisdiction to set aside its order to change venue. 106 Ind.App. at 610, 19 N.E.2d at 880. The court noted that the general rule is that "a court may in its discretion either by consent of the parties or for any sufficient cause, and at the same term before the transfer is made vacate or set aside its order in regard to a change of venue and may reinstate the cause for trial. After the jurisdiction of the court is divested however it cannot vacate or set aside its order." 106 Ind.App. at 610-11, 19 N.E.2d at 880.

That same principle was followed in Welty v. Allen Superior Court No. 2, 243 Ind. 378, 185 N.E.2d 617 (1962). In that case, a party sought a writ of mandate directing the trial court to enter an order for change of venue. Our Supreme Court determined that the court had authority to vacate its prior order granting a change of venue because the order was based upon a motion which was not timely filed and the action of the court occurred during the same term and prior to the investment of jurisdiction of said cause in any other court.⁶ 243 Ind. at 383, 185 N.E.2d at 619.

Since that time, several more cases from this court and our Supreme Court have addressed the issue of whether a trial court may set aside an order granting a change of venue. These cases all stand for the proposition that a trial court does have discretion to do just that. See Northern Indiana Pub. Serv. Co. v. Elkhart Superior Court, Room One, 556 N.E.2d 326 (Ind.1990); Smith v. Lake Superior Court, 531 N.E.2d 213 (Ind.1988); Indiana State Fair Bd. v. Hockey Corp. of America, 165 Ind.App. 544, 333 N.E.2d 104 (1975) (vacated by 429 N.E.2d 1121 (Ind.1982) but agreeing with this court's disposition on grounds of waiver of right to change of venue before complete disinvesture of jurisdiction because of inaction by the Fair Board on its motion for change of venue).

In the case before us, Judge Johnson of the Marion Superior Court had granted the motion for change of venue. However, he did so within a time frame that prevented the Defendants from being able to respond to the motion. Judge Reid concluded that Marion Circuit and Superior Court Civil Division Rule 5.1(B) provided for a fifteen-day period in which the Defendants could respond to the motion. As a result, she vacated the prior order.⁷ At the time she vacated the order, jurisdiction had not been vested in any other court. Therefore, under the precedent from this court and our Supreme Court, Judge Reid had the authority to review the order and vacate it.

Because Judge Reid had authority to review and vacate the order, we now turn to the heart of this appeal, whether Trial Rule 76 mandates that this cause of action be venued in a different county because Marion County is a party to this action. Trial Rule 76(A) states that a change of venue motion "shall be granted only upon a showing that the county where suit is pending is a party or that the party seeking the change will be unlikely to receive a fair trial on account of local prejudice or bias regarding a party or the claim or defense presented by a party."⁸ A denial of a motion for change of venue is reviewed for an abuse of discretion. T.R. 76(A).

Scott's argument is that a change of venue is automatic if the county is a party. Scott then asserts that Marion County is a party because the passage of the legislation, commonly known as Unigov, consolidating government...