WorldCom Network Services, Inc. v. Thompson
| Decision Date | 04 September 1998 |
| Docket Number | No. 32A04-9705-CV-196,32A04-9705-CV-196 |
| Citation | 698 N.E.2d 1233 |
| Parties | WORLDCOM NETWORK SERVICES, INC., Appellant-Plaintiff/Counter-Defendant, v. Darryl THOMPSON and Sonja Thompson, Appellees-Defendants/Counter-Plaintiffs. |
| Court | Indiana Appellate Court |
V. Samuel Laurin, III, George T. Patton, Jr., Andrew M. McNeil, Bose McKinney & Evans, Indianapolis, for Appellant-Plaintiff/Counter-Defendant.
James O. McDonald, Everett Everett & McDonald, Terre Haute, Max E. Goodwin, Bruce D. Aukerman, Mann Law Firm, Terre Haute, for Appellees-Defendants/Counter-Plaintiffs.
On March 23, 1998, this court issued its memorandum decision in an interlocutory appeal initiated by WorldCom Network Services, Inc. ("WorldCom"). The appeal was from the trial court's denial of WorldCom's request to enjoin Darryl and Sonja Thompson ("Thompsons") from severing or removing fiber optic cable in a disputed area along Baltimore Road in Morgan County. In our decision, we addressed three issues:
1. Whether the preliminary injunction requested by WorldCom should issue;
2. Whether the trial court erred when it determined that an order issued by the Morgan County Board of Commissioners was not properly recorded; and
3. Whether the trial court erred when it concluded that WorldCom had failed to produce evidence which established the location of the Baltimore Road right-of-way.
We first held that a change of circumstances had obviated WorldCom's claim of irreparable harm, a condition for injunctive relief, and that an injunction should not issue. We also held that a 1913 order by the Morgan County Commissioners was properly recorded in the commissioners' order book maintained by the Morgan County Auditor. Finally, we held that the right-of-way can be measured accurately from the current centerline of Baltimore Road.
The Thompsons now petition for rehearing, oral argument on rehearing and, in the alternative, for publication of our decision. In its brief, WorldCom joins the Thompsons in their request that our memorandum decision be published but otherwise disputes the petition for rehearing and for additional oral argument. WorldCom also argues that the petition for rehearing and supporting brief filed by the Thompsons contain "a scandalous, impertinent and disrespectful attack" on this court and that we should strike the entire petition and brief. The Thompsons respond with their own motion to strike WorldCom's brief on the grounds that it "intentionally and repeatedly misrepresents the facts of record and disregards established rules of appellate practice."
The Thompsons insist that our decision misstates the record. They further contend that our holding concerning the location of the disputed right-of-way was based on evidence not before the trial court and not properly before this court. They also argue that our decision alters and establishes a rule of law and involves issues of substantial public importance and, thus, that in issuing a memorandum decision we did not follow the criteria for publication enumerated in Indiana Appellate Rule 15(A)(2). Finally, the Thompsons allege they were denied due process because, they maintain, there is a much greater chance that transfer will be granted from a published opinion than from a memorandum decision. We shall address each of these contentions in turn.
WorldCom is a long distance telecommunications company that operates as a public utility in Indiana under a certificate of authority from the Indiana Utility Regulatory Commission. WorldCom offered to purchase the right to install its fiber optic cable on the Thompson property along Baltimore Road, but the Thompsons declined. WorldCom then obtained a permit from the Morgan County Highway Department for "Underground Transmission Devices on County Right of Way." The permit was valid only for work within the Morgan County highway right-of-way, and the permittee was required to "secure consent by easement or other legal document from abutting property owners for work performed outside the Highway right of way." While the permit did not describe the right-of-way with any certainty, WorldCom buried its cable in ground along Baltimore Road on the Thompson property. The Thompsons objected to installation of the cable.
WorldCom subsequently filed a complaint seeking a preliminary injunction to prohibit the Thompsons from disturbing the cable. The trial court denied the injunction, finding that WorldCom's actions constituted a trespass. The court further denied WorldCom's request for a stay pending appeal, stating that WorldCom knew or should have known WorldCom then took an interlocutory appeal, and this court entered a stay pending appeal. However, the appeal was terminated and the case was remanded to the trial court for consideration of additional evidence. See footnote 9, infra. Shortly thereafter, and before the next hearing, the cable was severed. 1 The parties disputed whether our order terminating the appeal had lifted the stay previously entered and, thus, whether Darryl Thompson could be charged with contempt for having allegedly violated the stay. See Worldcom Network Services, Inc. v. Thompson, 684 N.E.2d 211 (Ind.Ct.App.1997), opinion vacated, 694 N.E.2d 1125 (Ind.1998). At some point, WorldCom abandoned the cable and installed a new cable in another location.
that the consent of the landowner was required and that WorldCom did not act in good faith when it buried its cable on the Thompson property.
WorldCom took a change of venue from Morgan County. After another evidentiary hearing, the second trial court confirmed the first trial court's order, entered additional findings and conclusions and denied WorldCom's request for a preliminary injunction. WorldCom then brought this interlocutory appeal.
The issues in this appeal are hotly contested, and we respect vigorous advocacy. However, some of the Thompsons' contentions on rehearing are inappropriate. While the Thompsons profess to hold this court in "high esteem," significant parts of their petition and brief are condescending and permeated with sarcasm and disrespect. By way of illustration, they allege that our decision, if not corrected, "can only lead to ridicule, if not contempt, for this Court by the Thompsons and their many friends and neighbors," and that "[t]oo many citizens are already cynical, if not contemptuous, of the judiciary." They assert that our decision contains "glaringly incorrect statements of supposed fact" which are "obviously wrong." They imply that the court lacks experience in real estate matters.
The Thompsons also accuse the court of writing "with pens filled with the staining ink of innuendo," allege that portions of our decision give "the appearance of bias, prejudice and impropriety" and argue that "the decision will remain as a blemish on the record" of the court if those portions are not retracted. They assert that if this court were to disagree with a certain finding "it would be ridiculous," and they question the court's good faith and ethics. They demand an "apology" from the court. At one point, in rhetorical high gear, the Thompsons warn the court against reaching a particular conclusion and declare that such a ruling would be "blatantly erroneous."
Portions of the Thompsons' brief on rehearing present cogent argument. However, the strident and offensive tenor of the remaining portions interferes with this court's due deliberation on the merits of those issues which the Thompsons ask us to consider on rehearing. Their overheated rhetoric is unpersuasive and ill-advised. 2 Righteous indignation is no substitute for a well-reasoned argument. We remind counsel that an advocate can present his cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics. See Comment, Ind. Professional Conduct Rule 3.5. Judges and attorneys are engaged in a common enterprise and have a joint obligation and privilege to improve the legal order. Louis H. Pollak, Professional Attitude, ABA JOURNAL, Aug. 1998, at 67. The incivility manifested in the Thompsons' petition and brief corrodes the judicial system. See id.
In State v. Hoovler, 673 N.E.2d 767 (Ind.1997), our supreme court struck portions of a petition for rehearing and supporting brief, noting, "Striking scandalous or impertinent material has been a part of Indiana practice since long before adoption of our present trial rules." Id. at 768; see also Ind. Trial Rule 12(F). In this case, the offensive material is so interwoven with legitimate argument that we have considered striking the entire submission. We have chosen instead to strike only the inappropriate portions of the Thompsons' petition and brief because we do not believe the Thompsons should be denied consideration of their petition due to the excessive zeal of their attorneys. Those portions are hereby stricken, and counsel are admonished that the use of impertinent material disserves the client's interest and demeans the legal profession.
We now turn our attention to the Thompsons' principal contentions in their petition for rehearing. As previously stated, we held that a change in circumstances had obviated WorldCom's claim of irreparable harm. However, we went on to address other issues presented in the appeal which are likely to recur on remand. The Thompsons now allege that we improperly issued an advisory opinion and, thus, erred in considering other issues. Given the posture and history of this case, we cannot agree.
This court has previously addressed issues which were not dispositive of the appeal but were likely to appear on remand. See, e.g., Irvine v. Irvine, 685 N.E.2d 67, 71 (Ind.Ct.App.1997); Lueder v. NIPSCO, 683 N.E.2d 1340, 1346 (Ind.Ct.App.1997), trans. denied; Brant v. Custom Design Constructors...
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