Worldcom Network Services, Inc. v. Thompson
| Decision Date | 07 August 1997 |
| Docket Number | No. 55A05-9701-CV-33,55A05-9701-CV-33 |
| Citation | 684 N.E.2d 211 |
| Parties | WORLDCOM NETWORK SERVICES, INC., Appellant-Plaintiff, v. Darryl THOMPSON, Appellee-Defendant. |
| Court | Indiana Appellate Court |
V. Samuel Laurin, III, George T. Patton, Jr., Andrew McNeil, Bose McKinney & Evans, Indianapolis, for Appellant-Plaintiff.
Max E. Goodwin, Bruce D. Aukerman, Mann Law Firm, Terre Haute, James O. McDonald, Everett Everett & McDonald, Terre Haute, for Appellee-Defendant.
OPINION ON PETITION TO HOLD IN CONTEMPT
WorldCom Network Services, Inc. ("WorldCom") has filed a verified petition to hold appellee, Darryl Thompson in contempt for violating this court's order of January 31, 1997, granting a stay pending appeal. The initial issue for our review is whether the effect of our order dated April 21, 1997, was to lift the stay previously entered by this court. 1 We answer that question in the negative.
This case involves a dispute over the placement of a fiber-optic cable line. Thompson owns real estate in Morgan County that abuts Baltimore Road. This real estate was conveyed to Thompson and his wife, Sonja, pursuant to a deed that provides the conveyance WorldCom, a telephone company and public utility, sought to install fiber-optic telecommunications cables. WorldCom buried the cables in ground between Baltimore Road and a fence constructed on Thompson's property. The parties dispute whether the county had a right-of way on that ground and, ultimately, whether WorldCom was a trespasser on Thompson's land. 2 The construction was completed by October 31, 1996. Thompson primarily claims that the right-of-way did not include the area utilized by WorldCom and that the ground where WorldCom installed the cable belongs to him.
is "[s]ubject to easements, restrictions and rights-of-way of record or observable."
The parties dispute how often and to whom Thompson complained. The parties agree that around December 17, 1996, Thompson spoke with a WorldCom representative and told the representative that WorldCom did not have the right to install the cables. Later, on January 9, 1997, Thompson informed a WorldCom representative that he intended to remove the cables from the ground.
On January 10, 1997, WorldCom filed a complaint for injunctive relief in the Morgan Superior Court, seeking to enjoin Thompson and all persons acting in concert with him from interfering with the cables, including tearing up or otherwise removing them. The trial court issued a temporary restraining order ("TRO") on January 10, 1997, pending a hearing on WorldCom's application for a preliminary injunction.
On January 21, 1997, the trial court held a hearing on the complaint for injunctive relief and took the matter under advisement. On January 24, 1997, the trial court denied the preliminary injunction and rescinded the TRO previously entered. As a result of this denial, WorldCom filed an emergency petition for stay pending appeal of the denial of a preliminary injunction in this court.
On January 25, 1997, we issued an immediate temporary stay pending appeal against Thompson until a hearing could be held regarding a permanent stay pending appeal. The immediate temporary stay restrained, enjoined, and prohibited Thompson, and each of his agents, servants, and all persons in concert and participation with him from:
After hearing oral argument on January 29, 1997, and taking the matter under advisement, we continued the immediate temporary stay "pending further order of this Court." On January 31, 1997, we granted the stay pending appeal of the denial of WorldCom's request for a preliminary injunction as follows:
"The court, having heard argument herein on January 29, 1997, and having taken the matter under advisement on the petition of appellant WorldCom for a stay pending appeal, now concludes its consideration and determines that a stay be granted pending appeal of the trial court denial of appellant WorldCom's request for a preliminary injunction.
It is, therefore, ORDERED:
1. The temporary stay granted January 25, 1997, and continued in effect on January 29, 1997, shall remain in effect until further order of this court, conditioned, however, upon the posting by appellant WorldCom with the clerk of the Morgan Superior Court not later than 4:00 P.M. on Tuesday, February 4, 1997, of security as provided for in Trial Rules 65 and 65.1 in the amount of One Hundred Thousand Dollars ($100,000.00).
2. No extensions of time will be allowed for the filing of the record and briefs herein."
WorldCom timely filed a bond. On February 3, 1997, Thompson petitioned this court to reduce the time within which WorldCom was required to file the record, and we ordered the record to be filed by February 14, 1997.
On March 25, 1997, WorldCom filed a motion for leave to present newly discovered evidence in the trial court in support of a preliminary injunction. In the motion, WorldCom specifically requested that this court "remand jurisdiction to the trial court, suspend consideration of the appeal with the stay in effect, and permit the trial court to receive the evidence and rule on the request for a preliminary injunction." The following day, we ordered that if Thompson intended to file a response to this motion, Thompson had do so within ten days. On April 3, 1997, Thompson filed a response to WorldCom's petition for leave and a motion to dismiss appeal and order of stay pending appeal.
On April 21, 1997, this court entered an order remanding the case to the trial court and terminating the appeal. Omitting formal parts, the order reads in its entirety as follows:
"ORDER
Appellant, Worldcom [sic] Network Services, Inc. (hereinafter "Worldcom" [sic] ) has filed its Verified Motion For Leave to Present Newly Discovered Evidence In The Trial Court, to which Appellee, Darryl Thompson has filed a response. Thompson has filed a Motion To Dismiss Appeal and Order Of Stay Pending Appeal, to which Worldcom [sic] has filed its response. Being duly advised, the court now makes the following ruling on these motions.
Thompson's Motion To Dismiss is denied. The seeking of potential alternative relief by Worldcom [sic] does not provide a basis for dismissal of its appeal from the denial of its application for a preliminary injunction.
Worldcom's [sic] Motion For Leave To Present Newly Discovered Evidence is granted. Although the situation here does not involve a request to present an Ind.Trial Rule 60(B) motion to the trial court as in Logal v. Cruse, 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523 , it does involve a situation where there is a substantial likelihood that return of the case to the trial court for further consideration would result in the trial court granting a preliminary or permanent injunction as prayed for by Worldcom [sic].
A ruling on a preliminary injunction is an interlocutory order pursuant to Ind.Appellate Rule 4(B)(3); see Hollingsworth v. Key Benefit Adm'rs, Inc., 658 N.E.2d 653, 655 (Ind.Ct.App.1995) () (citation omitted), reh'g denied, trans. denied. Given that the denial of a preliminary injunction is in the nature of an interlocutory order, the review of such action is not subject to T.R. 60(B), which by its own terms applies to an entry of default, final order, or final judgment.
The ruling on a preliminary injunction is not res judicata as to an application for a permanent injunction. See Cement-Masonry Workers Union, Local No. 101 v. Ralph M. Williams Enters., 169 Ind.App. 647, 350 N.E.2d 656, 657 (1976) ( ) Evidence not presented in seeking a preliminary injunction could be presented later in seeking a permanent injunction. If the trial court were to grant a preliminary or permanent injunction after our remand, this appeal would be rendered moot. If the trial court were to deny a preliminary or permanent injunction after our remand, an appeal would lie to that denial based upon the record made. If we were to continue with this appeal, our ruling would not preclude the presentation of the evidence which Worldcom [sic] now seeks leave to present to the trial court in a postappeal application for a permanent injunction. Judicial economy suggests that
it would be more efficient for us to remand and allow the trial court to consider all the evidence, including the newly discovered evidence. Judicial economy also suggests that the trial court and parties might be well advised to proceed to the matter of a permanent injunction and not limit the inquiry to the merits of a preliminary injunction.
IT IS THEREFORE ORDERED:
1. Thompson's Motion to Dismiss is denied.
2. The case is remanded to the trial court in which it now pends for the purpose of allowing Worldcom [sic] to present the evidence referred to in its Motion For Leave To Present Newly Discovered Evidence to the trial court, which shall consider this evidence and such other evidence that the parties shall present in determining whether to grant a preliminary injunction to Worldcom [sic]. The trial court is specifically granted leave,...
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