The Indiana Court of Appeals issued an opinion in the case of Lange v. Sisters of St. Francis (pdf). A fine firm from the City of Lafayette won on appeal, so I can’t be too critical, but at the same time, I feel a little bad for the losing plaintiff — at least if the facts alleged by the plaintiff are accurate.
The plaintiff filed a complaint having to do with, as she characterized things, premises liability and medical malpractice at a hospital. The hospital moved to dismiss based on failure to comply with the medical malpractice act which requires you to jump through some procedural hoops before your claim can go forward. The plaintiff responded that, at least, her premises liability claim should go forward. The trial court held a hearing on March 26, 2008. As of May 5, 2008, the court had not issued its ruling. Counsel for the Plaintiff called the clerk and was notified that the court hadn’t yet ruled. The court did rule on May 7, 2008, two days later – granting the defendant’s motion to dismiss. The court’s docket said that the orders went out to parties. An aggrieved party has 30 days from a court’s order to file a notice of appeal. (You can see where this is going.)
Counsel for the Plaintiff says that it did not get a copy of the order until June 17, 2008 when Plaintiff’s lawyer called the court again. And, in fact, Plaintiff introduced evidence suggesting that the Defendant also did not get a copy of the notice until well after (approximately 30 days) the court issued the order. The gist of this sad tale is that Plaintiff did not get a chance to appeal the court’s order because, according to the Plaintiff, the court did not send out a copy of the order.
The Court of Appeals, essentially, said “tough luck” because the court’s docket says the order was mailed, that means it was mailed. And, in any case, Plaintiff waited 43 days between calls to the Clerk checking on the status. Montgomery County’s docket is available online through a private company called Doxpop. So, if you have a case pending there and you don’t want to purchase Doxpop’s product (no disparaging them — they are a fine company, but a party might not feel like buying from them as a condition of conducting business before that court), then your primary option, it would seem, is to call the clerk repeatedly. I’m sure court staffs and Clerk’s offices would be delighted to have a little extra work.
In Tippecanoe County, we have public, online access to the court docket, so this sort of thing isn’t ordinarily an issue for me unless I have something pending out of county. But, the fact is that sometimes it takes courts a little while to get around to issuing an order. And, sometimes, a piece of paper gets misdirected on its way out of the court. (Some courts, it must be said, seem to misdirect more items than others.) In this case, the two unfortunate events came together with pretty severe consequences (assuming, for the sake of argument, that the Plaintiff had a shot at getting the trial court’s order overturned on appeal.)
My personal inclination is not to be a pest. Sometimes a judge doesn’t get around to issuing an order because he or she has a hundred other things on his or her desk. And, most court offices have more work than they have staff to handle. So, if it’s not prejudicing my client, I’d prefer to let the court get around to issuing its orders in due course; calling the court from time to time to check in if its taking an unusual amount of time. (And, you don’t want to be the party pushing for an order to get issued for fear that this might incline a judge to look at your position unfavorably. I don’t have any evidence that this ever happens, but the fear is there.)
Bottom line – the Court of Appeals strictly enforces its time lines and you have to do everything in your power to make sure you don’t blow a deadline.
All the more reason for Indiana to adopt an E-filing system comparable to what the federal courts use. I was somewhat surprised at the dismissive tone of the court’s opinion, particularly the footnote mentioning that the plaintiff’s timing “just happened” with the 30 day appeal deadline. Considering how the Indiana Supreme Court had handled statements in briefs that obliquely question the courts’ integrity, I was surprised to see the Court all but call Plaintiff’s counsel a liar (and while I practice on the defense side, I have to note that the plaintiff’s firm in this case is quite highly regarded on both sides of the bar).
I know nothing about this particular trial court, but in my experience, things like this happen all the time, and as you note, in some courts more than others. I don’t dispute that the Court of Appeals may well have reached the right decision on the text of the rules here, but as a practical matter I assign zero credibility to the CCS statement that notice was sent. That’s boilerplate–stuff like this has happened to me, and the CCS always says notice sent. Recently, I missed a pretrial conference because our appearance, filed over a year earlier, didn’t make it into the court’s computer system. At first, all I could find was the cover letter and the certified mail receipt verifying that the clerk had accepted whatever we sent that day. The court wasn’t inclined to accept that as proof until I did locate the file-stamped appearance (then was is the point of rule 5(F) anyway?).
I suppose this is a nice example of the divide between the bar. The court finds completely implausible something that is nearly a weekly occurrence in a busy litigation practice.
Under the rules, the trial court had 30 days to rule after the hearing. If it does not it loses its jurisdiction under the lazy judge rule. The plaintif could have pointed that out to the clerk and have it certified which means it goes to the Supreme Court and the court apoints a special judge. This is the so called lazy judge rule that attorneys hate to use because it pisses off the judge. I did it recently in Hendricks County.
I guess he could have argued the court had no jurisidiction when it didn’t rule within 30 days. I’m pretty sure he’s waived that though by not raising it.
Indiana Trial Rule 53.1, the “lazy judge” rule, is triggered by application of a party if a court fails to rule on a motion within 30 days, but such an application is not mandatory and I don’t read the rule as stripping jurisdiction absent such a petition. Certainly, Plaintiff would have been entitled to file a lazy judge application at any time after April 25, but absent such a motion, I think the court had jurisdiction to rule when it did.
Actually it’s not a motion that you file when you use the speedy trial rule. Rather you file a praecipe with the clerk and the clerk has to certify if the motion has been pending 30 days. If it has, the court at that point is divested of jurisdiction and the Supreme Court assigns a special judge. (I suppose the SCT could simply reassign to the same judge.)
The trial clerk and trial judge have no authority to stop the speedy trial praecipe from proceeding. Either it’s 30 days or its not. I think you’re right though someone has to file for it or its waived.
I think the rule speaks in terms of an “application,” but whether it’s a motion, application, or praecipe, there’s no doubt that it’s a matter of right after 30 days. On the other hand, if every party who was entitled to “lazy judge” relief sought it, the Supreme Court would need dozens of new employees. I probably just misunderstood what you meant by “waived.” I thought you were saying that the Plaintiff should have argued on appeal that the trial court didn’t have jurisdiction to dismiss the case after 30 days. It’s sounds like we agree on the procedure, but I would take exception to the notion of “waiver” because it implies that the Plaintiff’s attorney did something wrong by not filing the lazy judge application. In all but the most egregious cases, a phone call to the court’s staff will leader to a quicker ruling than will the ordeal of getting a special judge. For some motions, such as complex, multi-party, multi-issue summary judgment motions, taking more than 30 days is perfectly reasonable.
John M.
I think we’re in agreement. The reason you don’t see more lazy judge motions is that the attorneys know that you will so piss off the judge you probably can’t go into that court again. The judge has to prepare a report to the Supreme Court saying why he screwed up.
In the case I had, the clerk tried to “deny” the praecipe (actually I think that’s what they call it – I read the rule closely) claiming the judge wasn’t informed of the responses to the original motion. The court then proceeded to set the matter for a hearing.
I told the Clerk she had no authority to deny the praecipe and that it was based on the original filing of the motion not the responses. (Which I’m sure the judge knew about given the electronic docket anyway.) I informed the court that the court’s jurisdiction ended with my filing of the praecipe. I threatened to take the Clerk and Judge before the Indiana Supreme Court on mandamus. They backed down and I got the case to a special judge.
I guess one could argue that the passage of the 30 days alone divests the court of jurisidction. (The rule is not entirely clear.) It makes sense that the litigant needs to do something like file the praecipe. Once the 30 days run and the praecipe is filed, the court’s jurisidcition is over.
Again, it’s an extreme measure and I was desperate. The judge had sat on a million dollar estate case for going on four years. The exector wasn’t even required to file a proper inventory. We think millions have been siphoned off the estate by the executor who had been disinherited by the decedent. Don’t ask my why a person would give inheritances to three children and then name the one he disinherits as the executor. It just sets up a bad dynamic.
I’m pretty sure it’s the filing of the praecipe that removes jurisdiction, not the mere passage of the 30 days. I seem to recall reading a case where the praecipe got filed after the court’s order, and the order stood.
And I also agree with your assessment of why it doesn’t get used much. You have to work with these judges in the future. So, unless it’s critical to your case or the delay becomes egregious, it’s not a tool you really want to use.
So do you think that the judge’s jurisdiction ends with you filing the praecipe or it ends with the clerk’s determination that a motion was not ruled on for 30 days, or the judge’s jurisdiction ends only after the Supreme Court appoints a special judge? Which one? I filed the 53.1 praecipe on the 4th of October, the judge ruled on the opposing counsel’s motion to strike on the 5th of October. Did the judge still have the jurisdiction to rule on the 5th?
Is four months too long to wait for an order from a Monroe County Circuit Judge? Hearing in June. Still waiting on an order from the court. I find this to be outrageous. Not a very complicated case; family law arguing over outstanding bills and taxes. Pretty cut and dry.
I was in a civil court case that ended Jan. 29th, 2015, the “Findings of Facts and Conclusions” were due March 10th. That’s over a year. No one ever knows what a judge is thinking. I’ve been told to file a “Lazy judge” notice by at least three lawyers, though none will take the case. They say I have to go back to my lawyer and have him file. He pretty much let me down, or was overwhelmed/outmaneuvered by the attorneys of the covert psychopath that time-manipulated the court’s time, so much so, that the judge stopped the case and said he didn’t want to hear the case like it was a divorce. He informed my attorney that he had ten minutes to show pieces of evidence he thought were important. I pleaded with him to show them, but all he said was “You’re making us look bad. No, your Honor.” My evidence just sat there on the table. Important evidence that would have proven the defendant’s lies. All I can think of is that he hasn’t made a decision because he doesn’t have the info he needs. I don’t know what goes into a “lazy judge” notice, but is there anything I can do? If I have to use the lawyer I had, who has all my materials, I’m afraid he won’t admit that he won’t say that he said I was making us look bad and that he said no. It should show up in the audio, but he refused to get that for me until we got the decision. This is something so wrong.