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ATTORNEY FOR RELATOR Franklin S. Yudkin Louisville, Kentucky

PRO SE RESPONDENTS & ATTORNEYS FOR PARTIES OPPOSING THE WRIT The Hon. Daniel E. Moore, pro se Jeffersonville, Indiana The Hon. Roger L. Duvall, pro se Scottsburg, Indiana John A. Kraft New Albany, Indiana Robert G. Bottorff II Jeffersonville, Indiana J. Clayton Culotta Jeffersonville, Indiana Gregory F. Zoeller Attorney General of Indiana James E. Porter, Deputy Attorney General Indianapolis, Indiana

FILED
Feb 17 2010, 9:54 am
of the supreme court, court of appeals and tax court

CLERK

______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 10S00-0910-OR-500 STATE OF INDIANA EX REL. CRAIN HEATING AIR CONDITIONING & REFRIGERATION, INC., v. THE CLARK CIRCUIT COURT, THE HON. DANIEL E. MOORE, AS JUDGE THEREOF, AND BARBARA BRATCHER-HASS, AS CLERK THEREOF, _________________________________ Original Action _________________________________ February 17, 2010 Per Curiam.

In the

Relator,

Respondents.

The Relator in this original action is Crain Heating Air Conditioning & Refrigeration, Inc. ("Crain"). The named Respondents are the Clark Circuit Court; the Honorable Daniel E. Moore, the judge of that court; and Barbara Bratcher-Hass, the clerk of that court. On December 7, 2009, this Court granted the Relator a permanent writ of mandamus and prohibition requiring the clerk to withdraw the case pending below from the trial court due to the courts failure to rule timely on a motion for preliminary injunction and to transmit it to this Court for appointment of a special judge. The writ also required Judge Moore to vacate the order he issued after Crain filed its praecipe for withdrawal.

The writ noted that this Court had under advisement whether to issue an opinion explaining its reasons for granting the writ. This opinion states those reasons and clarifies the procedure that may be used to withdraw a case from a court that fails to rule promptly after hearing a motion related to a preliminary injunction.

Background

On August 5, 2009, Crain filed a complaint in the trial court seeking damages and injunctive relief against Defendants Elite Heating, Air Conditioning & Refrigeration, Inc. (Crains competitor), Matthew Roberts (president of Elite), Sarah Roberts (vice-president of Elite), and Amy Jo Lewis, Leon Darnell, Daniel Quinn, and Aaron Courtney (Elite employees who formerly worked for Crain). Crain also filed a motion for a preliminary injunction to prevent Defendants from misappropriating Crains confidential business information and trade secrets and to preserve all information, in electronic or other form, allegedly misappropriated by Defendants through use of computer programs or other means. The court, by its regular judge, Judge Moore, scheduled a hearing on the preliminary injunction request first for August 13 and then for August 20.

On August 13, Darnell appeared and moved for a change of judge under Trial Rule 76(B). The court granted the motion for change of judge, and a panel of three other judges was named for striking. On August 19, Crain filed a response to the motion for change of judge in which Crain quoted Trial Rule 65(A)(3) and argued that it was entitled to a prompt hearing on its 2

request for a preliminary injunction before Judge Moore as scheduled on August 20. Also on August 19, Courtney appeared by counsel, and Elite and the Robertses filed a brief opposing the preliminary injunction request.

Judge Moore presided over the preliminary injunction hearing held on August 20, after all parties appearing acknowledged his authority to hear the request for preliminary injunction. At the end of the hearing, Judge Moore asked that the parties submit proposed findings of fact and conclusion of law with a disk to the court on or before September 14 (a date twenty-five days after August 20) and directed parties to exchange their submissions with the other parties. (Tr. 114.) He also ordered that during the interim "none of these computers are to be destroyed or tampered with pending submission of these findings." (Id.)

On September 9, Courtney filed a written motion requesting a ten-day extension of time to file proposed findings, to and including September 24. On September 11, Judge Moore granted that extension, to and including September 24. On September 14, Crain and Elite submitted proposed findings and conclusions. Also on that day, Crain objected to Courtneys request for an extension of time and quoted Trial Rules 53.1 and 65(A)(3). On September 17, Crain filed a request that the court reconsider its granting of the extension and argued, "[W]e already went past the ten days stated in T.R. 65[(A)](3)," and an extension to September 24 would "take the matter past the 30 days allowed in T.R. 53.1." (R. 199.)

At 9:50 a.m. on Monday, September 21, Crain filed a praecipe alleging the court failed to rule timely on the preliminary injunction motion and asking the clerk, pursuant to Trial Rules 53.1 and 65(A)(3), to review the matter and determine that more than 30 days had passed without a ruling since the conclusion of the hearing on the preliminary injunction motion. On September 22, Judge Moore denied Crains motion to reconsider the extension, and Courtney submitted proposed findings. On September 29, the clerk determined that a ruling on the preliminary injunction request had not been delayed.

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On October 2, Judge Moore issued "Findings of Fact, Conclusions of Law and Order Denying Preliminary Injunction and Other Orders." In addition to denying the preliminary injunction, Judge Moores order determined that some Defendants were entitled to a hearing on their request for attorneys fees for having to defend against a preliminary injunction request that they alleged was made in bad faith, but he explained that the special judge ultimately chosen would set all future hearings and other matters after assuming jurisdiction in the case.

Crain then filed this original action, naming the court, Judge Moore, and the clerk as respondents. Crain requested a writ requiring: (1) the clerk to withdraw the case from the trial court and to transmit it to this Court for appointment of a special judge; and (2) Judge Moore to vacate the order issued October 2. Pursuant to an order allowing responsive briefing, briefs in opposition to the writ were filed.1 On December 7, 2009, this Court granted the writ Crain requested.

Discussion

I. In general, if a court fails to rule on a motion within thirty days after it was heard, "upon application by an interested party, the submission of the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge." T.R. 53.1(A). That time limitation for ruling has listed exceptions, specifically where: (1) the court within thirty days after the filing of a motion orders it considered during the trial on the merits; (2) the parties or their counsel stipulate or agree on the record that the time limitation for ruling on a motion shall not apply; (3) this Court has extended the time for ruling; or (4) the ruling involves a repetitive motion, a motion to reconsider, a motion to correct error, a petition for postconviction relief, or a ministerial post-judgment act. T.R. 53.1(B).

1

Because it was unclear from the record whether Judge Roger L. Duvall, whose name was the remaining name on the panel after striking, had been appointed special judge and Crain alleged "the underlying case" was before Judge Duvall (Pet.

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