Ken Kocinski v. Jane Cotton, Eighth Street Rentals, LLC (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 08 2018, 9:07 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Jon L. Orlosky
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ken Kocinski, January 8, 2018
Appellant-Defendant, Court of Appeals Case No.
48A02-1707-MI-1639
v. Appeal from the Madison Circuit
Court
Jane Cotton, The Honorable Angela Warner
Eighth Street Rentals, LLC Sims, Judge
Appellee-Plaintiff Trial Court Cause No.
48C01-1706-MI-0478
May, Judge.
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[1] Ken Kocinski and Jane Cotton own properties adjacent to each other. Around
May 2017, it became necessary for Cotton to complete repairs to her property
that required workers access her property via Kocinski’s property. Informal
negotiations regarding Cotton’s use of Kocinski’s property broke down, and
Cotton sought legal remedy.
[2] Kocinski appeals the trial court’s “Order Extending Emergency Injunction and
Temporary Restraining Order and Denial of Change of Judge.” (App. Vol. II
at 8.) He presents six issues for our review, which we restate as:
1. Whether the trial court erred when it treated Cotton’s motion
for emergency injunction and temporary restraining order as a
filed and pending pleading under Indiana Trial Rule 7;
2. Whether the trial court erred when it granted Cotton’s motion
for emergency injunction ex parte;
3. Whether the trial court erred when it granted Cotton’s motion
for emergency injunction and temporary restraining order
without findings as required by Indiana Trial Rule 65(B)(2);
4. Whether the trial court erred when it granted Cotton’s motion
for emergency injunction and temporary restraining order
without first requiring Cotton to post a security bond as required
by Indiana Trial Rule 65(C) or requiring Cotton to submit a
verified complaint or affidavit in support of her motion;
5. Whether the trial court erred when it extended its emergency
injunction and temporary restraining order ex parte and despite
allegations a belated bond had not been posted; and
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6. Whether the trial court erred in denying Kocinski’s motion for
change of judge pursuant to Indiana Trial Rule 76(C).
[3] We conclude the issues presented are moot, and we decline to review the matter
under the public interest exception. Therefore, we dismiss the appeal.
Facts and Procedural History
[4] On June 9, 2017, Jane Cotton and Eighth Street Rentals (collectively,
“Cotton”) filed a motion for emergency injunction and temporary restraining
order against Kocinski. In the process of rehabilitating the property adjacent to
Kocinski’s property, she discovered a significant mold problem in the north
wall of the property, which abuts Kocinski’s property. She stated in her motion
“the only way to get access to the north wall is to enter onto the property
belonging to Ken Kocinski, Defendant.” (App. Vol. II at 15.) Cotton requested
the trial court grant the emergency injunction and temporary restraining order
“allowing structural engineers, Miles Construction and Terminix, their agents
and employees, to enter upon the property of Defendant, to drive construction
equipment on the property of [D]efendant, to bring construction materials onto
the property of [D]efendant between June 12, 2017, and June 23, 2017[.]” (Id.
at 16.)
[5] Kocinski bought the property next to Cotton’s at a tax sale. Cotton indicated in
her motion, “It appears that the lot is not being used for any purpose. It is an
empty, vacant, gravel lot.” (Id. at 15.) Kocinski refused to allow Cotton access
to the lot “in the absence of a $5,000 payment.” (Id.) In his response to
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Cotton’s motion, Kocinski argued “regardless of how Plaintiffs choose to
characterize the Defendant’s property, it is the Defendant’s property and the
Defendant has an absolute right to maintain his property and keep others from
trespassing on his property.” (Id. at 20.) Kocinski also asserted Cotton’s
request for emergency injunction and temporary restraining order “is not a
remedy available at law . . . and the court has no authority to enter any order
sanctioning a continuation of [Cotton’s alleged trespass on Kocinski’s
property].” (Id.) Kocinski urged the trial court to deny Cotton’s motion
because the motion “wholly fail[s] to comply with Indiana trial rules and
seek[s] an unlawful order from the court.” (Id.)
[6] On June 9, 2017, the trial court granted Cotton’s motion and ordered the
specific parties listed in her motion be allowed to enter Kocinski’s property
between June 12 and June 23, 2017. The order also stated, “If Defendant
requests a security [deposit] be posted then a hearing shall be held to address
security issues.” (Id. at 7.)
[7] On June 12, 2017, Kocinski filed a motion to vacate the court’s order
immediately, arguing Cotton’s motion did not comport with several trial rules,
she did not “initiate a recognizable claim that allows the court to exercise
jurisdiction,” (id. at 24), and Kocinski’s due process rights were violated when
the trial court did not hold a hearing on Cotton’s motion and required him to
request a hearing to obtain a security deposit for any damages incurred from
Cotton’s use of his property. Kocinski filed a motion to correct error with
identical arguments the same day.
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[8] The trial court held a hearing on Kocinski’s motions on June 15, 2017. The
trial court denied Kocinski’s motions and set “a security bond in the amount of
$3500.00 to be posted by Plaintiff.” (Id. at 30.) On June 20, Kocinski filed a
motion for change of judge pursuant to Indiana Trial Rule 76(B). The same
day, Cotton filed a motion to extend the trial court’s emergency injunction and
temporary restraining order because the “structural engineer has identified
additional problems with the wall that need to be repaired. Because of this, the
repair will take longer than originally anticipated.” (Id. at 32.) Cotton
requested an extension until July 7, 2017, and indicated she was posting the
bond as ordered by the trial court. Kocinski filed his response to Cotton’s
motion on June 20, reiterating his earlier arguments.
[9] On June 23, 2017, Cotton filed a notice to the court indicating she “will only
need to the end of the day, Tuesday, June 27, 2017, to complete all repairs to
[Cotton’s property] and to clean up and vacate the lot owned by Defendant.”
(Id. at 35.) On June 23, 2017, the trial court granted Cotton’s request for an
extension until June 27, 2017. In the same order, the trial court stated:
The Court hereby denies Defendant’s Motion for Change of
Judge. Trial Rule 76(C) requires a motion be filed within 10 days
of the issues being closed on the merits. Plaintiff filed her
original motion on June 9, 2017, Defendant filed a response to
said motion on June 9, 2017, and the Court granted relief on that
same date. The change of judge was not filed until June 20,
2017, which is 1 day over the 10 day requirement as set forth in
Trial Rule 76(C).
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(Id. at 9.) On June 23, 2017, Kocinski asked the court to declare its June 23
order as a final order pursuant to Indiana Trial Rule 58. The trial court
declared its June 23 order a final order on July 13, 2017.
Discussion and Decision
[10] We first note Cotton did not file an appellee’s brief. When an appellee does not
submit a brief, we do not undertake the burden of developing arguments for
that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002).
Instead, we apply a less stringent standard of review and may reverse if the
appellant establishes prima facie error. Id. Prima facie error is “error at first sight,
on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d
216, 221 (Ind. Ct. App. 2006).
[11] “An issue becomes moot when it is no longer live and the parties lack a legally
cognizable interest in the outcome or when no effective relief can be rendered to
the parties.” Ind. High Sch. Athletic Ass’n, Inc. v. Durham, 748 N.E.2d 404, 410
(Ind. Ct. App. 2001). “When the principal questions in issue have ceased to be
matters of real controversy between the parties, the errors assigned become
moot questions and the court will not retain jurisdiction to decide them.” Id.
Nevertheless, we may decide an arguably moot case on its merits if it involves
questions of great public interest. Annexation Ordinance F-2008-15 v. City of
Evansville, 955 N.E.2d 769, 776 (Ind. Ct. App. 2011), trans. denied. “Typically,
cases falling in the ‘great public interest’ exception contain issues likely to
recur.” In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002).
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[12] The trial court granted to Cotton an emergency injunction and temporary
restraining order that were set to expire at “11:59 p.m. on June 27, 2017.”
(App. Vol. II at 9.) There is no indication the work went beyond that date or
that the emergency injunction and temporary restraining order was extended
beyond that date, and Kacinski does not argue that he was deprived of any
property right after that date. Therefore, the order Kocinski wishes to challenge
is no longer “live” and we cannot offer Kocinski any effective relief. See
Durham, 748 N.E.2d at 410 (“An issue becomes moot when it is no longer live .
. . or when no effective relief can be rendered to the parties.”).
[13] Neither are we persuaded by Kosinski’s assertion that we should entertain his
appeal under the public interest exception to the mootness doctrine. See City of
Evansville, 955 N.E.2d at 778 n.4 (“While we fully understand that this matter
of great public interest to the Remonstrators, the public interest exception as
contemplated by the law involves a public interest to the greater general
public.”).
Conclusion
[14] Because the issues presented are moot, we dismiss Kocinski’s appeal.
[15] Dismissed.
Barnes, J., and Bradford, J., concur.
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