State Ex Rel. Harris v. Scott Circuit Court , 437 N.E.2d 952 ( 1982 )

HUNTER, Justice.

This is an original action brought by rela-tors following our denial of a temporary writ of mandate and prohibition on October 26, 1981. The case originated as a challenge to the constitutionality of the Indiana Occupation Income Tax Act, Ind.Code § 6-3.5-3-1, et seq. (Burns 1978), and on June 30, 1980, we held the act to be unconstitutional. Clark v. Lee, (1980) Ind. 406 N.E.2d 646. Thereafter, further proceedings were held in the respondent court to provide for a proper refund procedure for all persons who were members of the class affected by the collection of this tax.

The relators in this action are nine named plaintiffs involved in the class action who hired an attorney, Mr. John K. Gordinier from Louisville, Kentucky, to represent them. The named plaintiffs, through Mr. Gordinier, also hired Mr. Charles W. Hoo-denpyl, Jr., of Jeffersonville, Indiana, as local counsel. The court determined that there were over 7,000 absent class members involved in the case. At some point during the refund proceedings in the Scott Circuit Court, a dispute arose between Mr. Gordinier and Mr. Hoodenpyl concerning the proper distribution of attorney fees. On February 20, 1981, Mr. Gordinier told Mr. Hoo-denpyl that the named plaintiffs had discharged Mr. Hoodenpyl from the case. Accordingly, Mr. Hoodenpyl filed a motion for leave to withdraw his appearance as counsel with the respondent court. The court took this motion under advisement and subsequently denied it. However, on August 14, 1981, the court entered an order withdrawing the appearance of Mr. Hoodenpyl as counsel for the named plaintiffs and appointing him as counsel for the absent class members and as lead counsel for the class members during all further proceedings. The relators then submitted their writ of mandamus with this Court mandating the respondent trial court to vacate its order of August 14, 1981. We hereby set out our reasons why the majority of this Court voted to deny the writ.

Relators raise several issues for our consideration but, due to our disposition of the case, it is only necessary for us to discuss the following issue: Was the trial court authorized under Ind.R.Tr.P. 23 to exercise its discretion to appoint counsel for absent class members? This precise issue has not been previously dealt with in our state, but has received considerable attention in other jurisdictions.

It is clear that an analysis of the trial court’s duties under Federal Rule 23 is fully applicable under our Ind.R.Tr.P. 23 as our rule is based upon the federal rule. First, it is well settled that Federal Rule 23 vests the trial judge with wide discretion in his application of the rule’s various guidelines and imposes upon him the duty to continually manage and supervise a class action. Pettway v. American Cast Iron Pipe Co., (5th Cir. 1978) 576 F.2d 1157; Appleton Electric Co. v. Advance-United Expressways, (7th Cir. 1974) 494 F.2d 126. The common thread running through all the federal cases is the overriding concern that each member of the class—named and absentee—is accorded adequate representation. In order to insure this adequate representation, the trial court in his discretion may appoint separate counsel to protect the interests of absent members of the class and may appoint additional counsel to represent the interests of subclasses. Howard v. McLucas, (M.D.Ga.1980) 87 F.R.D. 704; Esler v. Northrop Corporation, (W.D.Mo.1979) 86 F.R.D. 20; Cullen v. New York State Civil Service Commission, (2d Cir. 1977) 566 F.2d 846; Armstrong v. O’Connell, (E.D.Wis.1976) 416 F.Supp. 1325; 7 Wright & Miller, Federal Practice and Procedure, Civil (1972) § 1765 at pp. 617-625.

In this case, the trial court found that Mr. Hoodenpyl should be appointed as counsel for the absent class members because of his participation in and familiarity with this action since its commencement. The court stated:

“The court further finds that it is in the best interests of the absent class members for the court to appoint counsel for them in order to strengthen the representation of the absent class members, to provide for the protection of the absent class members, and to promote the vigorous prosecution of this action on behalf of the absent class members, including the further proceedings on the pending motion to correct error, which proceedings the court believes to be in the best interests of the absent class members.”

The court further found that the appointment of Mr. Hoodenpyl would eliminate the possibility that absent class members would not be bound by the final order or judgment entered in this action due to lack of adequate notice or lack of adequate representation and would provide assurance that there would be continuing availability of qualified resident counsel to continue the action on behalf of the absent class members after the action involving the nine named plaintiffs is concluded.

The record shows continuing vigorous representation by Mr. Hoodenpyl on behalf of the absent class members including actions taken to insure adequate notice for the absent class members, the filing of fee petitions in order that there will be a hearing on the issue of the amount of attorney fees, and petitions filed which would increase the amount of interest due to class members. Relators have failed to show that Mr. Hoodenpyl is not qualified to represent the absent class members, or has acted in an unethical manner, or has not proceeded with vigorous representation on behalf of his clients. The appointment of Mr. Hoodenpyl as counsel for the absent class members has not disrupted the progress of litigation and has not deprived the nine named plaintiffs of their chosen counsel. In fact, the representation of the entire class appears to have been substantially facilitated. Accordingly we find that the trial court was acting within his discretion and there was no abuse of that discretion in this case.

It is well settled that writs of mandate and prohibition will be issued only where the trial court has an absolute duty to act or refrain from acting. State ex rel. Neese v. Montgomery Circuit Court, (1980) Ind., 399 N.E.2d 375; State ex rel. White v. Marion Superior Court, (1979) Ind. 391 N.E.2d 596. The extraordinary remedy of a writ is not appropriate unless a clear and obvious emergency exists and the failure of this Court to act would result in substantial injustice. State ex rel. Indiana State Board of Finance v. Marion County Superior Court, (1979) Ind., 396 N.E.2d 340. Where the matter lies within the sound discretion of the trial court, this Court will not consider applications for writs of mandate and prohibition since the legal remedy of an appeal is adequate. Accordingly, we will not, by way of issuance of a writ, disturb a discretionary ruling of a court. State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, (1979) Ind., 396 N.E.2d 337.

We find no abuse of the trial court’s discretion in this case. The permanent writ is denied.

DeBRULER and PRENTICE, JJ., concur. PIVARNIK, J., dissents with opinion in which GIVAN, C. J., concurs.