Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE
DOUGLAS M. GRIMES                                  NATIONAL EDUCATION
Douglas M. Grimes, PC                              ASSOCIATION–SOUTH BEND:
Gary, Indiana                                      ERIC M. HYLTON
                                                   JAMES B. CHAPMAN II
                                                   Benesch, Friedlander, Coplan and
                                                   Aronoff, LLP
                                                   Indianapolis, Indiana
                                                   ATTORNEYS FOR APPELLEE SOUTH
                                                   BEND COMMUNITY SCHOOL CORP.:
                                                   ANTHONY W. OVERHOLT
                                                   MAGGIE L. SMITH
                                                   Frost Brown Todd, LLC
                                                   Indianapolis, Indiana
                                                                             FILED
                                                                          May 25 2012, 9:24 am

                             IN THE
                                                                                  CLERK
                   COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




VICTORIA THOMAS,                               )
                                               )
      Appellant-Petitioner,                    )
                                               )
          vs.                                  )         No. 71A03-1107-MI-383
                                               )
NATIONAL EDUCATION ASSOCIATION–                )
SOUTH BEND and SOUTH BEND                      )
COMMUNITY SCHOOL CORPORATION                   )
                                               )
      Appellees-Respondents.                   )
                                               )

                    APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                         The Honorable Michael G. Gotsch, Judge
                             Cause No. 71C01-1012-MI-173
                                      May 25, 2012
               MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

       Victoria Thomas (“Thomas”) filed a petition in St. Joseph Circuit Court seeking

judicial review of the decision made by the Indiana Education Employment Relations

Board (“the IEERB”) which concluded that the National Education Association – South

Bend (“the NEA–SB”) did not violate its duty to fairly represent Thomas in her grievance

against her employer, the South Bend Community School Corporation (“the School

Corporation”). Thomas subsequently filed a praecipe to withdraw the case from the trial

court under Indiana Trial Rule 53.1, alleging that the court had failed to timely set a

hearing on Thomas’s motions and failed to timely rule on Thomas’s motions. After

Thomas’s Rule 53.1 request was denied, she filed a motion to stay the proceedings to

allow her time to file a petition for a writ of mandamus with the Indiana Supreme Court.

The trial court subsequently denied Thomas’s motion to stay and ultimately affirmed the

IEERB’s decision. On appeal, Thomas presents three issues, which we reorder and

restate as:

       I.     Whether Thomas was entitled to have the case withdrawn from the trial
              court because of its alleged failure to timely rule on her motions and/or set
              her motions for a hearing;

       II.    Whether the trial court erred in denying Thomas’s motion to stay the
              proceedings in order to allow her time to file a petition for a writ of
              mandamus and prohibition in the Indiana Supreme Court; and

       III.   Whether the trial court erred in holding a hearing on all pending motions.

       We affirm.


                                            2
                                Facts and Procedural History1

       Thomas was first employed by the School Corporation as a teacher in 1979. By

the beginning of the 2003-2004 school year, she was an assistant principal. At the start of

the second semester of that school year, she was removed from her position as assistant

principal and assigned as a teacher at the Jackson Intermediate School (“Jackson”). After

being assigned as a teacher at Jackson, Thomas became a member of the NEA–SB.

       In the spring of 2004, Thomas was informed that there was an opening for a

special education teacher at Jackson in the upcoming 2004-2005 school year. Thomas

and Ramona Luczkowski (“Luczkowski”) both applied for this position. Luczkowski

was a special education teacher at Jackson who had been informed that she was being

displaced from her position for the upcoming school year. Even though Thomas had

more seniority in the School Corporation, Luczkowski was given the job.

       Based on this, the NEA–SB filed a grievance on Thomas’s behalf, which was

denied by the School Corporation. After further investigation, the NEA–SB determined

that the special education position should have never been posted as open, based on their

reading of a certain provision in the applicable collective bargaining agreement. This

provision provides that “[a]ny teacher whose position is eliminated and the position is

reinstated within ten (10) school days after school starts in the following school year shall

be given two (2) school days to exercise an option to return to that position.” Appellant’s

App. p. 7. The NEA–SB determined that because Luczkowski had been displaced from


1
  Our recitation of the underlying facts of this case comes from the trial court’s findings of fact and
conclusions of law. Thomas makes no argument on appeal that these facts are erroneous.

                                                  3
her position as a special education teacher at Jackson and then the position was restored,

Luczkowski was entitled to be offered the position first. In other words, the position

should never have even been listed as an open position at all. The NEA–SB therefore

declined to further pursue Thomas’s grievance against the School Corporation. Thomas

did not further pursue her grievance and subsequently took a teaching position at another

school in the School Corporation with no loss of pay as a result of not getting the special

education position at Jackson.

       Thomas then filed a complaint before the IEERB, alleging that the NEA–SB

violated its duty to fairly represent Thomas. On November 4, 2010, the IEERB issued an

order denying Thomas’s request for relief. Undaunted, Thomas filed a petition for

judicial review in St. Joseph Circuit Court on December 6, 2010. Both the School

Corporation and the NEA–SB then filed motions to dismiss Thomas’s petition for judicial

review, which the trial court subsequently denied. The NEA–SB filed an answer to

Thomas’s petition for judicial review on February 2, 2011, and the School Corporation

did likewise on February 11, 2011.

       On February 22, 2011, Thomas filed motions to strike the answers filed by the

NEA–SB and the School Corporation. On March 2, 2011, the NEA–SB filed a motion

for an extension of time to respond to Thomas’s motion to strike, which the trial court

granted, giving the NEA–SB until March 29, 2011 to respond. On March 7, 2011, the

School Corporation filed a motion for extension of time to respond to Thomas’s motion

to strike, which the trial court granted, giving the School Corporation until March 21,

2011 to respond. The School Corporation then filed its response to Thomas’s motion to

                                            4
strike on March 21, 2011, and the NEA–SB filed its response to Thomas’s motion to

strike on March 28, 2011. Thomas then filed replies to these responses on March 30,

2011.

         On May 9, 2011, the NEA–SB filed a motion for summary judgment based on the

agency record and requested a hearing on this motion.2 The trial court then entered the

following order:

         The Court, having received Respondent National Education Association –
         South Bend’s Motion for Summary Judgment on the Agency Record and
         Request for Oral Argument, hereby sets this matter for oral argument on the
         1st Day of June, 2011, at 10:00 AM.
         SO ORDERED this 9[th] day of May, 2011.

Appellant’s App. p. 39.

         On May 19, 2011, Thomas filed a praecipe that stated in relevant part:

         Comes now Petitioner Victoria Thomas (“Thomas”), by counsel, Douglas
         M. Grimes, and files Praecipe pursuant to Indiana Trial Rule 53.1(A) in the
         following words:
             1. Thomas filed Motion to Strike Respondent NEA-South Bend’s
                 Answer and Affirmative defenses in the caption case on 22nd day of
                 March, 2011.
             2. The court has failed to set the motion for hearing within thirty (30)
                 days after it was filed.
             3. The court has failed to rule on the motion within thirty (30) days
                 after it was filed.
         Wherefore, Petitioner requests that the Clerk of the court enter the date and
         time of the filing of this Praecipe in the Clerk’s Praecipe book, record the
         filing in the Chronological Case Summary under the case, and determine
         whether or not a hearing has been delayed and whether or not a ruling has
         been delayed beyond the time limits set forth under Trial Rule 53.1.




2
    The School Corporation subsequently joined in and adopted this motion as its own.

                                                     5
Appellant’s App. p. 40. Thomas also filed a similar praecipe with regard to his motion to

strike the School Corporation’s answer. Id. at 43-45.

      Upon receipt of Thomas’s praecipes, the trial court’s administrator telephoned

Thomas’s counsel and informed him of the “usual and customary practice” of the court of

setting “global” hearings, i.e. that the hearing scheduled for June 1, 2011 would be on all

pending motions, not just the motion for summary judgment. Then, on May 27, 2011, the

trial court clerk issued a notice informing the parties that Thomas’s Trial Rule 53.1

praecipe had been denied. Appellant’s App. p. 50.

      Thomas filed an objection to the court setting a hearing on the motion for

summary judgment and requested a stay of “all Proceedings under this case to allow

Petitioner time to file a Petition for Writ of Mandamus and or Prohibition in the Indiana

Supreme Court on the grounds that the [trial] Court lacks jurisdiction to hear any further

proceedings in this case[.]” Id. at 48. Then, on May 31, 2011, Thomas filed a request for

a certified record of proceedings in order to allow Thomas to file a petition for writ of

mandamus in the Indiana Supreme Court.

      On May 31, 2011, the trial court administrator notified Thomas’s counsel by way

of a voice mail message that, at the June 1 hearing, the trial court would consider all

pending motions, including Thomas’s request for a stay. On June 1, 2011, the trial court

held its scheduled hearing.      Although counsel for the NEA–SB and the School

Corporation appeared, Thomas did not appear. The trial court’s secretary then attempted

to contact Thomas’s counsel at his office and left yet another voice mail message that the

court and opposing counsel were in court awaiting his appearance. “When an attorney or

                                            6
a litigant fails to appear, it is the usual and customary practice of the St. Joseph Circuit

Court to afford counsel and parties a fifteen-minute grace period before proceeding with

a hearing.” Appellant’s App. p. 10. The trial court therefore waited for fifteen minutes,

and when Thomas’s counsel still failed to appear, proceeded with the hearing. Minutes

later, the trial court’s secretary brought a message to the court that Thomas’s counsel had

received the court’s messages but indicated that he did not intend to appear because he

believed the trial court had no jurisdiction. The court noted on the record that the trial

court clerk had denied Thomas’s Trial Rule 53.1 request and determined that it

maintained jurisdiction. The court then conducted a hearing on all pending matters and

denied Thomas’s motion to strike the answers of the NEA–SB and the School

Corporation and further concluded that Thomas’s petition for judicial review should be

denied, thus affirming the decision of the IEERB. The trial court entered findings of fact

and conclusions of law to this effect on June 20, 2011. Thomas filed a notice of appeal

on July 18, 2011, initiating the present appeal.

       In the interim, Thomas had filed a verified petition for writ of mandamus and

prohibition in the Indiana Supreme Court, seeking a writ requiring withdrawal of the case

from the trial court pursuant to Indiana Trial Rule 53.1. On July 13, 2011, our supreme

court issued an order which stated in relevant part:

           Relator, by counsel, has filed a verified petition for writ of mandamus
       and prohibition and other application papers under the Original Action
       Rules. Relator seeks a writ requiring withdrawal of her case from the trial
       court (“court”) pursuant to Indiana Trial Rule 53.1, based on the court’s
       alleged failure to rule timely on, or timely set for hearing, Relator’s motion
       to strike the answer and affirmative defenses filed by the National
       Education Association—South Bend (hereinafter “NEA–SB”), one of the

                                              7
respondents in the proceeding below. Relator seeks a writ requiring the
clerk to withdraw the case below from the court and to transfer it to the
Indiana Supreme Court for appointment of a special judge.
    A writ issued under the Original Action Rules is an extraordinary
remedy, viewed with extreme disfavor. State ex rel. Goldsmith v. Superior
Court of Marion County, 463 N.E.2d 273, 275 (Ind. 1984). A writ will not
issue unless the relator has a clear and unquestioned right to relief. State ex
rel. Woodford v. Marion Superior Court, 655 N.E.2d 63, 65 (Ind. 1995).
   The record shows that Relator filed her motion to strike on February 22,
2011. On March 2, NEA–SB filed its motion for an extension of time to
respond to the motion to strike; the court granted an extension until March
29. On March 28, the NEA–SB filed its response to the motion to strike.
On March 30, Relator filed her reply to that response to the motion to strike.
    The record shows further that on May 9, NEA–SB filed its motion for
judgment on the agency record and requested oral argument. Also on May
9, the court issued an order reading, “The Court, having received [NEA–
SB’s] Motion for Judgment on the Agency Record and Request for Oral
Argument, hereby sets this matter for oral argument on the 1st day of June,
2011, at 10:00 AM.” Relator filed her praecipe on May 17, alleging that
the court had failed to rule on, or set for hearing, her motion to strike. On
May 27, the court clerk refused to withdraw the case under T.R. 53.1.
    At the hearing on June 1, the court determined that the motion to strike
should be denied and that the NEA–SB’s motion for judgment on the
agency record should be granted. In its “Findings of Fact, Conclusions of
Law and Judgment” filed June 20, the court addressed the issue of delay
and explained, “Based on the common and ordinary practice in the Courts
of St. Joseph County, the scheduling of a matter for hearing is considered a
global hearing on all pending matters unless the scheduling order
specifically provides otherwise. In this case, the scheduling order did not
indicate otherwise and the Court considered the hearing scheduled for June
1, 2011, as a global hearing.... [T]he Court, having previously reviewed the
Agency Record, and the pending motions of the parties, the Court
conducted a hearing on all pending matters.... The Court denied
Petitioner’s motion to strike the response of the Respondents, and found
that the decision of the Agency should be affirmed.”
   The order of May 9 scheduling “this matter for oral argument” is
unclear. This lack of clarity should have been avoided and easily could
have been avoided by specifying whether the June 1 hearing would be on
the motion for summary judgment on the agency record only or, instead,
would be on “all pending motions” or “all pending matters” in “this case.”


                                      8
            On the other hand, the order’s language is not inconsistent with the
        court’s subsequent explanation that it was setting a global hearing on all
        pending matters. And this is consistent with the court’s finding that its
        administrator contacted Relator’s counsel after the praecipe was filed and
        informed Relator’s counsel of the usual and customary practice of setting
        global hearings and that the administrator later left a message for counsel
        before the June 1 hearing indicating that “pending motions” would be
        considered during the June 1 hearing.
           The language in the order of May 9 is not inconsistent with the court’s
        explanation that it was setting a global hearing on all matters, so Relator
        cannot show a clear entitlement to relief. Because Relator seeks an
        unquestionably inappropriate remedy under the rules and law governing
        writs of mandamus and prohibition, this original action is DISMISSED.
        See Ind. Original Action Rule 2(D). Petitions for rehearing or motions to
        reconsider are not allowed. Orig. Act. R. 5(C).

Appellant’s App. pp. 31-32 (reproducing order from State ex rel. Thomas v. St. Joseph

Circuit Court, No. 71S00-1107-OR-424 (Ind. July 13, 2011)) (record citations omitted).

                                          I. Trial Rule 53.1

        “Commonly called the ‘lazy judge’ rule, Indiana Trial Rule 53.1 provides a

remedy for a litigant whose motion has not been ruled on by the trial judge in the

prescribed amount of time.” Strutz v. McNagny, 558 N.E.2d 1103, 1109 (Ind. Ct. App.

1990), trans. denied. Trial Rule 53.1(A) (2011)3 provides:

        In the event a court fails for thirty (30) days to set a motion for hearing or
        fails to rule on a motion within thirty (30) days after it was heard or thirty
        (30) days after it was filed, if no hearing is required, 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.




3
  Trial Rule 53.1 was amended effective January 1, 2012, after Thomas filed her praecipe and the trial
court clerk denied the same. We therefore refer to the version of Trial Rule 53.1 that was in effect at the
time these matters were decided.

                                                    9
       The procedure for withdrawing the cause from the trial judge is set forth in Trial

Rule 53.1(E), which states that, “[u]pon an interested party’s filing of a praecipe

specifically designating the motion or decision delayed, the clerk of the court must enter

the date and time of the filing in the clerk’s praecipe book, record the filing in the

chronological case summary, and determine whether a ruling has been delayed beyond

the time limitation set forth under Trial Rule 53.1[.]” T.R. 53.1(E).

       If the trial court clerk determines that a ruling on a motion has been delayed

beyond the time in Trial Rule 53.1(A), the clerk must give written notice to the judge and

the Indiana Supreme Court that submission of the cause has been withdrawn effective as

of the time of the filing of the praecipe and record that determination in the chronological

case summary (“CCS”). State ex rel. Crain Heating Air Conditioning & Refrigeration,

Inc. v. Clark Circuit Court, 921 N.E.2d 1281, 1284 (Ind. 2010) (citing T.R. 53.1(E)(2)).

If the trial court clerk determines a ruling has not been delayed, the clerk must notify all

parties of that fact in writing and record that determination on the chronological case

summary. Id. (citing T.R. 53.1(E)(1)). “An original action [in the Indiana Supreme

Court] is the appropriate procedure for enforcing Trial Rule 53.1 when a court clerk

erroneously fails to recognize that a ruling on a motion has been delayed and the case

should be withdrawn after the filing of a praecipe.” Id.

       In the present case, Thomas argues that “[b]ecause the court failed for thirty . . .

days to set Appellant’s motions to Strike Answer and Affirmative Defenses for hearing

and Appellant thereafter filed Praecipe for withdrawal of the case from the Judge,

Appellant was entitled to have the case withdrawn from the court.” Appellant’s Br. p. 8.

                                            10
In making this argument, Thomas sets forth the standard of review and a recitation of the

applicable procedural events. Thomas then states simply, “Appellant was entitled to have

the case withdrawn from the Judge under Trial Rule 53.1(A) (B) (C) and (D).” Id. at 9.

Although she cites State ex rel. McIntosh v. Vigo Superior Court, 946 N.E.2d 1160 (Ind.

2011), Thomas wholly fails to explain what this case held or how it is applicable to the

present case. This argument is therefore waived for failure to present a cogent argument.

See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the

appellant on the issues presented, supported by cogent reasoning.”); Gee v. Green Tree

Servicing, LLC, 934 N.E.2d 1260, 1262 (Ind. Ct. App. 2010) (noting that this court will

not act as a party’s advocate and that the failure to put forth a cogent argument acts as a

waiver of the issue on appeal).

       Moreover, the order of our supreme court in McIntosh provides no support for

Thomas’s argument. In that case, the court noted that the relator “allege[d] that the trial

court failed to rule on a motion within the time required by Trial Rule 53.1 and that the

trial court clerk failed in her duty to withdraw the case from the trial court for

appointment of a special judge after Relator filed his praecipe.” Id. at 1160. After noting

that none of the parties filed responsive briefs, the court simply issued an order granting

the writ without further analysis. The fact that our supreme court has acted in the past to

issue a writ of mandamus and prohibition in no way explains why Thomas’s praecipe to

remove this case from the trial judge should have been granted under the present facts

and circumstances.



                                            11
        Furthermore, our supreme court has already issued its order on this matter and

concluded that a writ of mandamus and prohibition was an “unquestionably inappropriate

remedy” in this case. A similar issue was before this court in Justak v. Bochnowski, 181

Ind. App. 439, 391 N.E.2d 872 (1979). In that case, the appellant claimed that our

supreme court had erred in failing to withdraw the cause from the trial court judge

pursuant to Trial Rule 53.1. Rejecting this claim, we wrote, “It is a fundamental principle

of appellate procedure that this Court has no jurisdiction to review action of our Supreme

Court.” Id. at 448, 391 N.E.2d at 878.

        Admittedly, Thomas frames his argument in a slightly different manner, i.e. that

the trial court clerk should have withdrawn the case from the trial court judge rather than

that the Indiana Supreme Court erred in denying his writ of mandamus directing the clerk

to do the same. But the ultimate question is the same—whether the case should have

been withdrawn from the trial court judge under Trial Rule 53.1.                     The appropriate

procedure for determining this is an original action before our supreme court. See State

ex rel. Crain, 921 N.E.2d at 1284. Thomas properly followed this procedure, but our

supreme court rejected his claim,4 and we will not, and cannot, reconsider it. Justak, 181

Ind. App. at 448, 391 N.E.2d at 878.




4
   Thomas claims in her reply brief that our supreme court’s order denying her petition for a writ of
mandamus and prohibition was not necessarily made on the merits of her claim that the trial court lacked
jurisdiction under Trial Rule 53.1. We disagree. From the language of the court’s order, we think it is
clear that the court considered and rejected Thomas’s claim the trial court clerk should have granted her
Trial Rule 53.1 praecipe.

                                                   12
                                    II. Denial of Motion to Stay

        Thomas also argues that the trial court improperly denied her request to stay

proceedings in order to allow her time to petition the Indiana Supreme Court for a writ of

mandamus and prohibition. Thomas’s argument on this issue is again deficient. After

setting forth the standard of review, she lists the “uncontested facts” which she argues

support her claim that the trial court clerk should have granted her Trial Rule 53.1

praecipe.    Thomas then simply concludes, “[t]he trial court’s action in denying the

Verified Motion for Stay is clearly erroneous, against the logic and effect of the facts

before it and the inferences, which may be drawn from it.” Appellant’s Br. p. 8. Thomas

cites no authority which would indicate that the trial court should have granted her

motion to stay the proceedings. We therefore consider this argument waived for failure

to make a cogent argument.5 See App. R. 46(A)(8)(a); Gee, 934 N.E.2d at 1262.

                               III. Propriety of “Global” Hearing

        Thomas lastly claims that the trial court erred in holding a “global” hearing on all

pending motions without notice. This argument is unavailing. As our supreme court

noted in its order denying Thomas’s petition for a writ of mandamus and prohibition,

although the trial court’s order setting the June 1 hearing could have been clearer, the trial

court repeatedly informed Thomas’s counsel that the June 1 hearing was to be a “global”




5
   We also reject Thomas’s claim that the trial judge, as opposed to the trial court clerk, denied her Trial
Rule 53.1 praecipe. Although the relevant CCS entry does list the name of the trial judge, the notice
informing the parties that Thomas’s Trial Rule 53.1 praecipe had been denied was clearly signed by the
trial court clerk, not the trial judge. Appellant’s App. p. 50.

                                                    13
hearing on all pending matters. Thus, Thomas cannot claim that she was unaware of the

nature of the scheduled hearing.

      We further disagree with Thomas to the extent that she claims that she was unable

to appear at the June 1 hearing without waiving her jurisdictional claim. It is true that

“the benefit of Trial Rule 53.1 ‘may be waived where the deadline for a ruling has passed,

but rather than filing a praecipe to withdraw the cause, a party files pleadings or

otherwise takes voluntary action of record inconsistent with that party’s right to invoke’

that rule. State ex rel. Crain, 921 N.E.2d at 1286 (quoting State ex rel. Koppe v. Cass

Circuit Court, 723 N.E.2d 866, 869 n.1 (Ind. 2000)).

      However, Thomas cites no authority for a claim that simply appearing at the June

1 hearing—where she could have argued the propriety of the stay—would waive her

Trial Rule 53.1 claim. In fact, case law suggests the opposite. See State ex rel. Crain,

921 N.E.2d at 1286 (holding that relator’s filing proposed findings and conclusions did

not act to waive relator’s claim under Trial Rule 53.1 where relator brought Trial Rule

53.1 issue to the court’s attention and submitted its proposed findings and conclusions

only as directed by the court). Thus, Thomas could have appeared at the June 1 hearing

and made her jurisdictional argument without risking waiver.          See Kondamuri v.

Kondamuri, 799 N.E.2d 1153, 1159 (Ind. Ct. App. 2003) (noting that once jurisdictional

challenge has been lodged, party’s contemporaneous or subsequent defense on the merits

does not invoke affirmative relief barring jurisdictional claim) (citing State v. Omega

Painting, Inc., 463 N.E.2d 287, 292 (Ind. Ct. App. 1984)).

      Affirmed.

                                           14
BAILEY, J., and CRONE, J., concur.




                                     15
