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.




Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018             Page 1 of 7
[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


      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 2 of 7
                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

      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 3 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 4 of 7
[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).




      Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 5 of 7
       (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).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 6 of 7
[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.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1707-MI- 1639 | January 8, 2018   Page 7 of 7
