ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Stephen Bower					Nels A. Kompier

COHEN & THIROS					Michael N. Pagano

Merrillville, Indiana					FUNK & FOSTER

							Hammond, Indiana

In The

INDIANA SUPREME COURT

											                 ANTHONY TROJNAR,				)	

		Appellant-Respondent,		)			

							)

		v.					)	45SA03-986089-CV-459333

							)	in the Court of Appeals

CAROLE TROJNAR,				)

		Appellee-Petitioner.			)

                          ________________________________________________  

APPEAL FROM LAKE SUPERIOR COURT

The Honorable Edward P. Grimmer, Special Judge

Cause No. 45D02-8807-DR-784

                        _________________________________________________

On Petition To Transfer

August 25, 1998

DICKSON, J.

	This is an appeal from the denial of a party’s timely motion for change of judge in a post-dissolution proceeding.

	In January, 1994, the appellant-respondent, Anthony Trojnar, requested a change of judge under Indiana Trial Rule 76(B).1  The Special Judge, Edward P. Grimmer, denied the motion.  The Court of Appeals reversed the trial court, finding that the motion

for change of judge should have been granted.  Trojnar v. Trojnar, 656 N.E.2d 287, 290 (Ind.Ct.App.1995).  On remand, pursuant to Indiana Trial Rule 79(F)(1),2 Judge Grimmer named a panel of three eligible judges from which the parties could each strike one of the

judges.  While not specifying any time within which to strike, he ordered that they strike

“pursuant to rule.”  Record at 27.  The applicable rule provided that an order naming a

panel of judges for striking may allow the parties up to fourteen days to strike.  Ind.Trial

Rule 79(F)(2).  Judge Grimmer named the panel on December 1, 1995 and transmitted

the order to the Clerk’s office on December 4.  However, the Clerk’s office did not mail

the order to the respondent until December 18, fourteen days after it received the order

from Judge Grimmer.  The appellant’s attorney received the order on December 19 and

immediately struck one of the judges on December 20.  The strike was received by the

Clerk’s office on December 21.  However, December 21 was more than fourteen days after Judge Grimmer had named the panel.

	Judge Grimmer found that the appellant’s motion to strike was not timely filed

because Trial Rule 79(F)(2) “is not predicated upon service of any documents or notice.” 

Record at 45.  Judge Grimmer therefore resumed jurisdiction of the post-dissolution case

pursuant to Indiana Trial Rule 79(F)(3).3

	The appellant filed a motion for relief under Indiana Trial Rule 72(E),4 arguing that he was entitled to relief because the Clerk failed to mail copies of the orders in a

timely manner, thereby preventing him from complying with the fourteen day time limit. 

Judge Grimmer denied this motion as well.  The appellant then filed a request for

certification allowing an interlocutory appeal of the ruling regarding the change of judge. 

Judge Grimmer granted the certification, but conditioned it upon the appellant posting a

cash bond in the amount of $7,000.  For reasons undisclosed by the record, the

interlocutory appeal was never perfected.

	Following a hearing on the merits of the post-dissolution action, this appeal was taken.5  The Court of Appeals affirmed the trial court, Trojnar v. Trojnar, 676 N.E.2d 1094 (Ind.Ct.App. 1997), finding, sua sponte, that the appellant waived his appeal regarding the change of judge motion by failing to perfect immediately an interlocutory

appeal.  Id. at 1096-97.  The court--over a strong dissent from Judge Staton and contrary precedent from the Court of Appeals6--opined that, because Indiana Trial Rule 75 (preferred venue) involves the same concerns as Trial Rule 76 and, because Indiana

Appellate Rule 4(B)(5) requires that a mandatory interlocutory appeal be taken when

Trial Rule 75 is involved,7 Trial Rule 76 is implicitly included in the mandatory requirement of Appellate Rule 4(B)(5).  Trojnar, 676 N.E.2d at 1096.

	In his petition for transfer, the appellant contends that the Court of Appeals

improperly decided this issue because an appeal regarding Trial Rule 76 need not be

brought in an interlocutory appeal, but may be properly brought in a direct appeal.  We

agree with the appellant and Judge Staton’s dissenting opinion.  Our rule expressly

requires mandatory interlocutory appeals only from decisions involving Trial Rule 75. 

The appellant did not waive his appeal by failing to take an interlocutory appeal from Judge Grimmer’s Trial Rule 76 ruling.

	As noted above, Trial Rule 79(F) provides the procedure to be followed for the

selection of a special judge under Trial Rule 76.  A panel of three judges is named and

the parties have up to fourteen days to strike judges from this panel.  The issue here is

whether the fourteen day period begins to run when the judge names the panel, or when

the parties receive notice that the panel has been named.

	The text of this Rule is dispositive:  “Within two (2) days of deciding that a special

judge must be appointed under this section, the judge . . . shall submit a panel . . . to the parties for striking. . . .  The parties shall have not less than seven (7) days nor more than fourteen (14) days to strike as the court may allow.”  T.R. 79(F) (emphasis added).  To

assure that parties have a reasonable opportunity to exercise the rights afforded under the

rule, the time begins to run when the panel is submitted to the parties, not when the panel is submitted by the judge to the Clerk’s office.8  Such submission to the parties means service by the Clerk of a copy of the court order.  Thus, the fact that the Clerk’s office

waited fourteen days to mail the names to the parties cannot divest the appellant of the

fourteen days allotted to strike.  Accordingly, the appellant’s striking was not untimely

filed, and Judge Grimmer should not have resumed jurisdiction over the matter.  Accord State ex rel. Sargent & Lundy v. Vigo Superior Court, 260 Ind. 472, 296 N.E.2d 785 (1973).9

	The appellee also contends that the appellant is not entitled to relief under Indiana

Trial Rule 72(E) because the chronological case summary shows that notice was

eventually sent by the Clerk.  Brief of Appellee at 5.  This rule generally provides that

“[l]ack of notice . . . from the Clerk shall not affect the time within which to contest the

ruling, order or judgment, or authorize the Court to relieve a party of the failure to initiate

proceedings to contest such a ruling, order or judgment.”  Ind. Trial Rule 72(E). 

However, when the Clerk’s mailing of a ruling is not evidenced on the Chronological

Case Summary (“CCS”), the trial court may grant an extension of “any time limitation

within which to contest such ruling, order or judgment to any party who was without

actual knowledge, or who relied upon incorrect representations by Court personnel.”  Id.  Noting that an exception to the strict “lack of notice” provision was adopted “to provide

essentially that counsel could rely on the clerk’s office to send notice and if such notice

was not received, to provide an avenue through which to challenge the mailing of the

notice,” this Court in Markle v. Indiana State Teachers Ass’n, 514 N.E.2d 612, 614 (Ind. 1987), affirmed the grant of such relief where the court’s docket (predecessor to the CCS form now in use) failed to contain a notation assuring that the questioned court orders had

been mailed.  Id.  However, relief was not permitted in Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994), because the CCS contained the Clerk’s notation showing

that the court’s order was mailed to the parties.  As a result of Trial Rule 72, Markle, and Collins, lawyers may rely on the Clerk’s office to send the court’s rulings, and thus, their burden to check regularly the records of each court in which they have a pending case is

lessened, although a proper Clerk’s notation on the CCS will presumptively establish the

fact that notice was mailed.

	The “lack of notice” provision in T.R. 72(E) does not apply in the present case

because notice was, in fact, mailed.  Furthermore, by its express terms, the rule states that

lack of notice “shall not affect the time within which to contest the ruling, order or judgment.”  T.R. 72(E) (emphasis added).  Here, the appellant’s exercise of his right to

strike from the panel of judges did not “contest” the naming of the panel.  The rule does

not apply to preclude the appellant’s right to timely strike following submission of the

panel to the parties.  

	Transfer is granted, thereby vacating the opinion of the Court of Appeals. 

Ind.Appellate Rule 11(B)(3).  Because the appellant timely struck from the panel of

judges named by the trial court, it was error for Judge Grimmer to disregard it and to

resume jurisdiction.  Any subsequent rulings are hereby vacated.  This cause is remanded

for the reinstatement of the appellant’s strike, the resumption of the selection of a special

judge, and for further proceedings consistent with this opinion.

	SHEPARD, C.J., and SULLIVAN, SELBY, and BOEHM, JJ., concur.