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

IN THE

COURT OF APPEALS OF INDIANA

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

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.
2

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MEMORANDUM DECISION – NOT FOR PUBLICATION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I. Whether Thomas was entitled to have the case withdrawn from the trial 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. 
3

Facts and Procedural History

1

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. 
4

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 
5

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. 
6

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 
7

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 
8

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.” 
9

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. 
10

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. 
11

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. 
12

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. 
13

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. 
14

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. 
15

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