FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

JEFFREY A. MODISETT     TULA KAVADIAS
Attorney General of Indiana     MELISSA L. ROHRER    
    Kavadias & Associates
THOMAS D. PERKINS    Crown Point, Indiana
Deputy Attorney General
Indianapolis, Indiana

LAKE COUNTY JUVENILE DETENTION     )
CENTER, et al,                      )
    Appellants-Defendants,          )
                                    )
        vs.                         )    No. 45A04-9805-JV-263
                                    )
J.M.D., DECEASED, et al,            )
                                    )
    Appellees-Plaintiffs.           )

                                

ROBB, Judge

an answer or the failure to timely file an answer. Filing an answer triggers the running of the ten day period; however, failure to serve the answer should likewise toll the period. We conclude that a party has ten days, from the first date an answer is filed, to file a motion for change of venue, provided that the answer was served when filed. This is equally true where a co-defendant fails, without explanation, to serve an answer within a reasonable time.
    Here, the first answer filed was never served upon the Juvenile Division. The second answer filed was served, but not for twenty-two days after it was filed, a time period which we hold to be unreasonable for purposes of T.R. 76(C). The first answer actually served upon the Juvenile Division was the answer of the Detention Center, on January 28, 1998. Therefore, the ten day period for filing a motion for change of venue began on this date, even though this was the third answer filed. Because the Juvenile Division filed its motion for change of venue two days later, it was timely and the trial court erred in denying it.
    Reversed.
KIRSCH, J., concurs.
STATON, J., dissents with opinion.

LAKE COUNTY JUVENILE DETENTION    )
CENTER, et al,    )
            )
    Appellants-Defendants,    )
            )
        vs.    )    No. 45A04-9805-JV-263
            )
J.M.D., DECEASED, et al,    )
            )
    Appellees-Plaintiffs.    )

STATON, Judge, dissenting.

    I dissent.
    Today, the majority seeks to rewrite T.R. 76(C). It ignores the key language of the Rule which freezes the issues without further delay by filing dilatory motions. The key word is "filed" and not "served" as proposed by the majority. Here, the dilatory motion for change of venue was attempted more than ten days after the first answer had been filed. The trial court should be affirmed and T.R. 76(C) should remain unaltered.

days of finally being served with a co-defendant's answer, the majority concludes that the motion was timely.
    I disagree with the majority's holding for two reasons. First, the majority seeks to rewrite a trial rule. T.R. 76(C) does not provide that the ten-day period should be tolled until an answer is served. The rule provides that the change of venue motion “shall be filed not later than ten [10] days after the issues are first closed on the merits.” In multiple-defendant lawsuits, the issues are closed on the merits when the first answer is filed, not served. See Johnson, 575 N.E.2d at 1081. By requiring that the ten-day period be tolled where an answer has not been served, this court is, in effect, rewriting T.R. 76(C). Such action is beyond the power of this court. Only the Indiana Supreme Court may alter or amend the trial rules. In re Estate of Moore, 155 Ind. App. 92, 291 N.E.2d 566, 568 (1973); see T.R. 80(D). To the extent that T.R. 76(C) is inequitable as applied to the facts of this case, only the supreme court may address this inequity by amending the rule.
    Second, the majority's holding contravenes precedent of this court. In Annon II, Inc. v. Rill, 597 N.E.2d 320 (Ind. Ct. App. 1992), trans. dismissed, this court considered whether T.R. 6(E) extends the time for filing a motion to change venue by three days. T.R. 6(E) states:
    Whenever a party has a right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three [3] days shall be added to the prescribed period.

Id. at 324 (emphasis in original). In rejecting the argument that T.R. 6(E) extends the time period, this court held:

    This holding is directly applicable to the present case. The court in Annon II interpreted T.R. 76(C), and held that the ten-day time limit is triggered by the filing of an answer, not service of an answer or notice that an answer has been filed. Contrary to the majority's suggestion, Annon II does address the failure to serve an answer, and holds that this failure is irrelevant to the determination of whether a motion to change venue is time barred. This holding is not limited simply because the court took the additional step of applying it specifically to T.R. 6(E).
    Because the majority attempts to rewrite T.R. 76(C) while ignoring this court's precedent, I dissent.

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