MEMORANDUM DECISION
May 13 2015, 10:04 am
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
Leanna Weissmann Richard A. Butler
Lawrenceburg, Indiana Jessica L. Butler
Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Lawrenceburg, Indiana May 13, 2015
Board of Public Works & Safety, Court of Appeals Case No.
15A01-1410-PL-463
Appellant-Defendant,
Appeal from the Dearborn Superior
v. Court
The Honorable James B. Morris,
Douglas Taylor, Special Judge
Appellee-Plaintiff. Cause No. 15D02-1310-PL-67
Najam, Judge.
Statement of the Case
[1] The City of Lawrenceburg Board of Public Works and Safety (“the Board”)
appeals the trial court’s dismissal of Douglas Taylor’s amended complaint
without prejudice. The Board contends on appeal that under Trial Rule 41(A)
the dismissal of Taylor’s amended complaint was an adjudication on the merits
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and, as such, that the trial court was required as a matter of law to dismiss his
amended complaint with prejudice. The Board also contends in the alternative
that the trial court abused its discretion when it dismissed Taylor’s amended
complaint without prejudice. We need not address the Board’s contentions but
consider only the following dispositive issue: whether the Board has standing
to pursue this appeal. We dismiss.
Facts and Procedural History
[2] On October 25, 2013, Taylor filed his complaint against the Board after it
terminated his employment with the Lawrenceburg Police Department. In the
caption and body of his complaint, Taylor labeled the Board as “City of
Lawrenceburg, Indiana Board of Public Works and Safety.” Appellant’s App.
at 6. On December 5, the Board, adopting Taylor’s label for it in its own
caption, moved to dismiss Taylor’s complaint with prejudice because Taylor
had “failed to name the real party in interest.” Id. at 9. On July 16, 2014,
Taylor filed his response to the motion to dismiss and “agree[d] that he ha[d]
failed to name the real party in interest,” which should have been “the City of
Lawrenceburg rather than the Defendant Board of Public Works and Safety.”
Id. at 11. As such, Taylor agreed that the Board’s “Motion to Dismiss should
be granted,” albeit “without prejudice.” Id. at 11. That same day, the court
granted the motion to dismiss without prejudice. The court’s caption for that
order identified the Board as “City of Lawrenceburg Indiana Board of Public
Works.” Id. at 12.
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[3] On July 25, 2014, Taylor filed his amended complaint against the “City of
Lawrenceburg” (“the City”). Id. at 13. Taylor did not name the Board as a
party in his amended complaint. On July 30, the City, adopting Taylor’s label
for it in its caption, filed a motion to dismiss the amended complaint on the
grounds that the amended complaint was untimely. On August 6, Taylor
agreed to voluntarily dismiss his complaint pursuant to Indiana Trial Rule
41(A)(1)(a). On October 3, the court granted the City’s motion to dismiss
“without prejudice” (“the October 3rd Order”). Id. at 5. The caption of that
order erroneously named the Board rather than the City as the defendant.
[4] On October 28, the Board filed a notice of appeal from the October 3rd Order.
In its notice of appeal, the Board identified itself using the label from Taylor’s
original complaint. In particular, the notice of appeal identifies one appellant,
which it labels as the “City of Lawrenceburg, Indiana Board of Public Works.”
Notice of Appeal at 1.
[5] On March 4, 2015, Taylor moved to dismiss the Board’s appeal on the grounds
that the Board was not a party to the judgment being appealed and, therefore, it
lacked standing to pursue the appeal. In response, counsel for the Board stated
that her “appearance was . . . for both the City . . . and the Board . . . .”
Appellant’s Verified Response to Motion to Dismiss at 1. In support of this
assertion, counsel stated that “[b]oth [the City and the Board] are listed in the
notice [of appeal], separated by a comma to denote they are separate entities.”
Id. at 2. Counsel also stated that, following the dismissal of the original
complaint, “the cause number remained the same, the Board remained listed as
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a party in the [CCS], and the trial court continued to include the Board in its
captions . . . .” Id. Our motions panel denied Taylor’s motion to dismiss on
March 27.
Discussion and Decision
[6] The Board asserts that the trial court erred when it dismissed Taylor’s amended
complaint without prejudice. But, on cross-appeal, Taylor asserts that our
motions panel erred when it denied his motion to dismiss this appeal. Because
Taylor’s argument raises a question of our jurisdiction, we address it first.
Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans.
denied. As we have explained:
it is well established that a writing panel may reconsider a ruling
by the motions panel. Miller v. Hague Ins. Agency, Inc., 871
N.E.2d 406, 407 (Ind. Ct. App. 2007). While we are reluctant to
overrule orders decided by the motions panel, this court has
inherent authority to reconsider any decision while an appeal
remains in fieri. Id. This is especially true where, as here, after
considering a more complete record than was available to the
motions panel, and the appellate briefs, we have determined
there is clear authority establishing that the motions panel erred.
See Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind. Ct. App.
2006).
Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011).
[7] Taylor asserts that the Board lacks standing to pursue this appeal. We have
explained standing as follows:
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A would-be party must first have standing to seek relief from the
courts. Standing is defined as having a “sufficient stake in an
otherwise justiciable controversy.” Ind. Civil Rights Comm’n v.
Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999).
Like the real-party-in-interest requirement, the point of the
standing requirement is to insure that the party before the court
has a substantive right to enforce the claim that is being made in
the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind. 1995).
Standing is “a significant restraint on the ability of Indiana courts
to act, as it denies the courts any jurisdiction absent an actual
injured party participating in the case.” Id. at 488. Moreover:
The standing requirement mandates that courts act in real
cases, and eschew action when called upon to engage only
in abstract speculation. An actual dispute involving
those harmed is what confers jurisdiction upon the
judiciary: For the disposition of cases and
controversies, the Court requires adverse parties
before it. Standing focuses generally upon the
question whether the complaining party is the
proper person to invoke the Court’s power.
However, more fundamentally, standing is a
restraint upon this Court’s exercise of its jurisdiction
in that we cannot proceed where there is no demonstrable
injury to the complainant before us.
Id. (first emphasis added; quotation omitted). In order to have
standing, the challenging party must show adequate injury or the
immediate danger of sustaining some injury. Ind. Civil Rights
Comm’n, 716 N.E.2d at 945 (citing Pence, 652 N.E.2d at 488).
Id.
[8] We agree with Taylor that the Board lacks standing to pursue this appeal. The
Board was not a party to Taylor’s amended complaint and, therefore, could not
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have been a party to the October 3rd Order, which dismissed the amended
complaint. And we reject the Board’s assertion that the caption on the October
3rd Order is binding. “[W]e do not elevate form over substance by refusing to
ignore what the conduct tells us.” Old Nat’l Bancorp v. Hanover Coll., 15 N.E.3d
574, 578 (Ind. Ct. App. 2014). Here, the substance of the parties’ conduct
before the trial court makes clear that the Board was a party to the original
complaint, but the Board moved to dismiss that complaint for failure to name a
real party in interest. Taylor conceded this point and the trial court dismissed
his original complaint without prejudice. Taylor then filed an amended
complaint in which he named only the City, not the Board, as a party. The
proceedings before the trial court make clear that the trial court’s caption on the
October 3rd Order was simply an error in form.
[9] Indeed, the Board cannot both assert in the trial court that it is not a real party
in interest yet assert in this court that it has standing to pursue this appeal. In
other words, we agree with Taylor that the Board, having previously claimed
that it was not a real party in interest and having been dismissed upon its own
motion on those grounds, is not a party of record in Taylor’s subsequent action
against the City in the trial court. Thus, the Board is judicially estopped from
bringing this appeal from the October 3rd order. See, e.g., Morgan Cnty. Hosp. v.
Union, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008) (“Judicial
estoppel . . . prevent[s] a litigant from asserting a position that is inconsistent
with one asserted in the same or a previous proceeding.”), trans. denied.
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[10] We also reject the Board’s argument that the placement of the comma in its
name in its notice of appeal demonstrates that it is really both the City and the
Board, not just the Board. Again, in his original complaint, Taylor named only
the Board as the defendant, and he labeled the Board as “City of Lawrenceburg,
Indiana Board of Public Works and Safety.” Appellant’s App. at 6. In both its
December 5th motion to dismiss and the notice of appeal, the Board adopted
Taylor’s label for it. The Board did not suggest to the trial court that the
placement of the comma in this label represented two entities rather than one.
Moreover, the Board’s new argument on appeal would require this court to
label the Board as the “Indiana Board of Public Works and Safety.” This is
unquestionably not the Board’s title. As such, we reject this argument.
[11] In sum, we agree with Taylor that the Board is the only appellant in this appeal
and that the Board lacks standing to pursue the appeal. As standing is a
prerequisite to this court’s jurisdiction, we dismiss this appeal.
[12] Dismissed.
Baker, J., and Friedlander, J., concur.
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