Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph v. DeSpirito

ATTORNEY FOR APPELLANT TOWN ATTORNEYS FOR APPELLEE
OF ELLETTSVILLE, INDIANA PLAN COMMISSION Michael Rabinowitch
Darla S. Brown Maureen E. Ward
Sturgeon & Brown, P.C. Wooden McLaughlin LLP
Bloomington, Indiana Indianapolis, Indiana

ATTORNEYS FOR APPELLANT RICHLAND
CONVENIENCE STORE PARTNERS, LLC
Andrew P. Sheff
Sheff Law Office
Indianapolis, Indiana

Carina M. de la Torre
The de la Torre Law Office LLC
Indianapolis, Indiana

______________________________________________________________________________

In the
FILED
Indiana Supreme Court Dec 12 2017, 12:46 pm
_________________________________ CLERK
Indiana Supreme Court
Court of Appeals
No. 53S01-1709-PL-612 and Tax Court

TOWN OF ELLETTSVILLE, INDIANA PLAN
COMMISSION AND RICHLAND CONVENIENCE
STORE PARTNERS, LLC,
Appellants (Respondents below),

v.

JOSEPH V. DESPIRITO,
Appellee (Petitioner below).
_________________________________

Appeal from the Monroe Circuit Court, No. 53C01-1509-PL-1714
The Honorable E. Michael Hoff, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-1611-PL-2559
_________________________________

December 12, 2017

Per Curiam.
 Richland Convenience Store Partners, LLC asked the Town of Ellettsville’s Plan
Commission to amend a subdivision plat so Richland could move a utility easement on its property.
The Commission approved Richland’s request, over the objection of Richland’s neighbor, Joseph
V. DeSpirito, whose property the easement benefits. DeSpirito then sued for judicial review,
declaratory relief and associated damages (attorney’s fees and costs), and preliminary and
permanent injunctive relief. Appellants’ App. Vol. II at 17-24. An agreed preliminary injunction
was entered barring Richland from taking any action in reliance on the Commission’s decision,
pending further court order. Richland and the Commission answered the complaint.

All parties sought summary judgment. An “Order on Judicial Review” (“Order”) entered
October 19, 2016, granted DeSpirito’s motion for summary judgment and denied the others’
motions. The Order concluded the Commission erred in approving relocation of the easement and
ordered the case remanded to the Commission with instructions to dismiss Richland’s request for
plat amendment unless DeSpirito joins it. The Order stated the preliminary injunction remains in
effect, but the Order was silent on DeSpirito’s request for damages and a permanent injunction.
Id. at 16.

Richland and the Commission (collectively, “Appellants”) filed notices of appeal,
purporting to appeal from a final judgment. The Court of Appeals rightly questioned whether a
final judgment has been entered and noted the preliminary nature of the injunction entered. Town
of Ellettsville v. DeSpirito, 78 N.E.3d 666, 672 n.3 (Ind. Ct. App. 2017), vacated. But it added,
“[B]ecause our supreme court has significantly relaxed procedural requirements in this regard, see
In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574 (Ind. 2017) (addressing merits of premature
appeal), we do not consider the issue further.” Id. It went on to reverse the trial court and remand
with instructions to enter summary judgment for the Appellants, reinstate the Commission’s
decision, and conduct further proceedings consistent with its opinion. Id. at 680.

Having granted transfer and heard oral argument, we address appellate jurisdiction
differently. Nothing in D.J. eliminated or relaxed the requirements for appellate jurisdiction. It
reaffirmed that the prerequisites for appellate jurisdiction are (1) entry of an appealable order by
the trial court and (2) the trial court clerk’s entry of the notice of completion of the clerk’s record

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on the chronological case summary (“CCS”). 68 N.E.3d at 578. D.J. explained that in a child in
need of services (“CHINS”) case, the CHINS determination is not a final judgment and that finality
does not occur until the court enters a dispositional order. Id. at 576. There, the trial court found
the children to be CHINS, the parents then filed their separate notices of appeal, the court thereafter
entered its dispositional order, and the clerk later filed the notice of completion of the clerk’s
record. Id. at 577. Appellate jurisdiction was secure in D.J. because the trial court entered its
dispositional order—a final judgment—before the clerk entered the notice of completion of clerk’s
record on the CCS. Under Appellate Rule 8, the notice of completion of clerk’s record is the
document having jurisdictional significance, depriving the trial court of jurisdiction and conferring
jurisdiction in the appellate court. Although the parents had already filed their notices of appeal,
the trial court still had jurisdiction to enter a final judgment because the clerk had not yet entered
the notice of completion of clerk’s record on the CCS, and we concluded the parents’ “premature
notices of appeal did not deprive the Court of Appeals of jurisdiction to hear the appeal.” Id. at
581.

Here, unlike in D.J., the record on appeal shows no final judgment. Indiana Appellate Rule
2(H) defines a judgment as a “final judgment” if, among other things, it disposes of all claims as
to all parties or the trial court expressly determines in writing that there is no just reason for delay
and expressly directs entry of judgment under Indiana Trial Rule 54(B) as to fewer than all the
claims or parties, or under Indiana Trial Rule 56(C) as to fewer than all the issues, claims, or
parties. The Order left the preliminary injunction in place, did not rule on DeSpirito’s request for
damages or a permanent injunction, and did not determine there is no just reason for delay and
expressly direct entry of judgment on less than all of the issues, claims, or parties.

For judicial economy under this case’s particular circumstances, we elect to stay this
appeal’s consideration. We remand this case to the trial court to decide, in its discretion but within
the next 90 days, whether to (1) expressly determine in writing that there is no just reason for delay
and (2) expressly direct entry of judgment under Trial Rule 54(B) as to fewer than all the claims
or parties, or under Trial Rule 56(C) as to fewer than all the issues, claims, or parties. See App. R.
2(H)(2). After that decision, the Appellants shall promptly file a supplemental appendix including
copies of the updated CCS and any new order(s) entered by the court on remand. We caution,

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though, that in the overwhelming majority of cases, the proper course for an appellate court to take
where it finds appellate jurisdiction lacking is simply to dismiss the appeal. See, e.g., In re Paternity
of C.J.A., 12 N.E.3d 876 (Ind. 2014); Ramsey v. Moore, 959 N.E.2d 246 (Ind. 2012).

Notwithstanding Appellate Rule 65(E), this opinion is effective immediately, and the trial
court need not await a certification of this opinion by the Clerk of Courts before exercising the
limited jurisdiction this remand allows. Given this remand’s interlocutory nature, no petitions for
rehearing under Appellate Rule 54(A)(1) shall be filed on this opinion. See App. R. 1 (permitting
deviation from Appellate Rules on Court’s motion).

All Justices concur.

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