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COA maintains that belatedly filed records result in dismissal

October 11, 2016

The Indiana Court of Appeals has reversed an Allen Superior Court decision after finding that the trial court erred when it did not dismiss a case despite the fact that the record was not filed in a timely manner.

The case of Allen County Plan Commission, et al. v. Olde Canal Place Association, et al., 02A03-1412-PL-441, began in June 2014, when MRK II LLC filed a petition to rezone a parcel of property from commercial to residential and an application for approval of a development plan for a multi-family residential complex on the property. The Allen County Plan Commission approved the applications that July.

The following month, the Olde Canal Place Association filed a petition for judicial review challenging the commission’s approval of the applications, then requested an extension of time to file the record. However, OCPA had not filed the record by Nov. 21, prompting MRK to file a motion to dismiss. OCPA subsequently filed the record a few days later and also filed the affidavit of its attorney, Robert Westfall, who claimed he “mistakenly thought that because the … commission would be preparing the record internally, it would also file same with the court.”

The Allen Superior Court granted MRK’s motion to dismiss in December, but OCPA asked for the dismissal to be set aside on the basis that its failure to timely file was the result of a mistake and that it had a meritorious claim because it believed the commission’s decision regarding MRK’s applications was arbitrary, capricious and not supported by substantial evidence.

The trial court granted the motion to set the dismissal aside, and MRK appealed, arguing that the trial court abused its discretion under Trial Rule 60(B) when it granted OCPA’s motion for relief from judgment. Further, MRK argued that OCPA was unable to establish a meritorious claim because it cannot belatedly file the record and because the absence of the record automatically dismisses its petition for judicial review.

A panel of the Indiana Court of Appeals agreed Tuesday, pointing to Indiana Supreme Court precedent and its own precedent that calls for the dismissal of a case if a record is not filed on time.

“Because OCPA is not permitted to belatedly file the record, the record is not, and it will never be, properly before the trial court,” the Court of Appeals wrote. “Without the record, OCPA’s petition cannot be considered.”

The appellate court reversed and remanded the case with instructions to vacate the trial court’s judgment setting aside its dismissal of OCPA’s petition for judicial review.

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