`

Supreme Court stays consideration of appeal

December 12, 2017

After determining a Monroe County appeal that came before the Indiana Court of Appeals was not an appeal of a final judgment, the Indiana Supreme Court has stayed its consideration of the case and remanded for the trial court to decide if it will enter a final appealable judgment.

The Indiana Court of Appeals handed down an opinion in May in the Monroe County case, which stemmed from the Town of Ellettsville Plan Commission grant of a request to amend a subdivision plat to allow Richland Convenience Story Partners, LLC to move a utility easement. Joseph V. DeSpirito, Richland’s neighbor who benefitted from the location of the easement, sued for judicial review, declaratory and injunctive relief and damages.

All three parties filed cross-motions for summary judgment, and the Monroe Circuit Court entered summary judgment in favor of DeSpirito and stated a preliminary injunction against Richland would remain in effect. However, the trial court did not rule on DeSpirito’s request for damages or a permanent injunction.

The Indiana Court of Appeals reversed that decision on the grounds that local regulations did not require DeSpirito’s consent in the circumstances of the instant case.  However, the the appellate court first grappled with the question of whether Richland and the commission had appealed from a final judgment, considering a preliminary, rather than permanent, injunction remained in place.

The court ultimately decided to consider the case on the grounds that the Supreme Court “significantly relaxed procedural requirements in this regard” in the case of In re D.J. v. Indiana Department of Child Services, 68 N.E.3d 574 (Ind. 2017). The high court however, disagreed with the lower court’s reading of D.J. in a Tuesday per curiam opinion.

”Nothing in D.J. eliminated or relaxed the requirements for appellate jurisdiction,” the court wrote. “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 on the chronological case summary… 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.”

Unlike in D.J., the record in the instant case shows no final judgment, the high court said. Rather, the order the trial court entered did not direct entry of judgment on less than all of the issues, claims or parties, or determine there was not just reason for delay, as is required for an order to be considered a final judgment.

Thus, rather than ruling on DeSpirito’s appeal, the justices stayed its consideration and instead remanded the case for the trial court to decide within 90 days whether to expressly determine in writing there is no just reason for delay and to direct entry of judgment under Trial Rules 54(B) or 56(C). Richland and the board can then file a supplemental appendix that includes copies of the updated CCS and any new orders entered by the court.

“We caution, 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,” the court wrote.

Finally, the justices, who all concurred, wrote the trial court does not have to wait for certification of the opinion before exercising its jurisdiction on remand. They also noted no petitions for rehearing can be filed given the interlocutory nature of the remand.

ADVERTISEMENT

Recent Articles by Olivia Covington