Brendanwood Neighborhood Ass'n, Inc. v. Common Council of City of Lebanon, No. 1--475A66

• Docket Nº: No. 1--475A66
• Citation: 338 N.E.2d 695, 167 Ind.App. 253
• Case Date: December 16, 1975

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338 N.E.2d 695 167 Ind.App. 253 The BRENDANWOOD NEIGHBORHOOD ASSOCIATION, INC., (Plaintiff below),
and
Dan Wheat and Carolyn K. Wheat, husband and wife, Appellants,
v.
The COMMON COUNCIL OF the CITY OF LEBANON, Indiana, et al.,
Appellees(Defendants below). No. 1--475A66. Court of Appeals of Indiana, First District. Dec. 16, 1975.
Rehearing Denied Jan. 19, 1976.

[167 Ind.App. 254] Hollingsworth Martin & Buchanan, Buchanan & Buchanan, Lebanon, for appellants.

James L. Goodwin, Lebanon, William F. LeMond, Indianapolis, Wendell B. Iddings, Lebanon, for appellees.

LYBROOK, Judge.

Plaintiff-appellant The Brendanwood Neighborhood Association (BNA) and appellants Dan and Carolyn Wheat, husband and wife, appeal from the dismissal of BNA's complaint and from the subsequent refusal of the trial court to permit amendment to the complaint naming the Wheats as parties plaintiff. The propriety of that refusal forms the primary issue on appeal.

The record reveals that on May 1, 1974, BNA filed a complaint in the Boone Circuit Court challenging the validity of an annexation ordinance and a resolution amending the ordinance. The complaint sought to abate a nuisance and declaratory judgment. Thereafter, defendants-appellees The Common Council of the City of Lebanon, Robert Hulse, Robert Walker, and Hulse and Walker d/b/a H&W Development Co., a general partnership, responded by filing

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motions to dismiss BNA's action. Defendants' motions were sustained on October 16, 1974.

On October 25, 1974, BNA and the Wheats jointly moved the court for leave to amend the complaint to add the Wheats as parties plaintiff. The motion was denied, and this appeal was initiated.

Preliminarily, we note that the grounds advanced by defendants in their motions to dismiss included (1) lack of subject matter jurisdiction and (2) failure to state a claim upon which relief could be granted. Since the order sustaining the motions to dismiss does not specify which of these grounds was the basis of dismissal, each must be considered.

[167 Ind.App. 255] Clearly, the Boone Circuit Court had subject matter jurisdiction herein. The question of subject matter jurisdiction concerns whether the court does or does not have jurisdiction of the general subject or the general class of cases to which the particular action belongs. See, McCoy v. Able (1891), 131 Ind. 417, 30 N.E. 528; State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 180 N.E. 596; Wabash Railroad Co. v. Public Service Commission (1953), 232 Ind. 277, 112 N.E.2d 292; Ind. Rules of Procedure, Trial Rule 12(B)(1). Herein, the subject matters of BNA's complaint were (1) suit to abate a nuisance and (2) suit for declaratory judgment. Both matters are clearly within the jurisdiction of the Boone Circuit Court. See, Article 7, Section 8 of the Constitution of Indiana, and IC 1971, 33--4--4--3 (Burns' Code Ed.).

Thus, it is apparent that the basis of the dismissal of plaintiff's complaint was failure to state a claim upon which relief could be granted pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6). In such cases, the complaint may be amended once, as a matter of right, within 10 days:

'When a motion to dismiss is sustained for failure to state a claim under subsection (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten (10) days after service of notice of the court's order sustaining...