Butler Toyota, Inc. v. Metropolitan Bd. of Zoning Appeals, Div. I.

• Decision Date: 23 February 1987
• Docket Number: No. 49S04-8702-CV-230,49S04-8702-CV-230
• Citation: 504 N.E.2d 271
• Parties: BUTLER TOYOTA, INC., and Jonathan's Keepe by Charles Laughner, jointly and severally, adjacent land owners, and for all others similarly situated, Appellants, v. The METROPOLITAN BOARD OF ZONING APPEALS, DIVISION I, Consisting of: Thomas Hunter, Chairman, Michael Fox, Member, Rev. Charles Montgomery, Member, Randall Jehs, Member, Joanna Walter, Member, Dellen Realty, Inc., Appellees.
• Court: Indiana Supreme Court

Page 271

504 N.E.2d 271

BUTLER TOYOTA, INC., and Jonathan's Keepe by Charles Laughner, jointly and severally, adjacent land owners, and for all others similarly situated, Appellants, v. The METROPOLITAN BOARD OF ZONING APPEALS, DIVISION I Consisting of: Thomas Hunter, Chairman, Michael Fox Member, Rev. Charles Montgomery, Member, Randall Jehs Member, Joanna Walter, Member, Dellen Realty, Inc., Appellees.

No. 49S04-8702-CV-230.

Supreme Court of Indiana.

Feb. 23, 1987.

Ted B. Lewis, Jennifer L. Graham, Lewis Kappes Fuller & Eads, Indianapolis, for appellants.

Stephen D. Mears, Mears Crawford Kennedy & Eichholtz, Indianapolis, for appellees.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. Petition is brought by Plaintiffs-Appellants Butler Toyota, Inc., and Jonathan's Keepe, by Charles Laughner, jointly and severally, adjacent land owners, and for all others similarly situated. The fact situation from which this cause arose is brief and not in dispute. Dellen Realty, Inc., applied to the Board of Zoning Appeals for a variance and this request was denied by the Board. Dellen was then allowed by the Board to re-docket the same variance request within one year of the adverse decision by the Board. Appellants Butler, et al., then petitioned for a Writ of Certiorari to the Circuit Court based on the alleged improper re-docketing of the variance by the Board of Zoning Appeals. Butler alleged this re-docketing was done in violation of a Board rule. Dellen filed a motion to dismiss the petition for certiorari, based on defective service of the notice of the filing of the petition. On January 24, 1985, the Circuit Court granted Dellen's Motion to Dismiss. Butler's Petition for Writ of Certiorari was dismissed because the Circuit Court found there was defective service when Butler served the notice on Dellen's counsel of record in the zoning proceeding rather than upon an executive officer or a resident agent designated to receive service for the corporation. The resolution of the propriety of the service on Dellen's counsel here turns on whether the Petition for Writ of Certiorari to the Circuit Court was a new or an original action as opposed to being a continuing step involving the same parties before the Board. The Court of Appeals agreed with the Circuit Court that the Writ of Certiorari was an original action that required service on the parties individually rather than on their counsel. Based on this reasoning the Court of Appeals found that the failure to personally serve notice on Dellen deprived the Circuit Court of jurisdiction and the writ was properly dismissed. We disagree with this reasoning and accordingly grant Appellant's petition to transfer, vacate the opinion of the Court of Appeals, and reverse the Circuit Court.

The Court of Appeals relied on Kupfer, et al. v. Board of Zoning Appeals (1959), 130 Ind.App. 55, 162 N.E.2d 110 to determine that a petition for writ of certiorari to review an administrative order is an original lawsuit. In his dissent, Judge Staton pointed out that Kupfer, supra, was handed down by the appellate court prior to the adoption of this Court's rules of procedure and should not be recognized as authority in situations such as this case presents. Judge Staton states:

"Kupfer v. Board of Zoning Appeals of Indianapolis (1959), 130 Ind.App. 55, 162 N.E.2d 110 was handed down by this Court eleven years before the present Indiana Rules of Procedure were adopted in 1970. The decision in Kupfer turns on a very narrow and strict statutory procedural distinction which has little or nothing to recommend it today. Kupfer has many faults in its rationale which underscores why it has been impliedly overruled by the adoption of the Indiana Rules of Procedure in 1970. First, Kupfer held that it did not have jurisdiction. A special appearance had been entered by the Board of Zoning Appeals so that it could file its motion to dismiss. Special appearances were used prior to 1970 to contest matters such as jurisdiction and to delay any action on the merits. Under the present Indiana Rules of Procedure, special appearances have been eliminated. Trial Rule 4 (A) provides:

'Jurisdiction Over Parties or Persons--In General. The Court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under other law.' "

Butler Toyota, Inc. et al. v. Metropolitan Board of Zoning Appeals et al. (1986), Ind.App. 493 N.E.2d 169, 171. The statutory procedures followed by Butler here, provide in Ind.Code Sec. 36-7-4-1003 that "Each decision of the Board of Zoning Appeals is subject to review by certiorari." Ind.Code Sec. 36-7-4-1003(a) (Burns 1981). Further, Ind.Code Sec. 36-7-4-1009 (Burns 1981) provides:

"Determination by court-Supplemental...