Chapo v. Jefferson County Plan Commission, 012221 INCA, 20A-CT-1197

Docket Nº:20A-CT-1197
Opinion Judge:VAIDIK, JUDGE.
Party Name:Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC, Appellants-Defendants, v. Jefferson County Plan Commission, Appellee-Plaintiff
Attorney:ATTORNEYS FOR APPELLANT Charles E. McFarland New Castle, Kentucky John R. Vissing Jeffersonville, Indiana ATTORNEY FOR APPELLEE R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
Judge Panel:Bailey, J., and Weissmann, J., concur.
Case Date:January 22, 2021
Court:Court of Appeals of Indiana

Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC, Appellants-Defendants,

v.

Jefferson County Plan Commission, Appellee-Plaintiff

No. 20A-CT-1197

Court of Appeals of Indiana

January 22, 2021

Appeal from the Jefferson Circuit Court The Honorable Sally A. McLaughlin, Special Judge Trial Court Cause No. 39C01-1605-CT-380

ATTORNEYS FOR APPELLANT Charles E. McFarland New Castle, Kentucky John R. Vissing Jeffersonville, Indiana

ATTORNEY FOR APPELLEE R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana

VAIDIK, JUDGE.

Case Summary

[¶1] In 2016, the Jefferson County Planning Commission ("JCPC") sued Joseph and Sherry Chapo and Deputy Bigshot, LLC (hereinafter "the Chapos"), alleging they were violating a zoning ordinance. The trial court granted a preliminary injunction against the Chapos and later found them in contempt for violating the preliminary injunction. Thereafter, the Chapos discovered the JCPC members had not taken an oath before assuming office and moved for relief from judgment based on Indiana Code section 5-4-1-1, which requires "officers" to take an oath to support the United States and Indiana Constitutions before entering office. The Chapos asserted the JCPC members were officers required by Section 5-4-1-1 to take an oath and their failure to do so made the office vacant, which in turn meant the JCPC lacked standing to sue, the preliminary injunction and contempt orders were void, and the case should be dismissed. The trial court denied the motion, and the Chapos appeal.

[¶2] We affirm, concluding while the JCPC members are officers required to take an oath under Section 5-4-1-1, their failure to do so here did not invalidate the JCPC's actions because the members acted as de facto officers.

Facts and Procedural History

[¶3] In May 2016, the JCPC filed a complaint against the Chapos, alleging they were violating a zoning ordinance by maintaining a shooting range on their property. In January 2017, the trial court granted the JCPC's request for a preliminary injunction against the Chapos. Later that month, the Chapos filed an interlocutory appeal of the preliminary injunction. In October, while the appeal was still pending, the trial court found the Chapos in contempt for continuing to operate the shooting range despite the preliminary injunction. The trial-court proceedings were then stayed pending the outcome of the appeal. In May 2018, this Court affirmed the grant of the preliminary injunction, and in November the Indiana Supreme Court denied transfer. Proceedings began again in the trial court, with the Chapos moving for judgment on the pleadings in February 2019.

[¶4] In April, while that motion was still pending, the Chapos discovered the JCPC members had not taken and filed oaths of office. The Chapos then moved for relief from judgment under Indiana Trial Rule 60(B)(6), arguing the JCPC members' failure to take and file oaths violated Section 5-4-1-1 and made the offices vacant under Indiana Code section 5-4-1-1.2, which meant the JCPC lacked standing to file the original suit, the trial court's January and October 2017 orders are void, and the entire case should be dismissed.1 A hearing on all pending motions-including the motion for relief-was held in July 2019. In November, the trial court issued an order which, in part, denied the Chapos' motion for relief.

[¶5] The Chapos now appeal.

Discussion and Decision

[¶6] The Chapos argue the JCPC members' failure to take and file the required oath means the JCPC lacked standing to sue and therefore the trial court lacked authority to act, the January and October 2017 orders are void, and the case must be dismissed. Under Rule 60(B)(6), the trial court may relieve a party from a judgment if "the judgment is void[.]" A Rule 60(B) motion alleging a judgment is void requires no discretion by the trial court because the judgment is void or valid and, thus, our review is de novo. Koonce v. Finney, 68 N.E.3d 1086, 1090 (Ind.Ct.App. 2017), trans. denied.

[¶7] The Chapos first contend the oath required by Section 5-4-1-1 applies to members of the JCPC. We agree. Title 5 governs state and local administration, and Article 4 governs officers' bonds and oaths. The statute provides, in relevant part: (a) Except as provided in subsection (c)[2], every officer and every deputy, before entering on the officer's or deputy's official duties, shall take an oath to support the Constitution of the United States and the Constitution of the State of Indiana, and that the officer or deputy will faithfully discharge the duties of such office.

Ind. Code § 5-4-1-1(a) (emphasis added). No definition of the term "officer" is included in the statute. When the legislature has not defined a word, we give the word its common and ordinary meaning....

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