City of Hammond v. Board of Zoning Appeals

Citation152 Ind.App. 480,284 N.E.2d 119
Decision Date22 June 1972
Docket NumberNo. 1071A215,1071A215
PartiesCITY OF HAMMOND, Appellant (Plaintiff Below), v. BOARD OF ZONING APPEALS et al., Appellees (Defendants Below).
CourtIndiana Appellate Court

John J. McDonagh, Kiernan, McDonagh & Reppa, Hammond, for appellant.

Peters, McHie, Enslen & Moran, Lowell E. Enslen, Herbert E. Boase, Hammond, for appellees.

STATON, Judge.

STATEMENT ON APPEAL: The Board of Zoning Appeals granted a variance to George Sarros to construct a Standard Oil Service Station on the southwest corner of Chicago and Columbia Avenues in the City of Hammond, Indiana. The City of Hammond filed a complaint in the Lake County Superior Court requesting inter alia that the trial court declare that the Board of Zoning Appeals had exceeded its authority under Ordinance 2928. The Board of Zoning Appeals filed its Motion to Dismiss for lack of jurisdiction which was sustained by the trial court. In its motion to correct errors, the City of Hammond alleged that the trial court erred in sustaining the Board of Zoning Appeals' Motion to Dismiss. We affirm the trial court's ruling upon the Motion to Dismiss in the following opinion:

STATEMENT OF FACTS: George Sarros requested and received a change of zoning from the Plan Commission which would permit him to construct a Standard Oil Service Station at the southwest corner of Chicago and Columbia Avenues in the City of Hammond, Indiana. The Hammond City Council voted to deny the change in zoning which had been granted by the Plan Commission. When George Sarros went to the Building Commissioner and demanded a building permit, the permit was denied. George Sarros appealed to the Board of Zoning Appeals and it granted a variance for the construction of the Standard Oil Service Station. This action of the Board of Zoning Appeals was taken after receiving from the City Attorney a letter dated March 6, 1970 which advised against the granting of said variance. On May 28, 1970, a petition for writ of certiorari was filed by Karen F. Freckleton. The City of Hammond was granted leave to intervene as a party plaintiff in that action. The petition for certiorari was defective and dismissed by the Court. No appeal was taken from this dismissal. Another action was filed by the City of Hammond on July 31, 1970, seeking relief from alleged illegal proceedings of the Board of Zoning Appeals when it granted a variance to George Sarros. In regard to this second action, the Board of Zoning Appeals filed its motion to dismiss and an alternative motion for summary judgment. The motion to dismiss was sustained on March 25, 1971. The City of Hammond filed its motion to reconsider on April 26, 1971 which was never ruled upon by the court since leave of court was granted to file an amended complaint on May 19, 1971. In response to the amended complaint, the Board of Zoning Appeals filed its motion to dismiss. The second motion to dismiss filed by the Board of Zoning Appeals was sustained on June 24, 1971, and the judgment entered by the court on March 25, 1971 was reinstated. The City of Hammond filed its motion to correct errors on June 28, 1971 which gives rise to the issues to be discussed in the paragraph below.

STATEMENT OF ISSUES: The City of Hammond's motion to correct errors brings into focus these contentions of error and issues which will be discussed under 'Statement of the Law on the Issues' under the numerical designations as set forth below:

I. Was the City's motion to correct errors filed within the sixty (60) days as provided by Rule TR. 59?

II. Did the City's complaint state a claim?

III. Was the granting of the Board's first motion to dismiss res judicata?

IV. Did the trial court have jurisdiction over the subject matter?

V. Was a 'justiciable issue' placed befor the trial court?

STATEMENT OF THE LAW ON THE ISSUES:

I. 'It is the contention of the Board that no motion to correct errors was filed by the City within 60 days after the entry of the judgment of March 25, 1971, as required by Trial Rule 59, Indiana Rules of Procedure.'

A recapitulation of the proceedings up to and including the City's motion to correct errors is necessary before considering in detail this contention of error.

                July 31, 1970      City files complaint
                August 18, 1970    Board files motion to dismiss
                December 23, 1970  Court denies motion to dismiss
                February 23, 1971  Board files motion to reconsider
                March 25, 1971     Court grants motion to dismiss
                April 26, 1971     City files motion to reconsider
                May 19, 1971       City files for leave to amend complaint
                May 28, 1971       Board files motion to strike
                                   Court sustains Board's motion and reinstates March 25, 1971 Order
                June 28, 1971      City files motion to correct errors
                

The Board is contending that the motion to correct errors filed on June 28, 1971 was not timely. The first motion to dismiss was granted on March 25, 1971. The Board further contends that this was final judgment and that the intermediary motions to reconsider and for leave to amend the complaint did not toll the effect of Rule TR. 59(C) of the Indiana Rules of Procedure IC 1971, 34--5--1--1, which provide:

'A motion to correct errors shall be filed not later than sixty (60) days after the entry of judgment.'

The Board's contention that the first motion to dismiss was a final judgment is correct. Their assumption that the subsequent filings did not toll the effects of Rule TR. 59(C) is not correct.

The court entered judgment March 25, 1971, on the Board's first motion to dismiss. A motion to reconsider was filed by the City on April 26, 1971. Rule TR. 53.2(B) then read as follows:

'No hearing shall be required upon . . . motions to reconsider orders or rulings upon a motion. Such a motion by any party . . . or such action to reconsider . . . shall not delay . . . or extend the time for any further required . . . action, motion or proceedings under these rules . . ..' (Our emphasis.)

A motion to reconsider cannot toll the time requirement of filing a motion to correct errors within sixty days after the entry of final judgment. 1

A motion for leave to amend its complaint pursuant to Rule TR. 15(A) was filed by the City on May 19, 1971. The judgment dismissing the first complaint was a final judgment and appealable. Richards v. Crown Point Community School Corp. (1971), Ind., 269 N.E.2d 5. It is not on the merits or res judicata. Cooper v. County Board of Review (1971), Ind.App., (28 Ind.Dec. 203) 276 N.E.2d 533. The circumstances in the present case exhibit to this Court a question of first impression: Can a party move for leave to amend a complaint after a Rule TR. 12(B)(1) motion has been granted and judgment entered?

We hold that a party to an action can amend a complaint by leave of court within sixty (60) days from the granting of a Rule TR. 12(B)(1) judgment. Rule TR. 15(A) is a proper vehicle to place before the court a party's claim on the merits where the question of jurisdiction has been raised and found to be lacking. Topping v. Fry (7th Cir. 1945), 147 F.2d 715.

In the present case, the trial court felt that 'justice required' a granting of leave to amend the complaint. The trial judge is in a much better position to determine this question. The trial court is given an opportunity to resolve the claim on the merits without an unnecessary appeal on only procedural grounds. Therefore, the granting of leave to file an amended complaint did toll the effects of Rule TR. 59(C).

II. Did the City's complaint state a claim? The Board complains at page 45 of its brief that:

'The City in its pleading has failed and refused to inform the trial court and the Appellate Court, despite many requests from the Board and opportunities to reply, what the City's claim is, the grounds upon which it rests and the relief sought. It should not be the duty of the court to search the plaintiff's Complaint to try to justify plaintiff's claim when plaintiff is unable or unwilling to do so.'

We share the above sentiments. Notice pleading has eliminated the burdensome pleading of detailed facts, but not the necessity of disclosing the theory of law upon which the claim is predicated. The City will not be penalized by what it has left out of its complaint, but it will be bound by what it has chosen to include. Cheathem v. City of Evansville (1972), Ind.App., 278 N.E.2d 602. A very careful study of the City's complaint discloses that the City is seeking a declaratory judgment. Rhetorical paragraph ten (10) and its prayer for relief contain the following language:

'That it is to the good order of the administration of the law of this City that the powers and duties as conferred by the Common Council to the defendant Board of Zoning Appeals be resolved and the extent of their authority be delineated.

'WHEREFORE, the plaintiffs herein respectfully pray that:

'(c) This Court declare and make its judgment that the Board of Zoning Appeals of the City of Hammond, Lake County, Indiana, has gone beyond the authority granted it by Hammond Ordinance No. 2928; . . .'

The City of Hammond is bound by such statements as those set out above in its complaint and it is further bound by the admission in its brief that it is not seeking certiorari or '. . . a suit to compel the Board of Zoning Appeals to perform some duty.' Therefore, we can only conclude that the City is seeking a declaratory judgment.

III. Was the granting of the Board's first motion to dismiss res judicata? We hold that it was not res judicata. Paragraphs 1, 2, 3, 4 and 6 of the Board's motion to dismiss can be summarized as asking the court to dismiss the City's complaint for the reason that the City's sole remedy was by certiorari pursuant to IC 1971, 18--7--5--87; Ind.Ann.Stat. § 53--783 (Burns 1964). The Board's motion to dismiss further concludes that the City has not properly perfected its remedy unde the statute. This is an attack for lack of jurisdiction...

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