City of Hammond v. Board of Zoning Appeals
Citation | 152 Ind.App. 480,284 N.E.2d 119 |
Decision Date | 22 June 1972 |
Docket Number | No. 1071A215,1071A215 |
Parties | CITY OF HAMMOND, Appellant (Plaintiff Below), v. BOARD OF ZONING APPEALS et al., Appellees (Defendants Below). |
Court | Indiana Appellate Court |
John J. McDonagh, Kiernan, McDonagh & Reppa, Hammond, for appellant.
Peters, McHie, Enslen & Moran, Lowell E. Enslen, Herbert E. Boase, Hammond, for appellees.
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:
(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:
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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...motion to dismiss pursuant to T.R. 12(B)(1), with prejudice. Although not an adjudication on the merits or res judicata, City of Hammond at 486, 284 N.E.2d at 123 (citing Cooper at 237, 276 N.E.2d at 536), a dismissal under T.R. 12(B)(1) voids the entire action, In re Chapman (1984), Ind.Ap......
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