City of New Haven v. Allen County Bd. of Zoning Appeals
| Citation | 694 N.E.2d 306 |
| Decision Date | 30 April 1998 |
| Docket Number | No. 02A03-9609-CV-347,02A03-9609-CV-347 |
| Parties | CITY OF NEW HAVEN, Indiana; Donald A. Gorr, Thomas L. Gratz, Robert G. Beineke, Cheryl L. Hitzemann and Joe A. Mitchell, Appellants-Petitioners, Intervening Plaintiffs and Remonstrator, v. ALLEN COUNTY BOARD OF ZONING APPEALS; Dennis Gordon, Allen County Zoning Administrator; and Chemical Waste Management of Indiana, L.L.C., Appellees-Respondents, Petitioner, Plaintiffs and Defendants. |
| Court | Court of Appeals of Indiana |
Appellants-petitioners, intervening plaintiffs and remonstrator City of New Haven, Indiana; Donald A. Gorr, Thomas L. Gratz, Robert G. Beineke, Cheryl L. Hitzemann and Joe A. Mitchell (collectively referred to as "City") bring this consolidated appeal from the entry and certification of an agreed judgment entered into by appellees-respondents, petitioner, plaintiffs and defendants Allen County Board of Zoning Appeals (BZA); Dennis Gordon, Allen County Zoning Administrator (Zoning Administrator); and Chemical Waste Management of Indiana, L.L.C. (CWMI) concerning the operation and existence of a landfill, owned and operated by CWMI and located in an unincorporated area of Allen County, Indiana, and from the trial court's dismissal of City's petition for writ of certiorari challenging the actions of the BZA in entering into the judgment. A simplified version of the complex procedural background was set forth in City of New Haven v. Chemical Waste, 685 N.E.2d 97 (Ind.Ct.App.1997), trans. dismissed:
CP-308
The parties' relevant involvement with one another began on February 23, 1993, when the City filed its 'Complaint to Enforce Zoning Ordinance and for Declaratory Relief' naming the Allen County Board of Zoning Appeals (the 'BZA') and CWMI as defendants. The City alleged that CWMI was operating its landfill facility in violation of the Allen County Zoning Ordinance and sought a court order for CWMI to cease operations. During the pendency of the City's zoning enforcement proceedings ('CP-308') [Allen Superior Court Cause No. 02D01-9302-CP-308], and in response to the trial court's initial orders in CP-308, the Allen County Zoning Administrator served several 'stop work orders' on CWMI, after which time CWMI moved to join the Zoning Administrator as a party to the City's zoning enforcement case. In addition to issuing several stop work orders, the Zoning Administrator filed its counterclaim and an application for injunctive relief against CWMI. All parties moved for summary judgment in CP-308. The trial court issued its findings, conclusions, and order granting in part and denying in part CWMI's motion for summary judgment. The relevant portion of the trial court's order stayed all further proceedings 'pending CWMI's exhaustion of administrative remedies before any administrative agencies having primary jurisdiction over CWMI's land use.'
Accordingly, CWMI initiated an appeal to the BZA challenging, among other things, the Zoning Administrator's stop work orders. During the pendency of the BZA appeal, the Zoning Administrator issued additional stop work orders, as well as two notices of violation. On April 12 and 24, 1995, the BZA heard CWMI's appeals of the Zoning Administrator's stop work orders and notices of violation. The City appeared at the BZA hearings and urged the BZA to affirm all of the Zoning Administrator's orders. The BZA issued its decisions on May 10, 1995, affirming some of the Zoning Administrator's orders and reversing others.
On June 1, 1995, CWMI filed a petition for writ of certiorari in the trial court challenging those BZA determinations which were adverse to CWMI ('CP-764') [Allen Circuit Court Cause No. 02C01-9506-CP-764]. The City filed its appearance in the certiorari case as a remonstrator. On February 6, 1996, the trial court issued numerous orders which affirmed in part and reversed in part the findings of the BZA. The trial court certified its decision as a final appealable order pursuant to Trial Rule 54(B). Thereafter, the BZA, the Zoning Administrator, and the City initiated an appeal of CP-764.
During the pendency of the CP-764 certiorari case before the trial court, the BZA filed a verified complaint for injunctive relief, damages, and attorney fees, seeking to enforce those orders of the Zoning Administrator which the BZA had affirmed and which were adverse to CWMI ('CP-642') [Allen Circuit Court Cause No. 02C01-9506-CP-642]. The BZA also sought penalties against CWMI under the Allen County Zoning Ordinance. The City filed a petition to intervene as a plaintiff in the BZA's enforcement action. The trial court granted the City's petition and joined the City as a permissive intervening party in CP-642.
The parties moved for summary judgment in CP-642. On February 6, 1996, at the same time the trial court issued its ruling in CP-764, the trial court [Paul R. Cherry, Special Judge] also issued its ruling in CP-642, granting in part and denying in part CWMI's motion for summary judgment. The BZA, the Zoning Administrator, and the City filed a joint praecipe for appeal of CP-642[ 1].
On July 19, 1996, the BZA, the Zoning Administrator, and CWMI reached a settlement agreement and subsequently filed motions in CP-308, CP-764 and CP-642 requesting the trial court to enter an agreed judgment in each case. The trial court entered an agreed judgment in each case dismissing all claims with prejudice. The City was not a party to the agreed judgment.
On August 19, 1996, City filed a petition for writ of certiorari in the Allen Circuit Court, Judge Thomas L. Ryan, Cause No. 02C01-9608-CP-881 (CP-881), challenging the agreed judgment. Specifically, City alleged that the agreement was, inter alia, corrupt, unlawful, and an ultra vires act by the BZA. On September 5, 1996, the BZA, Zoning Administrator, and CWMI filed a motion before Judge Cherry to consolidate City's certiorari proceeding with the BZA's enforcement action. The BZA and CWMI then filed a motion to dismiss City's certiorari proceeding. On September 18, 1996, City filed a motion for change of judge from Judge Ryan pursuant to Ind.Trial Rule 76. Thereafter, Judge Cherry granted the motion to consolidate the BZA's enforcement action with City's certiorari proceeding.
On September 23, 1996, the trial court dismissed City's certiorari proceeding finding that City lacked standing as an "aggrieved party" under IND.CODE § 36-7-4-1003(a) (1997 Supp.). Additionally, the trial court directed the clerk to enter the agreed judgment in the chronological case summary and judgment of the court.
City now brings this consolidated appeal from Lower Court Cause Nos. CP-642, CP-764, CP-308, and CP-881 challenging the entry of the agreed judgment and the dismissal of City's petition for a writ of certiorari.
The issues raised by City can be consolidated into two broad categories for review:
(1) whether the trial court erred in entering the agreed judgment; and
(2) whether the trial court erred in dismissing City's petition for a writ of certiorari.
City first challenges the entry and certification of the agreed judgment. Absent a claim of fraud or lack of consent, a trial court must approve an agreed judgment. State v. Huebner, 230 Ind. 461, 467, 104 N.E.2d 385, 387-388 (1952); State ex rel. Prosser v. Ind. Waste Sys., 603 N.E.2d 181, 186 (Ind.Ct.App.1992). The trial judge has only the ministerial duty of approving the agreed judgment and entering it in the record. Mercantile Nat. Bank v. Teamsters Union, 668 N.E.2d 1269, 1271 (Ind.Ct.App.1996). However, such a decree does not represent the judgment of the court. Id. It is merely an agreement between the parties, consented to by the court. Id.
City contends that the trial court was without jurisdiction to certify the agreed judgment under Ind.Trial Rule 54(B) after City filed the record of proceeding in its interlocutory appeal of the trial court's orders in Appellate Cause No. 02A03-9606-CV-203. An appeal of a final judgment transfers general jurisdiction of the case to this Court, thereby suspending any further action by the trial court. Ind.Appellate Rule 3(A); Bradley v. State, 649 N.E.2d 100, 106 (Ind.1995). However, there are situations in which a trial court may retain jurisdiction and act notwithstanding a pending appeal. Id. Specifically, a trial court retains jurisdiction to perform such ministerial tasks as reassessing costs, correcting the record, or enforcing a judgment. Id.
When, as in the instant case, the parties plaintiffs and defendants stipulate the findings of fact and the conclusions of law and hand these stipulations to the judge in open court, ... the court is not called upon to perform a judicial act. The writing is in fact a consent finding and judgment, and the duty of the court is ministerial--to have the writing entered as agreed upon.
In the absence of fraud, parties who are competent to contract and not standing in confidential relations to each other may agree to the rendition of a judgment or decree respecting any right which may be the subject of litigation. When such a decree is...
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