City of New Haven v. Chemical Waste Management of Indiana, L.L.C.

• Decision Date: 05 September 1997
• Docket Number: No. 02A03-9606-CV-203,02A03-9606-CV-203
• Citation: 685 N.E.2d 97
• Parties: CITY OF NEW HAVEN, Indiana, Appellant, v. CHEMICAL WASTE MANAGEMENT OF INDIANA, L.L.C., Chemical Waste Management, Inc., and WMX Technologies, Appellees.
• Court: Indiana Appellate Court

Page 97

685 N.E.2d 97

CITY OF NEW HAVEN, Indiana, Appellant, v. CHEMICAL WASTE MANAGEMENT OF INDIANA, L.L.C., Chemical Waste Management, Inc., and WMX Technologies, Appellees.

No. 02A03-9606-CV-203.

Court of Appeals of Indiana.

Sept. 5, 1997.

James P. Fenton, Alan VerPlanck, Cathleen M. Shrader, Barrett & McNagny, Fort Wayne, for Appellant.

George M. Plews, Timothy J. Paris, Plews Shadley Racher & Braun, Indianapolis, for Appellees.

OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

This case comes to this court on a motion to dismiss an appeal brought by the City of New Haven, Indiana (the "City"). Chemical Waste Management of Indiana, L.L.C., Chemical Waste Management, Inc., Waste Management, Inc. and WMX Technologies, Inc. (collectively "CWMI") filed a motion to dismiss the City's consolidated appeal of two trial court judgments on the ground that a settlement agreement reached between CWMI (appellee/defendant below), the Allen County Zoning Administrator, and the Allen County Board of Zoning Appeals (plaintiffs below), has rendered moot the present consolidated appeal brought by the City (appellant/intervening plaintiff and remonstrator below). We disagree with CWMI and deny its motion to dismiss the City's appeal.

PROCEDURAL BACKGROUND

A somewhat simplified version of the complex procedural background follows.

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"), 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."

CP-764

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"). 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.

CP-642

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"). 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 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 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.

and joined the City as a permissive intervening party in CP-642.

Agreed Judgment

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.

Present Appeal

As a result of the agreement reached between those parties, the BZA and the Zoning Administrator dismissed their appeal of CP-642 and CP-764. The City, now the sole appellant, brings a consolidated appeal of the trial court's rulings in CP-642 and CP-764. ¹

ISSUES

In its motion to dismiss the City's consolidated appeal of CP-642 and CP-764, CWMI presents several issues for our review. Some of CWMI's asserted issues go to the merits of the City's appeal and, thus, are not proper for consideration on a motion to dismiss. We find two issues proper for our review at this juncture which we restate as:

1. Whether the City, as a permissive intervening party below, may maintain an appeal of a judgment when the original parties to the dispute have settled their claims and dismissed the case as between themselves.

2. Whether the City, as a remonstrator below, may maintain an appeal of a ruling on certiorari when the party who filed the petition for certiorari has settled its dispute with the BZA and the Zoning Administrator.

DISCUSSION AND DECISION

Issue One: Permissive Intervenor

As we have noted, CP-642 was a zoning enforcement action brought by the BZA. The City's involvement in CP-642 was as a permissive intervening plaintiff under Indiana Trial Rule 24(B)(2). ² In support of its motion to dismiss the City's appeal, CWMI contends that following the settlement and dismissal of the case between the original parties, the City, as a permissive intervenor, may not maintain an appeal to this court. Essentially, CWMI asks this court to question our jurisdiction to hear the present appeal.

Indiana law provides that an intervenor takes the case as he finds it and cannot change the issues or raise unrelated issues. Cromer v. Sefton, 471 N.E.2d 700, 705 (Ind.Ct.App.1984); see also Heritage House of Salem, Inc. v. Bailey, 652 N.E.2d 69, 74 (Ind.Ct.App.1995), trans. denied. Accordingly, one should not be granted permissive intervention if the effect of granting the motion would be to open up new areas of inquiry or raise unrelated issues. Heritage House of Salem, Inc., 652 N.E.2d at 69. Although one who has been granted permissive intervening status cannot later interject new areas of inquiry or raise unrelated issues the question remains as to what rights the intervening party has to continue to pursue issues raised by the original parties where those parties have decided to settle and/or dismiss the case as between themselves.

The parties do not cite, and we are unaware of, any Indiana decision addressing the rights a permissive intervenor may or may not have in the event of a settlement and/or dismissal of the case as between the original parties to the lawsuit. We note that Trial Rule 24 is similar to its federal counterpart and, thus, we will consider federal authority a useful guide in our opinion today. See Keith v. Mendus, 661 N.E.2d 26, 34 (Ind.Ct.App.1996), trans. denied; Bryant v. Lake County Trust Company, 166 Ind.App. 92, 334 N.E.2d 730, 735 (1975). However, we stress that we are not bound by the federal courts' interpretation or application of federal rules of procedure when applying this State's rules. Rickels v. Herr, 638 N.E.2d 1280, 1283 (Ind.Ct.App.1994). We are particularly cognizant of that notion here where we are not concerned merely with the application of one of our procedural rules, but where a party questions this court's appellate jurisdiction as it relates to that rule; an appellate jurisdiction which is dissimilar to that of the federal courts. With this in mind, we consider the issue at hand.

Generally, one who has been allowed to intervene in an action may appeal from subsequent orders in the action. 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1923 (1986). As noted by the Ninth Circuit Court of Appeals, approximately half of the circuits have addressed the rights of an intervenor after dismissal of the party who originated the case under Federal Rule of Civil Procedure 24, and all have reached the same conclusion. "The weight of authority in the United States Court[s] of Appeals supports the principle that an intervenor can continue to litigate after dismissal of the party who originated the action." Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir.1994) (quoting United States Steel Corp. v. E.P.A., 614 F.2d 843, 845 (3d Cir.1979)). ³ Most of the circuits that have reached that conclusion have set standards for determining under what circumstances an intervening party may continue to litigate after dismissal of the original party and have generally adopted, inter alia, the approach that an intervenor may continue provided that an independent basis for jurisdiction exists. See Benavidez, 34 F.3d at 830. ⁴

CWMI urges this court to adopt that same standard set by the federal...