Lake County Trust No. 3190 v. Highland Plan Com'n, 45A03-9604-CV-108

Decision Date31 December 1996
Docket NumberNo. 45A03-9604-CV-108,45A03-9604-CV-108
Citation674 N.E.2d 626
PartiesLAKE COUNTY TRUST NO. 3190, Jay Leslie Zandstra, and Charles Zandstra, Appellants-Plaintiffs, v. HIGHLAND PLAN COMMISSION, Dennis Meyers and/or Meyers Commercial Industrial Development Corporation, et al., Appellees-Defendants.
CourtIndiana Appellate Court
OPINION

HOFFMAN, Judge.

Appellants-plaintiffs, Lake County Trust No. 3190, Jay Leslie Zandstra, and Charles Zandstra (collectively Zandstra), appeal the trial court's judgment dismissing their action challenging appellee-defendant, Highland Plan Commission's (HPC), grant of primary plat approval in favor of appellee-defendant Dennis Meyers. The facts relevant to review are recited below.

In June 1993, Zandstra petitioned the trial court for a Writ of Certiorari challenging HPC's grant of preliminary approval allowing Meyers to subdivide property he owned or owned by Meyers Industrial Development Corp. HPC and Meyers were ordered to respond. In July 1993, Meyers and HPC filed motions requesting denial of the writ and a motion to dismiss.

On July 22, 1993, Meyers requested a hearing. After rescheduling due to conflicts, the hearing was held in April 1994. The court denied Meyers and HPC's motions.

On September 20, 1995, the trial court, on its own motion, set the cause for a hearing pursuant to Ind. Trial Rule 41(E) requiring Zandstra to appear to demonstrate why the cause should not be dismissed for failure to prosecute the action. The court's "Special Calendar for Dismissals Under Trial Rule 41(E)" reflects that the clerk was ordered to give notice to all attorneys on the calendar. This case with Zandstra's attorney was listed. The order required notice and set the hearing for November 8,1995, at 8:30 A.M.

On October 17, 1995, Meyers filed his motion for T.R. 41(E) dismissal for failure to prosecute. In his accompanying memorandum, Meyers alleged that Zandstra did not have a meritorious claim. Additionally, Meyers complained that he had suffered prejudice from the delay. On November 1, 1995, the Chronological Case Summary (CCS) noted that Zandstra filed an extension of time to respond to Meyers' motion to dismiss.

On November 13, 1995, Zandstra filed a response to the motion to dismiss and request for issuance of a writ of certiorari. Zandstra's memorandum alleged that the onus was on HPC "to set forth all facts and data as may be pertinent and to present materials showing the grounds of [HPC's] decision to grant primary plat approval to" Meyers.

On December 6, 1995, the trial court entered its order of dismissal pursuant to T.R. 41(E). The order noted that the cause had been set for a hearing on dismissal by the court. The court recognized that Zandstra had filed a request for an extension of time to respond to Meyers' motion; however, the court found that Zandstra's failure to appear at the November 8, 1995 hearing required dismissal because "Petitioners have not shown cause why this matter has not been prosecuted diligently or why it should continue to pend on the Court's docket."

On December 18, 1995, the CCS entry shows that Zandstra's counsel filed a verified motion to reconsider. In the motion, counsel set out the chronology of events. Counsel acknowledged that the request for extension of time was returned by the court without a ruling granting or denying the extension. Counsel contended that relief should be granted because "petitioners in fact never received a copy of the Court's Order to Show Cause or notice of hearing." Also, counsel alleged that "petitioners' ability to prosecute their case diligently was further hindered by the Court's failure either to grant or deny their Petition for Extension of Time."

The motion to reconsider was deemed denied by operation of the trial rules. This appeal ensued.

As restated, Zandstra presents one consolidated issue for review: whether the trial court abused its discretion in dismissing the cause pursuant to T.R. 41(E) and whether the order is void due to the alleged lack of notice.

Initially, it is noteworthy that a motion to reinstate a cause after a dismissal rendered pursuant to T.R. 41(E) must be made under T.R. 60(B).1 Ind. Trial Rule 41(F). In pertinent part, T.R. 60(B) provides:

Mistake--Excusable Neglect--Newly Discovered Evidence--Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;

* * * * * *

(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).

The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4).

A motion pursuant to the rule is addressed to the equitable discretion of the court. Our scope of review for the grant or denial of a T.R. 60(B) motion is limited to whether the trial court abused its discretion. An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Summit Account & Computer v. Hogge, 608 N.E.2d 1003, 1005 (Ind.Ct.App.1993).

Review of the cases regarding T.R. 60(B) reveals an untidy area as observed in Graham v. Schreifer, 467 N.E.2d 800, 807 (Ind.Ct.App.1984):

The abuse of discretion standard of review of trial court judgments is a broad one, and when we considered the decisions of numerous state and federal courts regarding T.R. 60(B) motions, we discovered absolutely no consistency, no pattern to what did or did not constitute an abuse of discretion. Frankly, if the trial court here had denied the motion, we would have been hard-pressed to determine that action would have been an abuse of discretion. (However, the due process considerations herein would probably have required a reversal.) The equities to consider and balance in any given case are usually of such nonrepetitive nature that an overall schemata of all the T.R. 60(B) cases would more likely remind one of the shifting patterns of moire rather than of a steadfast progression between two points labelled 'abuse of discretion' and 'no abuse of discretion.' Within this context, we have endeavored to reach a proper balance between the factual circumstances and the freedom of (and appellate respect for) the decision of the trial court, which basically is what the abuse of discretion standard is all about. [Emphasis in original.]

Id. at 807, n. 4.

Decisions regarding relief from a judgment or dismissal when notice of the action is lacking have been made under T.R. 60(B)(1) and T.R. 60(B)(8). See Moore v. Terre Haute First Nat. Bank, 582 N.E.2d 474, 477-478 (Ind.Ct.App.1991) (T.R. 41(E) dismissal served upon counsel who had previously withdrawn required T.R. 60(B)(1) relief, further dismissal without notice to party was void ab initio ); Westlake v. Benedict, 469 N.E.2d 27, 29 (Ind.Ct.App.1984) (affirming grant of T.R. 60(B)(1) motion for relief filed nine months after dismissal where counsel not notified of pending dismissal and ongoing negotiations taking...

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