State ex rel. American Reclamation & Refining Co. v. Klatte, 127OS311

• Decision Date: 22 June 1971
• Docket Number: No. 127OS311,127OS311
• Citation: 256 Ind. 566,270 N.E.2d 872
• Parties: STATE of Indiana ex rel. AMERICAN RECLAMATION AND REFINING CO., Inc., (An Indiana Corporation), Appellant, v. Albert KLATTE, as Enforcement Officer and on Behalf of the Marion County Health and Hospital Corporation, et al., Appellees.
• Court: Indiana Supreme Court

Page 872

270 N.E.2d 872

256 Ind. 566

STATE of Indiana ex rel. AMERICAN RECLAMATION AND REFINING

CO., Inc., (An Indiana Corporation), Appellant, v. Albert KLATTE, as Enforcement Officer and on Behalf of the

Marion County Health and Hospital Corporation, et

al., Appellees.

No. 127OS311.

Supreme Court of Indiana.

June 22, 1971.

Philip R. Melangton, Jr., Raikos, Melangton, Dougherty & Christ, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Sam Stoehr, Deputy Atty. Gen., Harold H. Kohlmeyer, Jr., Arthur H. Northrup, Richard L. Milan, Indianapolis, for appellees.

HUNTER, Judge.

This appeal comes to us from the Shelby County Superior Court and challenges the legal propriety of that court's actions in issuing a temporary injunction, enjoining appellant from the operation of a land-fill at 1350 Troy Avenue, Indianapolis, Indiana.

The litigation preceding the issuance of the temporary injunction may be briefly summarized as follows: it appears that appellant, American Reclamation and Refining Co., sought the necessary approval from the appropriate city administrative agencies for the operation of a sanitary landfill to be located at 1350 Troy Avenue. Approval of a zoning variance and the issuance of a license by the City Controller upon approval by the Board of Public Works was required before the landfill could legally be operated.

Apparently upon the grounds that the city officials were improperly withholding approval of the landfill operation by virtue of 'additional,-extra-legal requirements' being imposed, appellant, as plaintiff, sought to have such officials compelled to extend the requisite legal approval by court action in the form of a complaint for writ of mandate. In response, appellees filed an answer and cross-complaint for injunction. A temporary injunction was duly issued by The Honorable Judge Goddard, special judge of the Shelby County Superior Court, and this interlocutory appeal follows.

Before reaching the merits on the question of injunctive relief, we must first decide whether appellees' brief is properly before us for consideration. This being an interlocutory appeal from the granting of a temporary injunction, it is clear that appellees had ten (10) days from the filing of appellant's brief in which to file appellees' brief. Rule AP. 8.1(B). Nevertheless, appellees did not file a brief until some thirty (30) days after the filing of a brief by appellant. Several motions and countermotions have been filed respecting the matter and we feel compelled to make comment.

In its original complaint for writ of mandate, appellant named several parties as defendants, specifically: Albert Klatte as Enforcement Officer and on behalf of the Marion County Health and Hospital Corporation; Blucher Poole as Technical Secretary and on behalf of the Indiana State Board of Health; Indiana State Board of Health and its Stream Pollution Control Board; John W. Sweezy, Director of the Board of Public Works, Wendell D. Vandiver, Paul E. Buckley, William H. Hardy, and Gordon G. Gilmer as members of the Department of Public Works; Richard P. Wetter as Deputy Director of the Department of Public Works; and Earl Franke, Zoning Administrator on behalf of the Metropolitan Board of Zoning Appeals, Division One, and on behalf of the Metropolitan Development Commission. Several attorneys entered appearances separately and on behalf of individual defendants, including attorneys from the Indianapolis City Legal Department. The cross-complaint filed by 'defendants', however, the disposition of which is the subject of this appeal, was signed only by Arthur H. Northrup on behalf of the City Legal Department.

In a petition filed by Northrup, on behalf of the City Legal Department, it was requested that the brief to be filed be considered timely since the notice given by appellant and the service of its brief were not adequate in that such notice and service were not made on Northrup personally; it is contended since Northrup was essentially handling the litigation that notice and service should have been directed to him. We cannot agree. Included with the papers accompanying this appeal is an 'Acknowledgement of Service of Appellant's Brief' dated March 22, 1971, signed by an assistant attorney in the City Legal Department. March 22nd was the same day appellant filed its brief in this court and we feel constrained to hold that notice and service to the City Legal Department was, in effect, notice and service to Northrup under Rule AP. 12(B).

Also before us are petitions on behalf of two parties, Albert Klatte and Blucher Poole, who seek to adopt 'Appellees Brief' as their own and to have it considered timely filed. The basis for these requests is that neither party nor their attorney of record was given notice of the filing of appellant's brief nor served with a copy thereof. For reasons to follow, nevertheless, we have concluded that these petitions must be denied.

As we have noted, the cross-complaint for temporary injunction was filed by Northrup, an attorney for the Indianapolis City Legal Department. This being the case, there is reason to conclude that the legal department was either filing the cross-complaint on behalf of all named defendants pursuant to an agreement not evidenced by the record or that the legal department filed its cross-complaint only on behalf of those parties which it normally represents pursuant to its statutory authority. In either case, notice of filing and service of appellant's brief would be sufficient if made on the legal department. Parties to an appeal are entitled to service of all papers filed pursuant to be the prosecution of an appeal, and where represented by counsel, service may be made upon such counsel. Rule AP. 12(B). Parties to this appeal are determined by reference to the cross-complaint for temporary injunction, since it is the disposition of that claim which occasions this appeal. Rule AP 2(B). ¹ Therefore, in determining what attorneys are entitled to service under the above rule, it would seem manifestly clear that an opposing party would be warranted in looking at the complaint (here a cross-complaint) or other trial pleading filed to determine the scope of his service duties on appeal under Rule AP. 12(B),--since under Rule TR. 11 a pleading must be signed by an attorney of record where such party is, in fact, represented by counsel. ² It necessarily follows that appellant would have been justified in assuming that the City Legal Department was acting as counsel on behalf of all parties defendant on their cross-complaint, Deputy Attorney Northrup's signature being the only signature appearing, in which case service of an appeal brief on such department would be sufficient under Rule AP. 12(B),--or that only those parties defendant which are, by virtue of statutory enactment, customarily represented by the legal department were intended to be party cross-complainants,--in which was service on such department would again be sufficient under Rule AP. 12(B).

Thus we are forced to hold that appellees' brief can in no regard be deemed timely filed. In such a case, we feel the consideration of appellees' brief is entirely discretionary with the court, it being 'before us' by virtue of Rule AP. 8.1(C). Where, as here, the matter under review is of great public importance, justice will best be served if we are to have the advantage of argument from all parties involved. Consequently and in pursuance of our discretionary power in this regard, we shall consider appellees' brief on the merits.

Briefly summarized, appellant would make the following arguments:

1. Jurisdiction of the trial court to issue an injunction is limited to the protection of civil and property rights.

2. Injunctive relief is improper to prevent the violation of a municipal ordinance where such ordinance provides a penalty for its violation.

3. The trial court was in error in its adoption of appellees' tendered findings of fact and conclusions of law.

4. The granting of a temporary injunction under a void restraining order denied appellant equal protection of the laws.

5. The court erred in failing to modify or dissolve the temporary injunction issued.

Due to our conclusion in this case, it will be unnecessary to discuss in detail each point raised by appellant.

As pointed out by appellees, a temporary injunction may be issued to maintain the status quo, pending a determination of the case on the merits. Green v. Board of Commissioners of County of Scott (1969), Ind., 242 N.E.2d 844; Public Service Commission v. New York Central Rail Road Company (1966), 247 Ind. 411, 216 N.E.2d 716; Indiana Annual Conference Corporation v. Lemon (1956), 235 Ind. 163, 131 N.E.2d 780; Public Service Commission v. Indianapolis Rys. (1947), 225 Ind. 30, 72 N.E.2d 434; Tuf-Tread Corporation v. Kilborn (1930), 202 Ind. 154, 172 N.E. 353; Risch v. Burch (1911), 175 Ind. 621, 95 N.E. 123; City of Laporte v. Scott (1906), 166 Ind. 78, 76 N.E. 878; Home Electric Light and Power Company v. Globe Tissue Paper Company (1897), 146 Ind. 673, 45 N.E. 1108; Spicer v. Hoop (1875), 51 Ind. 365. As has been duly noted in the cases above cited, it is not necessary that the party seeking relief make out such a case as would entitle him to relief at the final hearing but only that there be shown a set of facts sufficient to justify further investigation by a court of equity. As was said in Tuf-Tread Corp. v. Kilborn, supra:

"In interfering by interlocutory injunction, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has been made out for the preservation of the property...