Town of Ellettsville v. DeSpirito

• Decision Date: 12 December 2017
• Docket Number: No. 53S01–1709–PL–612,53S01–1709–PL–612
• Parties: TOWN OF ELLETTSVILLE, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants (Respondents below), v. Joseph V. DESPIRITO, Appellee (Petitioner below).
• Court: Indiana Supreme Court

87 N.E.3d 9

TOWN OF ELLETTSVILLE, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants (Respondents below),

v.Joseph V. DESPIRITO, Appellee (Petitioner below).

No. 53S01–1709–PL–612

Supreme Court of Indiana.

FILED December 12, 2017

Attorney for Appellant Town of Ellettsville, Indiana Plan Commission : Darla S. Brown, Sturgeon & Brown, P.C., Bloomington, Indiana

Attorneys for Appellant Richland Convenience Store Partners : LLC, Andrew P. Sheff, Sheff Law Office, Indianapolis, Indiana, Carina M. de la Torre, The de la Torre Law Office LLC, Indianapolis, Indiana

Attorneys for Appellee : Michael Rabinowitch, Maureen E. Ward, Wooden McLaughlin LLP, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 53A01–1611–PL–2559

Per Curiam.

Richland Convenience Store Partners, LLC asked the Town of Ellettsville's Plan Commission to amend a subdivision plat so Richland could move a utility easement on its property. The Commission approved Richland's request, over the objection of Richland's neighbor, Joseph V. DeSpirito, whose property the easement benefits. DeSpirito then sued for judicial review, declaratory relief and associated damages (attorney's fees and costs), and preliminary and permanent injunctive relief. Appellants' App. Vol. II at 17–24. An agreed preliminary injunction was entered barring Richland from taking any action in reliance on the Commission's decision, pending further court order. Richland and the Commission answered the complaint.

All parties sought summary judgment. An "Order on Judicial Review" ("Order") entered October 19, 2016, granted DeSpirito's motion for summary judgment and denied the others' motions. The Order concluded the Commission erred in approving relocation of the easement and ordered the case remanded to the Commission with instructions to dismiss Richland's request for plat amendment unless DeSpirito joins it. The Order stated the preliminary injunction remains in effect, but the Order was silent on DeSpirito's request for damages and a permanent injunction. Id. at 16.

Richland and the Commission (collectively, "Appellants") filed notices of appeal, purporting to appeal from a final judgment. The Court of Appeals rightly questioned whether a final judgment has been entered and noted the preliminary nature of the injunction entered. Town of Ellettsville v. DeSpirito, 78 N.E.3d 666, 672 n.3 (Ind. Ct. App. 2017), vacated. But it added, "[B]ecause our supreme court has significantly relaxed procedural requirements in this regard, see In re D.J. v. Ind. Dep't of Child Servs., 68 N.E.3d 574 (Ind. 2017) (addressing merits of premature appeal), we do not consider the issue further." Id. It went on to reverse the trial court and remand with instructions to enter summary judgment for the Appellants, reinstate the Commission's decision, and conduct further proceedings consistent with its opinion. Id. at 680.

Having granted transfer and heard oral argument, we address appellate jurisdiction differently. Nothing in D.J. eliminated or relaxed the requirements for appellate jurisdiction. It reaffirmed that the prerequisites for appellate jurisdiction are (1) entry of an appealable order by the trial court and (2) the trial court clerk's entry of the notice of completion of the clerk's record on the chronological case summary ("CCS"). 68 N.E.3d at 578. D.J. explained that in a child in need of services ("CHINS") case, the CHINS determination is not a final judgment and that finality does not occur until the court enters a dispositional order. Id. at 576. There, the trial court found the children to be CHINS, the parents then filed their separate notices of appeal, the court thereafter entered its dispositional order, and the clerk later filed the notice of completion of the clerk's record. Id. at 577. Appellate jurisdiction was secure in D.J. because the trial court entered its dispositional order—a final judgment—before the clerk entered the notice of completion of clerk's record on the CCS. Under Appellate Rule 8, the notice of completion of clerk's record is the document having jurisdictional significance, depriving the trial court of jurisdiction and conferring jurisdiction in the appellate court. Although the parents had already filed their notices of appeal, the trial court still had jurisdiction to enter a final judgment because the clerk had not yet entered the notice of completion of clerk's record on the CCS, and we concluded the parents' "premature notices of appeal did not deprive ...