Allen County Plan Commission, et al. Appellants-Respondents,
Olde Canal Place Association, et al. Appellees-Petitioners.
from the Allen Superior Court Trial Court Cause No.
02D03-1408-PL-300 Honorable Stanley A. Levine, Judge
Attorneys for Appellants Patrick R. Hess Brian C. Heck Fort
Wayne, Indiana Robert W. Eherenman Andrew L. Teel Fort Wayne,
Attorneys for Appellees Cathleen M. Shrader Michael H.
Michmerhuizen Fort Wayne, Indiana
MRK II, LLC and Max R. Kendall (collectively, MRK) and the
Allen County Plan Commission (the Commission) appeal from the
trial court's order granting Olde Canal Place Association
and its members (collectively, OCPA) relief from judgment
under Ind. Trial Rule 60(B)(1). On appeal, MRK and the
Commission argue that the trial court abused its discretion
in granting relief because OCPA cannot establish a
meritorious claim as required by T.R. 60(B)(1).
We reverse and remand with instructions.
& Procedural History
On June 4, 2014, MRK filed a petition to rezone a parcel of
property located in Allen County from C2/Limited to
Commercial to R3/Multiple Family Residential. At the same
time, MRK also filed an application for approval of a primary
development plan for the construction of a multi-family
residential complex on the property. In conjunction with the
development plan, MRK requested waivers of three applicable
design and development standards, including the maximum
height standard for primary buildings in an R3 district. The
Commission held a public hearing on MRK's applications on
July 10, 2014, at which OCPA appeared in opposition. On July
17, 2014, the Commission approved MRK's applications.
On August 18, 2014, OCPA filed a petition for judicial review
challenging the Commission's decision. On September 16,
2014, OCPA filed a motion for extension of time to file the
record of the proceedings before the Commission (the Record).
The same day, the trial court granted the motion and extended
the filing deadline to November 17, 2014. The November 17
deadline passed without OCPA filing the Record or requesting
another extension of time.
On November 21, 2014, MRK filed a motion to dismiss due to
OCPA's failure to timely file the Record. OCPA filed the
Record on November 25, 2014, and MRK responded by filing a
motion to strike. On December 8, 2014, OCPA filed their
response to MRK's motion to dismiss, which also contained
an alternative motion to set aside any prospective dismissal
pursuant to T.R. 60(B)(1). At the same time, OCPA filed the
affidavit of Robert Westfall, one of its attorneys. In the
affidavit, Attorney Westfall explained that he
"mistakenly thought that because the . . . Commission
would be preparing the Record internally, it would also file
same with the court." Appellant's Appendix at
On December 11, 2014, the trial court held a hearing on
MRK's motion to dismiss. At the hearing, counsel for OCPA
conceded that under existing case law, the trial court was
required to dismiss the petition for judicial review due to
the failure to timely file the Record, which the trial court
did. After the dismissal, however, OCPA asked the trial court
to set aside the dismissal under T.R. 60(B)(1). Specifically,
OCPA argued that the failure to timely file the agency record
was the result of mistake, and that OCPA had a meritorious
claim because it believed the Commission's decision was
arbitrary, capricious, and not supported by substantial
evidence. MRK opposed the request, arguing that even if the
dismissal was set aside, the case would have to be dismissed
again because the trial court cannot accept a belatedly filed
Record. Nevertheless, the trial court granted the motion to
set aside the dismissal, and MRK renewed its motion to strike
the Record. The trial court directed MRK to file an amended
motion to strike within a week of the hearing. Instead of
doing so, MRK filed its notice of appeal four days
later. This appeal ensued.
In their joint brief, MRK and the Commission argue that the
trial court abused its discretion by granting OCPA's T.R.
60(B) motion for relief from judgment. T.R. 60(B) provides a
mechanism by which a party may obtain relief from the entry
of a final judgment. Laflamme v. Goodwin, 911 N.E.2d
660, 664 (Ind.Ct.App. 2009). "A motion made under T.R.
60(B) is addressed to the equitable discretion of the trial
court, and we will reverse only upon an abuse of that
discretion." Brimhall v. Brewster, 864 N.E.2d
1148, 1152-53 (Ind.Ct.App. 2007), trans. denied. An
abuse of discretion occurs when the judgment is clearly
against the logic and effect of the facts and inferences
supporting the judgment. Breneman ...