Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants (Respondents below),
Joseph V. DeSpirito, Appellee (Petitioner below).
from the Monroe Circuit Court, No. 53C01-1509-PL-1714 The
Honorable E. Michael Hoff, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT TOWN OF ELLETTSVILLE, INDIANA PLAN
COMMISSION Darla S. Brown Sturgeon & Brown, P.C.
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
ATTORNEYS FOR APPELLEE Michael Rabinowitch Maureen E. Ward
Wooden McLaughlin LLP Indianapolis, Indiana
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.
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.
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.
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 the Court of Appeals of jurisdiction to hear the
appeal." Id. at 581.
unlike in D.J., the record on appeal shows no final
judgment. Indiana Appellate Rule 2(H) defines a judgment as a
"final judgment" if, among other things, it
disposes of all claims as to all parties or the trial court
expressly determines in writing that there is no just reason
for delay and expressly directs entry of judgment under
Indiana Trial Rule 54(B) as to fewer than all the claims or
parties, or under Indiana Trial Rule 56(C) as to fewer than
all the issues, claims, or parties. The Order left the
preliminary injunction in place, did not rule on
DeSpirito's request for damages or a permanent
injunction, and did not determine there is no just reason for
delay and expressly direct entry of judgment on less than all
of the issues, claims, or parties.
judicial economy under this case's particular
circumstances, we elect to stay this appeal's
consideration. We remand this case to the trial court to
decide, in its discretion but within the next 90 days,
whether to (1) expressly determine in writing that there is
no just reason for delay and (2) expressly direct entry of
judgment under Trial Rule 54(B) as to fewer than all the
claims or parties, or under Trial Rule 56(C) as to fewer than
all the issues, claims, or parties. See App. R.
2(H)(2). After that decision, the Appellants shall promptly
file a supplemental appendix including copies of the updated
CCS and any new order(s) entered by the court on remand. We
caution, though, that in the overwhelming majority of cases,
the proper course for an appellate court to take where it
finds appellate jurisdiction lacking is simply to dismiss the
appeal. See, e.g., In re Paternity of C.J. A., 12
N.E.3d 876 (Ind. 2014); Ramsey v. Moore, 959 N.E.2d
246 (Ind. 2012).
Appellate Rule 65(E), this opinion is effective immediately,
and the trial court need not await a certification of this
opinion by the Clerk of Courts before exercising the limited
jurisdiction this remand allows. Given this remand's
interlocutory nature, no petitions for rehearing under
Appellate Rule 54(A)(1) shall be filed on ...