Cindy K. Marsh, Appellant-Plaintiff,
Town of Dayton, Indiana, Appellee-Defendant
from the Tippecanoe Circuit Court The Honorable Thomas H.
Busch, Judge Trial Court Cause No. 79C01-1707-MI-118
ATTORNEY FOR APPELLANT James E. Ayers Wernle, Ristine &
Ayers Crawfordsville, Indiana
ATTORNEYS FOR APPELLEE Brian A. Karle Jason Ramsland Ball
Eggleston, PC Lafayette, Indiana
Cindy K. Marsh, a resident, landowner, and taxpayer of the
Town of Dayton, Indiana, filed a complaint for declaratory
judgment against the Town, challenging the adequacy of its
fiscal plan for a proposed annexation. The Town filed a
motion to dismiss Marsh's complaint for failure to state
a claim. After a hearing, the trial court granted the
Town's motion. Marsh appealed. The Town contends that we
must dismiss the appeal because Marsh failed to timely file a
motion to compel the court reporter to file the hearing
transcript with the trial court clerk. Because such a
dismissal is discretionary, rather than mandatory, we
disagree with the Town's contention and exercise our
discretion to consider the appeal. For her part, Marsh
contends that the trial court erred in granting the
Town's motion to dismiss her complaint. Finding no error,
we affirm the trial court.
and Procedural History
In June 2017, the Town approved a resolution for the adoption
of a fiscal plan for the annexation of approximately
fifty-five acres on which a residential subdivision is slated
to be built. In July 2017, Marsh filed a complaint for
declaratory judgment against the Town, asking that the
resolution be voided due to the Town's alleged failure to
comply with Indiana Code Section 36-4-3-13, which sets
various requirements for fiscal plans. The Town filed a
motion for judgment on the pleadings and a motion to dismiss.
After a hearing, the trial court denied the former and
granted the latter. In November 2017, Marsh filed an amended
complaint. The Town filed a motion to dismiss for failure to
state a claim pursuant to Indiana Trial Rule 12(B)(6). After
a hearing, the trial court granted the motion. Marsh now
appeals. Additional facts will be provided below.
Discussion and Decision
1 - Dismissal of an appeal for an appellant's failure to
timely file a motion to compel the court reporter to file the
transcript is discretionary, not mandatory.
In her notice of appeal, Marsh asked the court reporter to
prepare a transcript of the hearing on the Town's motion
to dismiss pursuant to Indiana Appellate Rule 11. Appellate
Rule 11(B) provides that the court reporter has forty-five
days after the appellant files the notice of appeal to file
the transcript with the trial court clerk. The court reporter
failed to meet that deadline. Appellate Rule 11(D) provides
that if the court reporter fails to file the transcript with
the clerk "within the time allowed, the appellant shall
seek an order from the Court on Appeal compelling the"
reporter to do so. The rule further provides, "Failure
of appellant to seek such an order not later than seven (7)
days after the Transcript was due to have been filed with the
trial court clerk shall subject the appeal to
dismissal." Id. Marsh failed to meet that
deadline, which fell on February 19, 2018. On February 27,
the Town filed a motion to dismiss Marsh's appeal; the
motion was not entered onto this Court's docket until
March 5. Meanwhile, on February 28, Marsh filed a motion to
compel, which this Court granted on March 6. On March 15,
this Court denied the Town's motion to dismiss.
The Town now asks us to reconsider that ruling, contending
that Marsh's appeal "should be dismissed pursuant to
the mandatory language of Appellate Rule 11(D)."
Appellee's Br. at 9. It is true, as the Town observes,
that "shall" has been deemed "mandatory"
for purposes of statutory construction. Id. (quoting
In re Bi.B., 69 N.E.3d 464, 469 (Ind. 2017)). But
Appellate Rule 11(D) does not say that an appeal "shall
be dismissed" if an appellant fails to meet the
seven-day deadline; instead, it says that such a failure
"shall subject the appeal to dismissal." We have
deemed such language to be discretionary, rather than
mandatory, with respect to the untimely filing of briefs.
See Haimbaugh Landscaping, Inc. v. Jegen, 653 N.E.2d
95, 98 (Ind.Ct.App. 1995) (stating that former Appellate Rule
8.1(A)'s provision that appellant's failure to timely
file brief "shall subject the appeal to summary
dismissal" did "not mandate an automatic
dismissal" and that "[d]ismissal for the late
filing of an appellant's brief is within the discretion
of this court"), trans. denied (1996). We see
no reason to decide any differently in this context, and the
Town has failed to argue, let alone establish, that the
denial of its motion to dismiss Marsh's appeal was an
abuse of this Court's discretion. Consequently, we
reaffirm our ruling and exercise our discretion to consider
2 - The trial court did not err in granting the Town's
motion to dismiss.
We now consider Marsh's argument that the trial court
erred in granting the Town's motion to dismiss her
amended complaint for failure to state a claim. Such a motion
"tests the legal sufficiency of a complaint, not the
facts supporting it." Allen v. Clarian Health
Partners, Inc., 980 N.E.2d 306, 308 (Ind. 2012).
"Thus, the motion tests whether the allegations in the
complaint establish any set of circumstances under which a
plaintiff would be entitled to relief." Id.
"In ruling on a motion to dismiss for failure to state a
claim, the trial court is required to view the complaint in
the light most favorable to the non-moving party with every
inference in its favor." Id. We review the
trial court's ruling de novo. Id. "We may