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Marsh v. Town of Dayton

Court of Appeals of Indiana

December 4, 2018

Cindy K. Marsh, Appellant-Plaintiff,
v.
Town of Dayton, Indiana, Appellee-Defendant

          Appeal 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

          CRONE, JUDGE.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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

         Section 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.

         [¶3] 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.

         [¶4] 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 the appeal.

         Section 2 - The trial court did not err in granting the Town's motion to dismiss.

         [¶5] 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 ...


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