                                                                                   FILED
                                                                             Oct 11 2016, 8:30 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
      Patrick R. Hess                                            Cathleen M. Shrader
      Brian C. Heck                                              Michael H. Michmerhuizen
      Fort Wayne, Indiana                                        Fort Wayne, Indiana

      Robert W. Eherenman
      Andrew L. Teel
      Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Allen County Plan Commission,                              October 11, 2016
      et al.                                                     Court of Appeals Case No.
      Appellants-Respondents,                                    02A03-1412-PL-441
                                                                 Appeal from the Allen Superior
              v.                                                 Court
                                                                 The Honorable Stanley A. Levine,
      Olde Canal Place Association, et                           Judge
      al.                                                        Trial Court Cause No.
      Appellees-Petitioners.                                     02D03-1408-PL-300




      Altice, Judge.


                                                 Case Summary


[1]   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


      Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                      Page 1 of 9
      Olde Canal Place Association and its members 1 (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).


[2]   We reverse and remand with instructions.


                                        Facts & Procedural History

[3]   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.




      1
       These members comprise Physicians Health Plan of Northern Indiana, Inc., Thunderbolt Development,
      LLC, Indiana Wesleyan University (Marion College), Summit Hotel Properties, LLC, BSA Properties, LLC,
      and Anthony Wayne Area Council, Inc.

      Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                 Page 2 of 9
[4]   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.


[5]   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.”2 Appellant’s Appendix at 89.


[6]   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




      2
        Because the Commission and MRK do not challenge the trial court’s finding that the failure to timely file
      the Record was the result of mistake, surprise, or excusable neglect, we need not detail the communications
      between the attorneys that contributed to Attorney Westfall’s misunderstanding. For our purposes, it suffices
      to note that OCPA does not suggest that counsel for the Commission acted in bad faith or intentionally
      misled Attorney Westfall in any way. See Appellant’s Appendix at 15, n.2 (explaining that OCPA “does not
      mean to suggest that counsel for the . . . Commission, a respected member of the Bar, did anything wrong or
      untoward”).

      Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                        Page 3 of 9
      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.3 This appeal ensued.


                                             Discussion & Decision


[7]   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




      3
        We are unpersuaded by OCPA’s argument that this appeal is somehow premature because MRK did not
      file an amended motion to strike the Record as directed by the trial court. T.R. 60(C) provides that rulings
      granting or denying relief under T.R. 60(B) are final and appealable. Accordingly, this appeal is properly
      before us.

      Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                         Page 4 of 9
      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 v. Slusher, 768 N.E.2d 451, 461 (Ind. Ct. App. 2002), trans. denied.

      The movant bears the burden of establishing grounds for relief under T.R.

      60(B). Brimhall, 864 N.E.2d at 1153.


[8]   The trial court granted OCPA’s motion for relief from judgment pursuant to

      T.R. 60(B)(1), which provides that a trial court may relieve a party from a

      judgment where the party establishes “mistake, surprise, or excusable

      neglect[,]” provided that the party files its motion within one year of the entry

      of judgment and alleges a meritorious claim or defense. Huntington Nat. Bank v.

      Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015). To establish a meritorious

      claim or defense, a movant must show “that vacating the judgment will not be

      an empty exercise.” Welton v. Midland Funding, LLC, 17 N.E.3d 353, 355 (Ind.

      Ct. App. 2014) (quoting Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d

      65, 73 (Ind. 2006)).


[9]   OCPA’s motion for relief from judgment was filed well within the one-year

      timeframe applicable to T.R. 60(B)(1) motions, and MRK and the Commission

      do not challenge the trial court’s finding that the failure to timely file the Record




      Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016   Page 5 of 9
       was the result of mistake, surprise, or excusable neglect.4 Instead, they argue

       that OCPA is unable to establish a meritorious claim because it cannot

       belatedly file the Record, and under the bright-line rule set forth in First Am.

       Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014), amended on reh’g, 27

       N.E.3d 768, and Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20

       N.E.3d 149 (Ind. 2014) [hereinafter TOPS], the absence of the Record

       automatically results in the dismissal of OCPA’s petition for judicial review.5

       Thus, according to MRK and the Commission, vacating the the dismissal of

       OCPA’s petition was an empty exercise because OCPA cannot cure the

       deficiency that resulted in that dismissal. We agree.


[10]   Indiana Code sections 37-7-4-1600 through -1616, known as the 1600 Series,

       “establishes the exclusive means for judicial review of zoning decisions[.]” Ind.

       Code § 36-7-4-1601(a). The provision of the 1600 Series relevant to the case

       before us provides that “[w]ithin thirty (30) days after the filing of the petition,

       or within further time allowed by the court, the petitioner shall transmit to the

       court the original or a certified copy of the board record for judicial review of




       4
         In their appellants’ brief, MRK and the Commission expressly state that they “are not challenging whether
       the untimely Record was the result of mistake, surprise, or excusable neglect.” Appellant’s Brief at 12. In their
       reply brief, however, they argue that OCPA’s mistake was one of law, not fact, rendering T.R. 60(B)(1)
       inapplicable. We confine our analysis to whether OCPA established a meritorious claim as required by T.R.
       60(B)(1).
       5
         MRK and the Commission also argue that the bright-line rule set forth in Robertson and TOPS renders T.R.
       60(B)(1) inapplicable in cases where a petitioner for judicial review of an administrative decision fails to
       timely file the record of the administrative proceedings, and that the trial court therefore abused its discretion
       by even considering OCPA’s motion for relief from judgment. We do not address this argument because
       even assuming arguendo that T.R. 60(B)(1) is applicable, we conclude that a party who fails to timely file the
       record cannot establish a meritorious claim.

       Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                             Page 6 of 9
       the zoning decision[.]” I.C. § 36-7-4-1613(a). This section further provides that

       “[f]ailure to file the record within the time permitted by this subsection,

       including any extension period ordered by the court, is cause for dismissal of

       the petition for review by the court, on its own motion, or on petition of any

       party of record to the proceeding.” I.C. § 36-7-4-1613(b).


[11]   In Robertson and TOPS, our Supreme Court interpreted identical language

       appearing in the Administrative Orders and Procedures Act (AOPA)6 and set

       forth a bright-line rule. Specifically, the Court held that the statutory language

       makes dismissal mandatory when the agency record is not timely filed. TOPS,

       20 N.E.3d at 155 (holding that “a petitioner for review cannot receive

       consideration of its petition where the statutorily-defined agency record has not

       been filed”); Robertson, 19 N.E.3d at 762-63 (same). Additionally, in TOPS, the

       Court reaffirmed its prior holding that “the relevant provisions of AOPA do not

       permit untimely filing of the agency record or nunc pro tunc extensions of the

       filing deadline.” TOPS, 20 N.E.3d at 153 (quoting Ind. Family & Social Servs.

       Admin. v. Meyer, 927 N.E.2d 367, 372 (Ind. 2010)).




       6
         This court has observed that “[w]hen the General Assembly amended the Zoning Enabling Act in 2011, it
       brought the judicial review concepts from the [AOPA] into the zoning arena.” Dunmoyer v. Wells Cnty., Ind.
       Area Plan Comm’n, 32 N.E.3d 785, 786 n.9 (Ind. Ct. App. 2015). Accordingly, the judicial review provisions
       applicable to zoning decisions “are interpreted in the same manner as the relevant provisions of the AOPA
       and rely on case law established under the AOPA.” Id. The parties agree that the rules set forth in TOPS and
       Robertson apply with equal force in zoning matters. See Town of Pittsboro Advisory Plan Comm’n v. Ark Park,
       LLC, 26 N.E.3d 110, 117-19 (Ind. Ct. App. 2015) (relying on TOPS and Robertson to conclude that a
       petitioner who failed to timely file the board record was not entitled to judicial review of a zoning decision).



       Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016                          Page 7 of 9
[12]   The parties all agree that the trial court was required to dismiss OCPA’s

       petition for judicial review under the bright-line rule set forth in TOPS and

       Robertson. OCPA, however, asserts that the dismissal was properly set aside

       pursuant to T.R. 60(B)(1), while MRK and the Commission argue that such

       relief was improper because OCPA cannot establish a meritorious claim. In

       support of their argument that setting aside that dismissal was an empty

       exercise, MRK and the Commission direct our attention to Welton, which

       involved the collection of an unpaid credit card debt. 17 N.E.3d at 354. In that

       case, summary judgment was granted in the creditor’s favor after Welton failed

       to file a response. Shortly thereafter, Welton filed a T.R. 60(B)(1) motion for

       relief from judgment, arguing that the failure to file a timely response was due

       to excusable neglect because her attorney had incorrectly calendared the

       response date. As for a meritorious defense, Welton asserted that the

       underlying debt had already been paid. The trial court denied Welton’s

       motion, and this court affirmed. In reaching its conclusion, this court

       recognized that a “bright-line rule” precludes the late filing of responses in

       opposition to a motion for summary judgment. Id. at 355. Accordingly,


               [e]ven if Welton’s motion for relief from judgment had been
               granted, Welton would not have been permitted to belatedly
               respond or designate evidence in opposition to Midland’s motion
               for summary judgment. Without a response, it is hard to
               imagine how the outcome of the summary judgment proceedings
               would have been different. Because vacating the judgment
               would have been an empty exercise, Welton has not shown she
               has a meritorious defense to Midland’s motion for summary
               judgment.

       Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016   Page 8 of 9
       Id. at 356.


[13]   We find Welton instructive. Because OCPA is not permitted to belatedly file the

       Record, the Record is not, and will never be, properly before the trial court.

       Without the Record, OCPA’s petition cannot be considered. See TOPS, 20

       N.E.3d at 155; Robertson, 19 N.E.3d at 762-63. The trial court’s order setting

       aside the dismissal of OCPA’s petition was therefore an empty exercise.

       Because OCPA cannot establish a meritorious claim, the trial court abused its

       discretion in granting the motion for relief from judgment. We therefore

       reverse and remand with instructions to vacate the trial court’s judgment setting

       aside its dismissal of OCPA’s petition for judicial review.


[14]   Judgment reversed and remanded with instructions.


[15]   Bailey, J. and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016   Page 9 of 9
