 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be                      Oct 28 2014, 9:20 am
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT                         ATTORNEY FOR APPELLEE
PATRICK SKOWONEK                                METROPOLITAN DEVELOPMENT
                                                COMMISSION, CITY OF INDIANAPOLIS:

LAUREL R. K. GILCHRIST                          ANDREW P. SEIWERT
ROCHELLE E. BORINSTEIN                          Office of Corporation Counsel
Gilchrist & Borinstein                          Indianapolis, Indiana
Indianapolis, Indiana

                                                ATTORNEYS FOR APPELLEE
                                                BROAD RIPPLE ASSOCIATES, LLC:

                                                DAVID K. HERZOG
                                                JON LARAMORE
                                                APRIL E. SELLERS
                                                Faegre Baker Daniels LLP
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

GOOD EARTH NATURAL FOODS, and                   )
PATRICK SKOWRONEK,                              )
                                                )
       Appellant-Petitioner,                    )
                                                )
               vs.                              )      No. 49A04-1403-PL-120
                                                )
METROPOLITAN DEVELOPMENT                        )
COMMISSION, CITY OF INDIANAPOLIS,               )
                                                )
       Appellee-Respondent,                     )
                                                )
       And                                      )
                                                )
BROAD RIPPLE ASSOCIATES, LLC,                   )
                                                )
        Appellee-Intervenor                             )

                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Michael D. Keele, Judge

                                Cause No. 49D07-1311-PL-041701

                                          October 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge



        Good Earth Natural Foods (Good Earth) and Patrick Skowronek (collectively, the

Remonstrators) filed a complaint for judicial review of a zoning decision made by the

Metropolitan Development Commission (the MDC) regarding variances sought by Broad

Ripple Associates, LLC (Broad Ripple) concerning the potential development of land.

Skowronek appeals the dismissal of that complaint.1 Skowronek presents several issues

for review, one of which is dispositive. That issue, restated, is: did the Remonstrators’

failure to timely file the record of the MDC proceeding justify the dismissal of their

complaint, or were the materials submitted in conjunction with the complaint sufficient to

permit the trial court to review the MDC’s decision?

        We affirm.2



1
  Originally, Good Earth joined Skowronek as an appellant in this action. After briefing was completed
but before oral argument, Good Earth filed a “Motion to Dismiss Good Earth Natural Foods as an Appellant
in this Case.” We granted that motion and therefore Good Earth is no longer a party in this appeal.
2
   Oral argument was conducted on October 1, 2014. We thank counsel for the helpful discussion of the
issues presented in this case.
                                                   2
          Sometime in 2013, Broad Ripple filed petitions with the MDC for variances

concerning the potential development of land. In those petitions, Broad Ripple requested

relief from zoning ordinances limiting the height of buildings, the number of parking

spaces allowed, and outdoor seating. On July 10, 2013, the Remonstrators filed statements

in opposition to the requests for variances. A hearing was convened on August 15, 2013

before a hearing examiner. Following that hearing, the requests for variances were granted.

On August 20, 2013, the Remonstrators appealed that decision to the MDC. On October

16, 2013, the MDC conducted a hearing at which testimony and documentary evidence

were presented. Following that hearing, the MDC approved the requests for variances.

          On November 15, 2013, the Remonstrators appealed that decision to the Marion

Superior Court by filing a complaint. On November 21, 2013, the Remonstrators filed a

request for the record pursuant to Ind. Code Ann. § 36-7-4-1613 (West, Westlaw current

with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular

Technical Session of the 118th General Assembly). Sometime in early to mid-December

2013, Dolores Hampton, who had been hired to transcribe the MDC proceedings for

purposes of the Remonstrators’ complaint, was contacted by the MDC secretary, Emily

Holmes, who advised Hampton that a motion for an extension of time had been filed and

that Hampton would not have to submit the transcript by the original deadline.3 Hampton




3
    The original deadline would have been December 16, 2013 because December 15 fell on a Sunday.

                                                   3
later stated in an affidavit that she would have submitted the transcript in a timely fashion

if she had not received that phone call. On January 9, 2014, Hampton delivered three

copies of the relevant transcripts to the MDC.

       On January 14, 2014, the MDC filed a motion to dismiss the complaint on grounds

that the Remonstrators had failed to comply with the following provision of I.C. § 36-7-4-

1613(a): “Within 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 the zoning decision [.]” Broad Ripple,

which sought and obtained the variances, was granted permission to intervene. On

February 21, 2014, Skowronek filed an objection to the motion to dismiss. In it, he claimed

that his failure to file the record did not mandate dismissal because he had attached the

MDC’s findings of fact to the complaint. He claimed these were sufficient to permit

judicial review of the matter. Skowronek also contended that the MDC’s findings were

facially deficient. Lastly, he contended that public policy considerations counseled against

dismissal because Holmes, an MDC employee, telephoned Hampton, the person hired to

transcribe the record, and advised Hampton that an extension had been filed and therefore

there was no need to submit the transcripts by the thirty-day deadline. An affidavit

completed by Hampton to that effect was attached to the objection.

       The MDC and Broad Ripple filed replies to Skowronek’s objection. The MDC

contended that (1) its findings of fact and the decision, which were attached as an exhibit

to the complaint, were not sufficient to permit judicial review, (2) at least one of

                                             4
Skowronek’s arguments required the trial court to review the record, and (3) the court

reporter’s affidavit did not reflect that the court reporter informed Good Earth or

Skowronek about the purported communication from Holmes to Hampton. According to

the MDC, “[Skowronek and Good Earth] both knew that neither the record nor any

extension of time to do so had been filed. It was their obligation to do so.” Appellant’s

Appendix at 45. Accordingly, neither party could have relied in good faith upon Hampton’s

belief with respect to the filing deadline. Broad Ripple concluded that I.C. § 36-7-4-1613

required the parties to file the record within thirty days of the complaint or to seek an

extension. Inasmuch as they did neither, according to Broad Ripple, dismissal was

appropriate because the record was necessary to address at least some of the claims

presented in the complaint.

       A hearing was conducted on the motion to dismiss. In addition to the contentions

set out above, the parties also addressed the public policy argument raised by Skowronek

concerning the alleged conversation between Holmes and Hampton. The MDC contended

that even if this conversation occurred, it did not relieve Good Earth or Skowronek of their

statutory duty to act, i.e., to either file the record or file for an extension of time in which

to do so within thirty days of filing the complaint. At this hearing, Good Earth’s attorney

asserted for the first time that she also had received a call from an MDC employee advising

her that the MDC would be filing an extension of time to file the record.




                                               5
       Following the hearing, the trial court granted the MDC’s motion to dismiss, thereby

dismissing both the complaint and a petition filed by the Remonstrators to stay the zoning

decision. Skowronek appeals that decision.

       This court held in Howard v. Allen Cnty. Bd. of Zoning Appeals, 991 N.E.2d 128

(Ind. Ct. App. 2013) that the failure to timely file an agency record is an error of procedure,

not jurisdiction. Indiana trial courts possess two kinds of jurisdiction – subject matter

jurisdiction and personal jurisdiction. Id. We observed that “[t]he timing of filing the

agency record implicates neither[.]” Id. at 131 (quoting Wayne Cnty. Prop. Tax Assessment

Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.

2006)). Thus, jurisdiction is not implicated in reviewing cases of this nature, and we review

the trial court’s ruling de novo. See Howard v. Allen Cnty. Bd. of Zoning Appeals, 991

N.E.2d 128.

       The dispositive question in this case is whether the trial court was justified in

dismissing the complaint on the grounds that the Remonstrators failed to timely file the

record of the MDC proceeding. As set out above, I.C. § 36-7-4-1613(a) requires that

parties seeking judicial review of a zoning decision must, within thirty days after the filing

of the petition for review, either file the agency record or request an extension of time to

do so. The MDC’s motion to dismiss was premised upon the claim that “Indiana Code 36-

7-4-1613 does not grant the Court the discretion to accept either an untimely record or a

nunc pro tunc request for an extension, and requires dismissal.” Appellant’s Appendix at

18. In the order granting that motion, the trial court did not explain the basis of its ruling.

                                              6
It might be presumed that the complaint was dismissed on the only ground stated in the

motion, i.e., that the trial court was required to dismiss the complaint because the

appellants failed to timely file a record or request an extension. Yet, the court’s comments

at the conclusion of the hearing on the appellees’ motion to dismiss appear to reflect its

view that dismissal was discretionary, not mandatory. The court stated:

       It’s clear to me that the mandates in the statute that govern petitions for
       judicial review of zoning decisions are quite clear. And there’s no question
       in this trial court’s mind that it is the Petitioner’s duty and responsibility to
       submit the Commission’s record to the Court as prescribed by that statute.

       I hear petitions for judicial review on a fairly regular basis. By local rule,
       this is the court in Marion County that hears those. And in my prior capacity,
       I heard many petitions for judicial review of State agency decisions under
       similar provisions in AOPA. And this question has come up a handful of
       times before this trial court.

       It’s clear to me as well that an adjudication of the Petitioner’s claims in this
       case requires a review of the record and it’s not simply a question of law.

       So, with that said, I’m going to find that the Plaintiffs have failed to timely
       file the record as required, and consequently the complaint should be and is
       hereby dismissed.

Transcript at 48 (emphasis supplied).

       Skowronek presents a two-part argument on this issue. He must prevail on both in

order to succeed in this appeal. First, he claims that dismissal under these circumstances

is not mandatory, but rather discretionary. He contends that dismissal is discretionary in

cases where the court need not review the agency record in order to resolve the issues

presented. Assuming that to be true, the second part of Skowronek’s argument is that the

portion of the record submitted with his complaint was sufficient to permit judicial review

                                              7
of his claim that the MDC’s findings of fact were deficient as a matter of law. According

to Skowronek, the findings were, by themselves, sufficient to reflect that the MDC

misapplied the test for “practical difficulties” as that phrase is used in I.C. § 36-7-4-

1613(b).

       At the outset, it appears that the MDC’s position on the question of whether

dismissal was mandatory, and not discretionary, is not the same on appeal as it was below.

The language in its motion to dismiss, reproduced above, urged the trial court to dismiss

on the basis that the court had no discretion to do otherwise in view of the appellants’

failure to timely file a record or request an extension. On appeal, however, the MDC states:

“[w]hile the Commission does not dispute that Indiana Code section 36-7-4-1613(b)

affords the trial court discretionary, not mandatory, language, [sic] the Commission

contends that dismissal was absolutely warranted in this matter and supported by Indiana

case law.”    Brief of MDC at 11-12.        Now apparently conceding that dismissal is

discretionary under I.C. § 36-7-4-1613(b), MDC contends dismissal was “absolutely

warranted.” Brief of MDC at 12.

       With respect to the first part of Skowronek’s argument, there is authority supporting

both sides of this question, i.e., whether dismissal for failure to file the agency record is

discretionary or mandatory. In Indiana Family & Social Servs. Admin. v. Meyer, 927

N.E.2d 367 (Ind. 2013), with two justices of the view that dismissal is mandatory, two

justices of the opposite view, and one justice not participating, our Supreme Court was

unable to reach a majority consensus on the question.          It appears, however, that a

                                             8
reconsideration of the issue is in the offing. The Supreme Court recently granted transfer

in two Court of Appeals cases that addressed the question. In Brown v. State, Dep’t of

Child Servs., 993 N.E.2d 194 (Ind. Ct. App. 2013), this court seemed to acknowledge that

the failure to file the record is not fatal, but nonetheless held that upon the particular facts

of that case, dismissal was warranted because the agency record was necessary to review

the claims presented upon appeal. Our Supreme Court initially granted transfer in Brown,

but ultimately granted the appellant’s petition to dismiss the appeal after transfer had been

granted. See Brown v. State, Dep’t of Child Servs., 2 N.E.3d 1263 (Ind. 2014)

        In First Am. Title Ins. Co. v. Robertson ex rel. Ind. Dep’t of Ins., 990 N.E.2d 9 (Ind.

Ct. App. 2013), trans. granted, this court affirmed the denial of a motion to dismiss based

upon the failure to file the agency record. The court concluded that the materials submitted

by the petitioner in conjunction with its complaint were sufficient to permit a meaningful

review. The Supreme Court granted transfer in that case, and oral argument was conducted

on May 1, 2014. As of October 15, no opinion had yet been handed down.

        In point of fact, the members of this panel have differing opinions on the question

of whether dismissal is mandatory where a party has failed to timely file the agency record.

In light of the impending (we presume) resolution of that question by our Supreme Court,

however, it serves no useful purpose to detail the nature of our individual views4 when we



4
  For expositions of the competing views on this issue, we refer the reader to Lebamoff Enters., Inc. v. Ind.
Alcohol & Tobacco Comm’n, 987 N.E.2d 525, 530 (Ind. Ct. App. 2013) (“failure to timely file the record
is ‘cause for dismissal’ under Indiana Code section 4-21.5-5-13, but cause for dismissal does not mean that
the case must be dismissed, especially where … the record was not required for a ruling”) and Indiana State
                                                     9
are all in agreement that, even assuming for the sake of argument that Skowronek were to

prevail on the first part of his two-part claim, he would lose on the second because the

submitted materials were not sufficient to permit review of the case on the merits. Simply

put, a review of the record of the agency proceedings was necessary to resolve

Skowronek’s claims.

        Clearly, the parties disagree as to whether this case fits within the Lebamoff

exception.     The MDC and Broad Ripple contend that the claims presented by the

Remonstrators amount to little more than claims of insufficient evidence – or, in this

context, a lack of substantial evidence. In support, Broad Ripple directs our attention to

Paragraphs 25 and 26 of the complaint. Paragraph 24 illustrates the same point. Those

paragraphs read as follows:

        24.    The Petitioner has offered no evidence into the record, nor made any
        claim of any economic injury, significant or otherwise. Instead, the
        Petitioner contends the project, as proposed, cannot fit the “adopted land-use
        plan recommendations.” The Petitioner’s failure to provide substantial, or
        any, evidence of a significant economic injury, makes the grant of the
        requested height variance by the Commission, inappropriate, as a matter of
        law. Absent substantial evidence of practical difficulties which include
        significant economic injury, the Petitioners [sic] request for the variances
        must fail.

        25.     The Approval of the Height Variance was unsupported by substantial
                evidence.



Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 813 N.E.2d 330, 333 (Ind. Ct. App. 2004) (“[i]f the petitioner
fails to either file the agency record within thirty days of filing their petition, or request and receive an
extension of time within that thirty-day period, the trial court must dismiss the petition for review because
it lacks further jurisdiction to consider it”).
.
                                                    10
       The written Findings of Fact of the Metropolitan Development Commission
       (“MDC) state that the application of the 35 foot height requirement is in
       conflict with the recommendations of [the] adopted land use plan. This
       statement is factually incorrect. The property in question is currently zoned
       C-S. C-S allows for more than 75 different business types. The land owner
       has failed to show any evidence supporting a contention or statement that the
       property cannot be developed for one of these business types. Ind. Code 36-
       7-4-918.5 specifically states that the written findings of fact must show that
       the strict application of the statute will result in practical difficulties in the
       use of the property. This test was never applied to the variance requested in
       this case.

       26.    The Approval of the Outdoor Seating Area was unsupported by
              Substantial Evidence.

       The written findings of fact state that prohibiting outdoor seating will impair
       the project and the urban lifestyle in vision for the area. There has been no
       showing that seating such as this is required for the area, nor that one of the
       75 different business types currently permitted for the property cannot be
       economically feasible and also support the urban lifestyles envisioned by the
       plan. Again, the Petitioner has focused on the fact that C-S zoning does not
       support the project as currently envisioned, rather than noting that the statute
       requires a showing that the strict application of the statute will result in
       practical difficulties in the use of the property. This test was never explored,
       examined or met.

Appellant’s Appendix at 10-11. These paragraphs allege that Broad Ripple did not present

evidence sufficient to establish the criteria necessary to attain the variances.

       The MDC contends that Lebamoff does not apply here because “the underlying

merits of this case present more than a pure question of law for the court to decide.” Brief

of Appellee MDC at 13. Specifically, in order to evaluate the Remonstrators’ claim, a court

must review the full record in order to decide whether the MDC’s decision was supported

by the requisite quantum of evidence. The appellees contend that in such a case, the failure

to file the record of the administrative proceedings is fatal to the Remonstrators’ cause of

                                              11
action. See Howard v. Allen Cnty. Bd. Of Zoning Appeals, 991 N.E.2d 128 (dismissal was

affirmed where the only material submitted with the petitioner’s complaint was a list of

individuals who presented evidence at the board hearing, and the petition challenged the

sufficiency of the evidence supporting the Board’s decision). See Reedus v. Ind. Dep’t of

Workforce Dev., 900 N.E.2d 481 (Ind. Ct. App. 2009) (affirmed dismissal for failure to file

the record where the petitioner claimed that the agency’s decision was not supported by

the record); MicroVote Gen. Corp. v. Office of Sec’y of State, 890 N.E.2d 21 (Ind. Ct. App.

2008) (affirmed dismissal for failure to file record where the claim was that the decision

was not supported by sufficient evidence), trans. denied.

       Skowronek counters that the claims presented in the complaint incorporate several

legal theories, including that the findings of fact themselves are deficient and thus contrary

to law. Accordingly, “no review of the record beyond those Findings of Fact is necessary

to make that determination.” Brief of Appellant at 9. Yet, Skowronek also acknowledges

that “[t]hose portions of Appellants’ eight (8) page Complaint alleging a lack of substantial

evidence arguably require a review of the agency record.” Id. at 8-9. Skowronek’s main

point is that the complaint challenges the adequacy of the findings of fact, and this

determination can be made merely by reviewing the face of the MDC’s findings and

conclusions. Similarly, Skowronek contends that his second claim, i.e., that the MDC

failed to apply governing Indiana law in determining whether compliance with the rules

for a C-S zoning district would result in “practical difficulties” in the use of property, is a



                                              12
pure question of law. Thus, he urges, these claims may be reviewed without need to

consider the record of the proceeding before the MDC.

       Whether the complaint can be said to allege one theory or multiple theories,

Paragraph 24, 25, and 26 clearly reflect that the complaint at least includes an allegation

that the evidence presented by Broad Ripple at the hearing before the HDC was not

sufficient to establish the criteria necessary to obtain a variance. The trial court could not

plausibly have resolved this claim without reviewing the record of the proceedings before

the HDC. Therefore, the record was necessary and the Lebamoff exception does not apply.

The trial court did not err in dismissing Skowronek’s complaint pursuant to I.C. § 36-7-4-

13.

       Judgment affirmed.

       VAIDIK, C.J., and MAY, J., concur.




                                             13
