                                                                              FILED
                                                                         May 27 2020, 9:54 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Kristen D. Hill                                           Geoffrey G. Giorgi
      Law Offices of Kristen D. Hill                            Giorgi and Bebekoski, LLC
      Munster, Indiana                                          Crown Point, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      City of Hammond,                                          May 27, 2020
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                19A-OV-2609
              v.                                                Appeal from the
                                                                Lake Superior Court
      John Rostankovski,                                        The Honorable
      Appellee-Defendant.                                       Michael N. Pagano, Special Judge
                                                                Trial Court Cause No.
                                                                45D09-1805-OV-1637



      Kirsch, Judge.


[1]   The City of Hammond (“the City”) appeals an order from the Lake Superior

      Court (“trial court”), which affirmed a ruling by the Hammond City Court

      (“the City Court”) dismissing a civil zoning ordinance violation complaint filed

      by the City against John Rostankovski (“Rostankovski”). The City raises two

      issues, which we consolidate and restate as: whether the trial court erred in

      affirming the City Court because the City Court’s dismissal was based on an

      Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020                            Page 1 of 10
      affirmative defense not raised or pleaded by Rostankovski. In his response

      brief, Rostankovski raises the following cross-appeal: whether this appeal

      should be dismissed because the Indiana Court of Appeals does not have

      jurisdiction to review the trial court’s order because the order was an appellate

      decision pursuant to Indiana Code section 33-35-5-10.


[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   Rostankovski was the owner of residential rental property located at 436 Spruce

      Street in Hammond, Indiana. Appellant’s App. Vol. 2 at 42-43. In October 2017,

      the City filed a complaint in the City Court alleging that a violation of the

      City’s zoning ordinance existed at the property. Id. at 37. In the complaint, the

      City alleged that the deck of the house violated the side yard restrictions under

      Section 3.31(B) of the City’s Zoning Code, Ordinance 8514, which provides in

      relevant part that neither side yard on the property shall have a width of less

      than three feet. Id. at 37, 43-44. It is undisputed that the deck at

      Rostankovski’s property falls within the three-foot setback requirement. Id. at

      24.


[4]   Rostankovski filed a motion to dismiss the City’s complaint, and the City filed a

      response. Id. at 38-41, 42-46. On April 11, 2018, the City Court heard

      argument on the motion to dismiss, and on April 20, 2018, the City Court

      granted Rostankovski’s motion to dismiss. Id. at 12, 19-36. Although the City

      Court found that the deck violated the side yard setback requirement, it also

      Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020          Page 2 of 10
      found that the City was barred from enforcing the setback requirement against

      Rostankovski due to laches. Id. at 12.


[5]   On April 30, 2018, the City filed a motion to correct error with the City Court

      and argued that the City Court erred in dismissing the complaint because no

      facts were presented to the City Court that would support a finding of laches

      and that laches is not a defense to a municipality’s action to enforce its zoning

      ordinances. Id. at 13-16. The City Court denied the motion to correct error on

      May 29, 2018. Id. at 17. The City then filed with the trial court its “Petition for

      Appellate Review of Judgment in the Hammond City Court Pursuant to I.C.

      33-35-5-10,” (“the Petition”) seeking appellate review of the City Court’s order

      of dismissal. Id. at 7-11. In the Petition, as required under Indiana Code

      section 33-35-5-10, the City established that its population fit within the

      parameters of the statute, that it had timely filed a bond with the City Court,

      that it had filed a motion to correct error in the City Court and that it had

      tendered a transcript of proceedings and the relevant pleadings from the City

      Court. Id. at 8-11. On May 31, 2018, the trial court dismissed the City’s

      appeal, finding that the City had no right to an appeal from the City Court, and

      therefore, the trial court lacked subject matter jurisdiction. Id. at 47.


[6]   The City filed a motion to correct error in the trial court, which was denied. Id.

      at 48-51. The City appealed the trial court’s order to this court, and on appeal,

      this court found that the City does have a right to appeal under Indiana Code

      section 33-35-5-10, and the trial court erred in dismissing the City’s petition for

      lack of subject matter jurisdiction. City of Hammond v. Rostankovski, 119 N.E.3d

      Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020            Page 3 of 10
      113, 116 (Ind. Ct. App. 2019). The case was remanded to the trial court for

      further proceedings. Id.


[7]   On remand, Rostankovski filed a “Motion to Dismiss and/or Strike” the

      content of the City’s petition for relief which urged the trial court to rely only on

      the transcript and the City’s motion to correct error that had been filed in the

      City Court. Id. at 68-71. After a hearing was held, the trial court issued an

      order in which it affirmed the City Court’s ruling and determined that the City

      had failed to “raise one key issue [to the City Court], which would have been

      dispositive: that the doctrine of laches does not apply to municipalities.” Id. at

      6. The trial court further determined that, because this issue was not raised to

      the City Court, it could not be raised on appeal to the trial court and that “the

      issue ha[d] been waived below” and could not be reviewed. Id. The order also

      stated, “Seeing no just reason for delay, this shall be a final appealable order.”

      Id. The City now appeals.


                                      Discussion and Decision

                                       I.       Lack of Jurisdiction
[8]   In his Appellee’s Brief, Rostankovski contends that the City’s appeal should be

      dismissed due to this court’s lack of subject matter jurisdiction over the trial

      court’s order. He argues that this court does not have jurisdiction to decide the

      City’s appeal because the appellate procedure for a determination made by the

      City Court is contained in Indiana Code section 33-35-5-10, and the statute

      does not include the Indiana Court of Appeals as the court of review of City


      Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020           Page 4 of 10
      Court proceedings. Rostankovski asserts that because the City has already

      exhausted its appeal to the trial court as provided in Indiana Code section 33-

      35-5-10 and because the statute does not include any provision for appealing the

      trial court’s ruling after its review of the City Court’s determination, an appeal

      to the Indiana Court of Appeals is not the proper appellate procedure, and

      therefore, we do not have subject matter jurisdiction to review the City’s appeal.

      The City counters that, although Rostankovski is correct that Indiana Code

      section 33-35-5-10 does not specifically set forth a right to appeal the trial

      court’s order after a review under that statute, the absence of specific authority

      does not prohibit our review of the trial court’s order. We agree with the City.


[9]   Indiana Code section 33-35-5-10 sets out the procedure in which a party in a

      civil action from certain city courts can take an appeal from the judgment of

      those city courts. The statute provides several steps that must be taken for such

      an appeal to be accepted but is silent on the issue of Indiana Court of Appeals

      jurisdiction over such cases. Although Rostankovski argues that the legislature

      has the power to limit the jurisdiction of this court to hear appeals of a trial

      court’s ruling under Indiana Code section 33-35-5-10, and that its silence on the

      issue is a limit of that jurisdiction, the power to determine when appeals of legal

      actions may be taken to the Indiana Court of Appeals actually lies within the

      exclusive province of the Indiana Supreme Court by application of the Indiana

      Rules of Appellate Procedure. The Indiana Supreme Court has the authority to

      adopt, amend, and rescind rules of court that govern and control practice and

      procedure in all the courts of Indiana. Ind. Code § 34-8-1-3. Accordingly, our


      Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020            Page 5 of 10
       courts have repeatedly held that when there is a conflict between a procedural

       statute and a procedural rule adopted by our supreme court, the supreme court

       rule takes precedence and the conflicting statute is nullified. Owen Cty. ex rel.

       Owen Cty. Bd. of Comm’rs v. Ind. Dep’t of Workforce Dev., 861 N.E.2d 1282, 1288

       (Ind. Ct. App. 2007). Here, there is no conflict between Indiana Code section

       33-35-5-10 and the Indiana Appellate Rules as the statute is silent as to any lack

       of jurisdiction to seek an appeal with the Indiana Court of Appeals. But, to the

       extent that there is any conflict, the Indiana Appellate Rules take precedence.


[10]   Under Indiana Appellate Rule 5, “[e]xcept as provided in [Appellate] Rule 4,

       the Court of Appeals shall have jurisdiction in all appeals from Final Judgments

       of Circuit, Superior, Probate, and County Courts, notwithstanding any law,

       statute or rule providing for appeal directly to the Supreme Court of Indiana.”

       Ind. Appellate Rule 5(A). Appellate Rule 4 establishes the matters over which

       the Indiana Supreme Court has mandatory and exclusive jurisdiction, which

       include final judgments declaring a state or federal statute unconstitutional,

       appeals involving waiver of parental consent to abortion, and appeals involving

       mandate of funds. Ind. Appellate Rule 4(A)(1)(b)-(d). Because the City’s

       appeal does not fall into one of these categories, the exception referenced in

       Appellate Rule 5(A) does not apply, and the Court of Appeals has jurisdiction

       over this appeal.


[11]   Further, under Appellate Rule 2(H), “[a] judgment is a final judgment if . . . it

       disposes of all claims as to all parties . . . .” App. R. 2(H)(1). Here, the trial

       court’s order from which the City appeals affirmed the dismissal of the City’s

       Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020            Page 6 of 10
       complaint against Rostankovski and disposed of all claims as to all parties.

       Appellant’s App. Vol. 2 at 6. The order also included language that stated,

       “[s]eeing no just reason for delay, this shall be a final appealable order.” Id.

       We, therefore, conclude that the Indiana Court of Appeals has jurisdiction over

       this appeal as it is an appeal from a final judgment of a circuit, superior,

       probate, or county court. See App. R. 5(A). Rostankovski’s cross-appeal is

       denied.


                                         II.     Trial Court’s Order
[12]   The City argues that the trial court erred when it affirmed the City Court’s

       ruling that dismissed the complaint for a zoning ordinance violation against

       Rostankovski. Because the issue presented in this case is a question of law, our

       standard of review is de novo. Thomas v. Ind. Bureau of Motor Vehicles, 979

       N.E.2d 171 (Ind. Ct. App. 2012), trans. denied. We will reverse only if an error

       of law is demonstrated. Id. at 171-72.


[13]   The City contends that it was error for the trial court to affirm the City Court’s

       order, which dismissed the complaint on the basis of laches, because laches is

       not a defense to a municipality’s action to enforce its zoning ordinances. The

       City asserts that it was error for the trial court to find that the City had waived

       the argument that laches cannot be a defense because the City did raise that

       contention in its motion to correct error filed with the City Court. Instead, the

       City asserts that it was Rostankovski, and not the City, that had the duty to

       raise laches as an affirmative defense, and he waived the issue of laches because


       Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020           Page 7 of 10
       he never specifically pleaded the defense in his motion to dismiss. The City

       argues that the trial court actually raised the issue of laches sua sponte in its

       order dismissing the City’s complaint to enforce the zoning ordinance, which

       was error.


[14]   “Laches is an equitable defense that may be raised to stop a person from

       asserting a claim she would normally be entitled to assert.” Angel v. Powelson,

       977 N.E.2d 434, 445 (Ind. Ct. App. 2012). “‘Laches is neglect for an

       unreasonable length of time, under circumstances permitting diligence, to do

       what in law should have been done.’” In re Paternity of P.W.J., 846 N.E.2d 752,

       759 (Ind. Ct. App. 2006) (quoting Knaus v. York, 586 N.E.2d 909, 914 (Ind. Ct.

       App. 1992)), clarified on reh’g, 850 N.E.2d 1024 (2006). Laches is an affirmative

       defense that must be specifically pleaded, or it is waived. U.S. Research

       Consultants, Inc. v. Cty. of Lake, 89 N.E.3d 1076, 1085 (Ind. Ct. App. 2017), trans.

       denied. However, it is well established that laches is not a defense to a

       municipality’s action to enforce its zoning ordinances. See, e.g., Metro. Dev.

       Comm’n of Marion Cty. v. Schroeder, 727 N.E.2d 742, 748 (Ind. Ct. App. 2000),

       trans. denied; Hannon v. Metro. Dev. Comm’n of Marion Cty., 685 N.E.2d 1075,

       1080 (Ind. Ct. App. 1997); Harbour Town Assocs., Ltd. v. City of Noblesville, 540

       N.E.2d 1283, 1287 (Ind. Ct. App. 1989).


[15]   In the present case, after the City filed a complaint against Rostankovski for a

       violation of the City’s zoning ordinance, Rostankovski filed a motion to dismiss

       the complaint. However, nowhere in the motion did Rostankovski specifically

       plead the affirmative defense of laches. See Appellant’s App. Vol. 2 at 38-41. The

       Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020            Page 8 of 10
       defense of laches was not raised by either party and was not litigated at the City

       Court hearing. Laches was not mentioned until the City Court made the

       following concluding remarks after the close of evidence:


               I think you really got two things at issue. One is the deck is in
               violation of the zoning ordinances. And two, if it is in violation
               of the zoning ordinances, is the City able to enforce it or is the
               City barred for some reason from enforcing it. I can answer the
               first question, I’m not sure about the second.


               First one is, as constructed this deck does violate the three-foot
               setback. I’m not prepared to answer at this time or decide at this
               time as to whether an estoppel or latches [sic] or something of
               that nature would preclude the City from enforcing it at this time.


               Therefore, I’m going to take this under advisement.


       Id. at 34-35. Shortly thereafter, the City Court issued its ruling dismissing the

       City’s complaint due to laches. Id. at 12. After this ruling, the City filed its

       motion to correct error, arguing that it was error for the City Court to dismiss

       for laches because laches cannot be a defense to a municipality’s action to

       enforce its zoning ordinances, and that motion was denied. Id. at 13-17. In its

       petition to the trial court for review of the City Court’s ruling, the City again

       reiterated its argument that it was error to dismiss the complaint for laches

       because it is not a defense to a municipality’s action to enforce its zoning

       ordinances. Id. at 8-11.


[16]   Based on our review of the record, we conclude that the trial court erred when it

       affirmed the City Court’s ruling dismissing the City’s complaint. The law is

       Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020             Page 9 of 10
clear that laches cannot be a defense to municipality’s action to enforce its

zoning ordinances, which was the basis of the City’s complaint. Perhaps,

knowing this to be true, Rostankovski did not specifically plead laches as an

affirmative defense in his motion to dismiss filed with the City Court and did

not argue it at the hearing on the motion. The defense was not raised until the

City Court sua sponte mentioned it in it closing remarks and then based its

dismissal of the complaint on the same. The City, at its first opportunity to

raise it, argued in its motion to correct error that laches could not be a defense

to the action at issue. We, therefore, do not agree with the trial court that the

City waived the issue because it was not raised to the City Court. The City

Court erred in sua sponte basing its dismissal of the complaint on laches, and

the trial court erred in affirming the City Court’s erroneous ruling. We reverse

the trial court’s order and remand for further proceedings.


Reversed and remanded.


Najam, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion 19A-OV-2609 | May 27, 2020          Page 10 of 10
