      MEMORANDUM DECISION
                                                                           May 13 2015, 10:04 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                         Richard A. Butler
      Lawrenceburg, Indiana                                    Jessica L. Butler
                                                               Lawrenceburg, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      City of Lawrenceburg, Indiana                            May 13, 2015
      Board of Public Works & Safety,                          Court of Appeals Case No.
                                                               15A01-1410-PL-463
      Appellant-Defendant,
                                                               Appeal from the Dearborn Superior
              v.                                               Court

                                                               The Honorable James B. Morris,
      Douglas Taylor,                                          Special Judge
      Appellee-Plaintiff.                                      Cause No. 15D02-1310-PL-67




      Najam, Judge.


                                         Statement of the Case
[1]   The City of Lawrenceburg Board of Public Works and Safety (“the Board”)

      appeals the trial court’s dismissal of Douglas Taylor’s amended complaint

      without prejudice. The Board contends on appeal that under Trial Rule 41(A)

      the dismissal of Taylor’s amended complaint was an adjudication on the merits
      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015            Page 1 of 7
      and, as such, that the trial court was required as a matter of law to dismiss his

      amended complaint with prejudice. The Board also contends in the alternative

      that the trial court abused its discretion when it dismissed Taylor’s amended

      complaint without prejudice. We need not address the Board’s contentions but

      consider only the following dispositive issue: whether the Board has standing

      to pursue this appeal. We dismiss.


                                 Facts and Procedural History
[2]   On October 25, 2013, Taylor filed his complaint against the Board after it

      terminated his employment with the Lawrenceburg Police Department. In the

      caption and body of his complaint, Taylor labeled the Board as “City of

      Lawrenceburg, Indiana Board of Public Works and Safety.” Appellant’s App.

      at 6. On December 5, the Board, adopting Taylor’s label for it in its own

      caption, moved to dismiss Taylor’s complaint with prejudice because Taylor

      had “failed to name the real party in interest.” Id. at 9. On July 16, 2014,

      Taylor filed his response to the motion to dismiss and “agree[d] that he ha[d]

      failed to name the real party in interest,” which should have been “the City of

      Lawrenceburg rather than the Defendant Board of Public Works and Safety.”

      Id. at 11. As such, Taylor agreed that the Board’s “Motion to Dismiss should

      be granted,” albeit “without prejudice.” Id. at 11. That same day, the court

      granted the motion to dismiss without prejudice. The court’s caption for that

      order identified the Board as “City of Lawrenceburg Indiana Board of Public

      Works.” Id. at 12.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015   Page 2 of 7
[3]   On July 25, 2014, Taylor filed his amended complaint against the “City of

      Lawrenceburg” (“the City”). Id. at 13. Taylor did not name the Board as a

      party in his amended complaint. On July 30, the City, adopting Taylor’s label

      for it in its caption, filed a motion to dismiss the amended complaint on the

      grounds that the amended complaint was untimely. On August 6, Taylor

      agreed to voluntarily dismiss his complaint pursuant to Indiana Trial Rule

      41(A)(1)(a). On October 3, the court granted the City’s motion to dismiss

      “without prejudice” (“the October 3rd Order”). Id. at 5. The caption of that

      order erroneously named the Board rather than the City as the defendant.


[4]   On October 28, the Board filed a notice of appeal from the October 3rd Order.

      In its notice of appeal, the Board identified itself using the label from Taylor’s

      original complaint. In particular, the notice of appeal identifies one appellant,

      which it labels as the “City of Lawrenceburg, Indiana Board of Public Works.”

      Notice of Appeal at 1.


[5]   On March 4, 2015, Taylor moved to dismiss the Board’s appeal on the grounds

      that the Board was not a party to the judgment being appealed and, therefore, it

      lacked standing to pursue the appeal. In response, counsel for the Board stated

      that her “appearance was . . . for both the City . . . and the Board . . . .”

      Appellant’s Verified Response to Motion to Dismiss at 1. In support of this

      assertion, counsel stated that “[b]oth [the City and the Board] are listed in the

      notice [of appeal], separated by a comma to denote they are separate entities.”

      Id. at 2. Counsel also stated that, following the dismissal of the original

      complaint, “the cause number remained the same, the Board remained listed as

      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015   Page 3 of 7
      a party in the [CCS], and the trial court continued to include the Board in its

      captions . . . .” Id. Our motions panel denied Taylor’s motion to dismiss on

      March 27.


                                     Discussion and Decision
[6]   The Board asserts that the trial court erred when it dismissed Taylor’s amended

      complaint without prejudice. But, on cross-appeal, Taylor asserts that our

      motions panel erred when it denied his motion to dismiss this appeal. Because

      Taylor’s argument raises a question of our jurisdiction, we address it first.

      Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 2004), trans.

      denied. As we have explained:


              it is well established that a writing panel may reconsider a ruling
              by the motions panel. Miller v. Hague Ins. Agency, Inc., 871
              N.E.2d 406, 407 (Ind. Ct. App. 2007). While we are reluctant to
              overrule orders decided by the motions panel, this court has
              inherent authority to reconsider any decision while an appeal
              remains in fieri. Id. This is especially true where, as here, after
              considering a more complete record than was available to the
              motions panel, and the appellate briefs, we have determined
              there is clear authority establishing that the motions panel erred.
              See Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind. Ct. App.
              2006).


      Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011).


[7]   Taylor asserts that the Board lacks standing to pursue this appeal. We have

      explained standing as follows:



      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015   Page 4 of 7
              A would-be party must first have standing to seek relief from the
              courts. Standing is defined as having a “sufficient stake in an
              otherwise justiciable controversy.” Ind. Civil Rights Comm’n v.
              Indianapolis Newspapers, Inc., 716 N.E.2d 943, 945 (Ind. 1999).
              Like the real-party-in-interest requirement, the point of the
              standing requirement is to insure that the party before the court
              has a substantive right to enforce the claim that is being made in
              the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind. 1995).
              Standing is “a significant restraint on the ability of Indiana courts
              to act, as it denies the courts any jurisdiction absent an actual
              injured party participating in the case.” Id. at 488. Moreover:

                      The standing requirement mandates that courts act in real
                      cases, and eschew action when called upon to engage only
                      in abstract speculation. An actual dispute involving
                      those harmed is what confers jurisdiction upon the
                      judiciary: For the disposition of cases and
                      controversies, the Court requires adverse parties
                      before it. Standing focuses generally upon the
                      question whether the complaining party is the
                      proper person to invoke the Court’s power.
                      However, more fundamentally, standing is a
                      restraint upon this Court’s exercise of its jurisdiction
                      in that we cannot proceed where there is no demonstrable
                      injury to the complainant before us.

              Id. (first emphasis added; quotation omitted). In order to have
              standing, the challenging party must show adequate injury or the
              immediate danger of sustaining some injury. Ind. Civil Rights
              Comm’n, 716 N.E.2d at 945 (citing Pence, 652 N.E.2d at 488).


      Id.


[8]   We agree with Taylor that the Board lacks standing to pursue this appeal. The

      Board was not a party to Taylor’s amended complaint and, therefore, could not

      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015   Page 5 of 7
      have been a party to the October 3rd Order, which dismissed the amended

      complaint. And we reject the Board’s assertion that the caption on the October

      3rd Order is binding. “[W]e do not elevate form over substance by refusing to

      ignore what the conduct tells us.” Old Nat’l Bancorp v. Hanover Coll., 15 N.E.3d

      574, 578 (Ind. Ct. App. 2014). Here, the substance of the parties’ conduct

      before the trial court makes clear that the Board was a party to the original

      complaint, but the Board moved to dismiss that complaint for failure to name a

      real party in interest. Taylor conceded this point and the trial court dismissed

      his original complaint without prejudice. Taylor then filed an amended

      complaint in which he named only the City, not the Board, as a party. The

      proceedings before the trial court make clear that the trial court’s caption on the

      October 3rd Order was simply an error in form.


[9]   Indeed, the Board cannot both assert in the trial court that it is not a real party

      in interest yet assert in this court that it has standing to pursue this appeal. In

      other words, we agree with Taylor that the Board, having previously claimed

      that it was not a real party in interest and having been dismissed upon its own

      motion on those grounds, is not a party of record in Taylor’s subsequent action

      against the City in the trial court. Thus, the Board is judicially estopped from

      bringing this appeal from the October 3rd order. See, e.g., Morgan Cnty. Hosp. v.

      Union, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008) (“Judicial

      estoppel . . . prevent[s] a litigant from asserting a position that is inconsistent

      with one asserted in the same or a previous proceeding.”), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-PL-463| May 13, 2015   Page 6 of 7
[10]   We also reject the Board’s argument that the placement of the comma in its

       name in its notice of appeal demonstrates that it is really both the City and the

       Board, not just the Board. Again, in his original complaint, Taylor named only

       the Board as the defendant, and he labeled the Board as “City of Lawrenceburg,

       Indiana Board of Public Works and Safety.” Appellant’s App. at 6. In both its

       December 5th motion to dismiss and the notice of appeal, the Board adopted

       Taylor’s label for it. The Board did not suggest to the trial court that the

       placement of the comma in this label represented two entities rather than one.

       Moreover, the Board’s new argument on appeal would require this court to

       label the Board as the “Indiana Board of Public Works and Safety.” This is

       unquestionably not the Board’s title. As such, we reject this argument.


[11]   In sum, we agree with Taylor that the Board is the only appellant in this appeal

       and that the Board lacks standing to pursue the appeal. As standing is a

       prerequisite to this court’s jurisdiction, we dismiss this appeal.


[12]   Dismissed.


       Baker, J., and Friedlander, J., concur.




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