Thomas L. Arflack v. Town of Chandler, Indiana Chandler Town Council and Town of Chandler Advisory Plan Commission

27 N.E.3d 297, 2015 Ind. App. LEXIS 116
CourtIndiana Court of Appeals
DecidedFebruary 26, 2015
Docket87A01-1406-PL-273
StatusPublished
Cited by8 cases

This text of 27 N.E.3d 297 (Thomas L. Arflack v. Town of Chandler, Indiana Chandler Town Council and Town of Chandler Advisory Plan Commission) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas L. Arflack v. Town of Chandler, Indiana Chandler Town Council and Town of Chandler Advisory Plan Commission, 27 N.E.3d 297, 2015 Ind. App. LEXIS 116 (Ind. Ct. App. 2015).

Opinions

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Thomas L. Ar-flack (Arflack), appeals the trial court’s grant of Appellees-Defendants’, Town of Chandler, Chandler Town Council, and Town of Chandler Advisory Plan Commission (collectively, Chandler), motion to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6).

[2] We reverse and remand for further proceedings.

ISSUES

[8] Arflack raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in dismissing Arflack’s complaint for failing to state a claim pursuant to Indiana Trial Rule 12(B)(6).

[4] In its brief, Chandler raises one issue, which we restate as: Whether the trial court’s order to dismiss was a final, appealable judgment.

FACTS AND PROCEDURAL HISTORY

[5] On January 7, 2013, Arflack was appointed by the Chandler Town Council (Town Council) to fill a vacant position as a citizen member of the Town of Chandler Advisory Plan Commission (Advisory Plan Commission) with an unexpired term ending on December 31, 2013. Arflack subsequently served the unexpired term for which he was appointed.

[6] During its regular meeting of January 6, 2014, the Town Council voted on a motion to reappoint Arflack to a new four-year term. The motion was approved by a vote of four members in favor and one member against. At the next regular meeting of the Advisory Plan Commission on January 12, 2014, Arflack was elected president by majority vote. Thereafter, on January 21, 2014, the Town Council unanimously recalled its vote approving Arflack to the Advisory Plan Commission. On March 17, 2014, the Town Council appointed Thomas Woolen as Arflack’s replacement.

[7] On April 4, 2014, Arflack filed a verified complaint for declaratory and in-junctive relief, asserting due process violations because the Town Council had failed to provide him with notice and seeking a declaration that the removal was invalid pursuant to Indiana Code section 34-14-1-2. Arflack further requested a permanent injunction directing that his appointment be recognized until the expiration of the current term. On April 23, 2014, Chandler filed a motion to dismiss Arflack’s complaint for failure to state a claim upon which relief can be granted in accordance with Indiana Trial Rule 12(B)(6). On May 13, 2014, the trial court held a hearing on Chandler’s motion and fifteen days later entered its order, summarily granting Chandler’s motion to dismiss and awarding Arflack “thirty days to file an amended complaint.” (Appellant’s App. p. 4).

[8] Arflack now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Jurisdiction

[9] Because Chandler presents us with a threshold procedural question, we will address its jurisdictional issue prior to proceeding to the merits of the appeal. Spe[301]*301cifically, Chandler contends that we did not acquire jurisdiction over this appeal, because the trial court’s grant of its motion to dismiss was not a final judgment. Because the trial court allowed Arflack thirty days to cure the defects of his verified complaint, Chandler maintains that the order does not fall within the purview of Indiana Appellate Rule 5.

[10] After the hearing on Chandler’s motion to dismiss for failure to state a claim upon which relief can be granted in accordance with Ind. T.R. 12(B)(6), the trial .court issued an order granting the motion to dismiss and awarding Arflack thirty days to cure the defects in his complaint. The clerk’s entry on the trial court’s docket merely reflects “[c]ourt enters Order on [Chandler’s] [m]otion to [d]imiss. (Granted). [Arflack] is give [sic] thirty days to file Amended Complaint.” (Appellant’s App. p. 3).

[11] A trial court’s entry sustaining a motion to dismiss without actually entering judgment thereon is insufficient to constitute a final judgment. Constantine v. City-County Council of Marion Cnty., 369 N.E.2d 636, 637 (Ind.1977). The appropriate procedure for adjudging a motion to dismiss pursuant to the Indiana Trial Rules is discussed by this court in Parrett v. Lebamoff, 179 Ind.App. 25, 383 N.E.2d 1107, 1109 (1979), where we stated:

In salient part [T.R. 12(B)(6) ] provides,
When a motion to dismiss is sustained for failure to state a claim under subsection (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten (10) days after service of notice of the court’s order sustaining the motion and thereafter with permission of the court pursuant to such rule.
Clearly this language does not contemplate the immediate entry of judgment upon the sustaining of such a motion. Rather it prescribes a procedure similar to the old practice on demurrers.

[12] In other words, the court should grant the motion, await the expiration of the ten-day period or the awarded discretionary time period—in this case, thirty days—and then adjudge the dismissal for the failure of the party to plead over. See id. In the alternative, the party against whom the motion is granted may advise the court of his election not to plead over and thus authorize entry of judgment. Id. Here, Arflack filed his notice of appeal prior to the expiration of the thirty days and final adjudication and without apprising the trial court of his decision not to plead over.

[13] However, it is equally clear that the only party harmed by the entry of judgment immediately upon the sustaining a T.R. 12(B)(6) motion is the party against whom the motion was directed. Id. If he in fact does not -wish to plead over—as clearly appears to be the case here—then no harm has occurred from the error. See id.

[14] In addition, we are mindful that Indiana Appellate Rule 66(B) provides that appeals should not be dismissed as a matter of right merely because the case was not finally disposed of in the court below. We may dismiss such an appeal, or in our discretion, we may suspend consideration until the necessary final disposition is made by the trial court, or we may decide the issues which have been adjudicated so long as they are properly severable. See Ind. Appellate Rule 66(B).

[15] In this case, we could remand to the. trial court with instructions to afford Arflack the opportunity to amend and then enter an appropriate judgment. Under the issues the parties seek to litigate and after being presented with fully briefed arguments, it appears that a re[302]*302mand would merely provide delay for the amount of time necessary to secure a procedurally correct entry. We hold that delay to be unnecessary, and that Arflack has waived the error arising from his failure to await the entry of the judgment of dismissal. Therefore, we deny Chandler’s request to dismiss this appeal for lack of jurisdiction, and we will address the merits of Arflack’s appeal.

II. Motion to Dismiss

[16] Arflack contends that the trial court erred in dismissing his complaint against Chandler pursuant to T.R. 12(B)(6).

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27 N.E.3d 297, 2015 Ind. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-l-arflack-v-town-of-chandler-indiana-chandler-town-council-and-indctapp-2015.