ATTORNEY FOR APPELLANT TOWN ATTORNEYS FOR APPELLEE

OF ELLETTSVILLE, INDIANA PLAN COMMISSION Michael Rabinowitch

Darla S. Brown Maureen E. Ward

Sturgeon & Brown, P.C. Wooden McLaughlin LLP

Bloomington, Indiana Indianapolis, Indiana

ATTORNEYS FOR APPELLANT RICHLAND 

CONVENIENCE STORE PARTNERS, LLC

Andrew P. Sheff

Sheff Law Office

Indianapolis, Indiana

Carina M. de la Torre

The de la Torre Law Office LLC 

Indianapolis, Indiana 

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 53S01-1709-PL-612

TOWN OF ELLETTSVILLE, INDIANA PLAN

COMMISSION AND RICHLAND CONVENIENCE

STORE PARTNERS, LLC,

Appellants (Respondents below), 

 v.

JOSEPH V. DESPIRITO,

Appellee (Petitioner below). 

_________________________________

Appeal from the Monroe Circuit Court, No. 53C01-1509-PL-1714

The Honorable E. Michael Hoff, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-1611-PL-2559

_________________________________

December 12, 2017

Per Curiam.
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Richland Convenience Store Partners, LLC asked the Town of Ellettsville’s Plan 

Commission to amend a subdivision plat so Richland could move a utility easement on its property.

The Commission approved Richland’s request, over the objection of Richland’s neighbor, Joseph 

V. DeSpirito, whose property the easement benefits. DeSpirito then sued for judicial review, 

declaratory relief and associated damages (attorney’s fees and costs), and preliminary and 

permanent injunctive relief. Appellants’ App. Vol. II at 17-24. An agreed preliminary injunction 

was entered barring Richland from taking any action in reliance on the Commission’s decision, 

pending further court order. Richland and the Commission answered the complaint. 

All parties sought summary judgment. An “Order on Judicial Review” (“Order”) entered 

October 19, 2016, granted DeSpirito’s motion for summary judgment and denied the others’

motions. The Order concluded the Commission erred in approving relocation of the easement and 

ordered the case remanded to the Commission with instructions to dismiss Richland’s request for 

plat amendment unless DeSpirito joins it. The Order stated the preliminary injunction remains in 

effect, but the Order was silent on DeSpirito’s request for damages and a permanent injunction. 

Id. at 16.

 

Richland and the Commission (collectively, “Appellants”) filed notices of appeal, 

purporting to appeal from a final judgment. The Court of Appeals rightly questioned whether a 

final judgment has been entered and noted the preliminary nature of the injunction entered. Town 

of Ellettsville v. DeSpirito, 78 N.E.3d 666, 672 n.3 (Ind. Ct. App. 2017), vacated. But it added, 

“[B]ecause our supreme court has significantly relaxed procedural requirements in this regard, see

In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574 (Ind. 2017) (addressing merits of premature 

appeal), we do not consider the issue further.” Id. It went on to reverse the trial court and remand 

with instructions to enter summary judgment for the Appellants, reinstate the Commission’s 

decision, and conduct further proceedings consistent with its opinion. Id. at 680.

Having granted transfer and heard oral argument, we address appellate jurisdiction

differently. Nothing in D.J. eliminated or relaxed the requirements for appellate jurisdiction. It 

reaffirmed that the prerequisites for appellate jurisdiction are (1) entry of an appealable order by 

the trial court and (2) the trial court clerk’s entry of the notice of completion of the clerk’s record 
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on the chronological case summary (“CCS”). 68 N.E.3d at 578. D.J. explained that in a child in

need of services (“CHINS”) case, the CHINS determination is not a final judgment and that finality 

does not occur until the court enters a dispositional order. Id. at 576. There, the trial court found 

the children to be CHINS, the parents then filed their separate notices of appeal, the court thereafter 

entered its dispositional order, and the clerk later filed the notice of completion of the clerk’s 

record. Id. at 577. Appellate jurisdiction was secure in D.J. because the trial court entered its 

dispositional order—a final judgment—before the clerk entered the notice of completion of clerk’s 

record on the CCS. Under Appellate Rule 8, the notice of completion of clerk’s record is the 

document having jurisdictional significance, depriving the trial court of jurisdiction and conferring 

jurisdiction in the appellate court. Although the parents had already filed their notices of appeal, 

the trial court still had jurisdiction to enter a final judgment because the clerk had not yet entered 

the notice of completion of clerk’s record on the CCS, and we concluded the parents’ “premature 

notices of appeal did not deprive the Court of Appeals of jurisdiction to hear the appeal.” Id. at 

581.

Here, unlike in D.J., the record on appeal shows no final judgment. Indiana Appellate Rule 

2(H) defines a judgment as a “final judgment” if, among other things, it disposes of all claims as 

to all parties or the trial court expressly determines in writing that there is no just reason for delay 

and expressly directs entry of judgment under Indiana Trial Rule 54(B) as to fewer than all the 

claims or parties, or under Indiana Trial Rule 56(C) as to fewer than all the issues, claims, or 

parties. The Order left the preliminary injunction in place, did not rule on DeSpirito’s request for 

damages or a permanent injunction, and did not determine there is no just reason for delay and 

expressly direct entry of judgment on less than all of the issues, claims, or parties. 

For judicial economy under this case’s particular circumstances, we elect to stay this 

appeal’s consideration. We remand this case to the trial court to decide, in its discretion but within 

the next 90 days, whether to (1) expressly determine in writing that there is no just reason for delay 

and (2) expressly direct entry of judgment under Trial Rule 54(B) as to fewer than all the claims 

or parties, or under Trial Rule 56(C) as to fewer than all the issues, claims, or parties. See App. R. 

2(H)(2). After that decision, the Appellants shall promptly file a supplemental appendix including

copies of the updated CCS and any new order(s) entered by the court on remand. We caution, 
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though, that in the overwhelming majority of cases, the proper course for an appellate court to take 

where it finds appellate jurisdiction lacking is simply to dismiss the appeal. See, e.g., In re Paternity 

of C.J.A., 12 N.E.3d 876 (Ind. 2014); Ramsey v. Moore, 959 N.E.2d 246 (Ind. 2012). 

Notwithstanding Appellate Rule 65(E), this opinion is effective immediately, and the trial 

court need not await a certification of this opinion by the Clerk of Courts before exercising the

limited jurisdiction this remand allows. Given this remand’s interlocutory nature, no petitions for 

rehearing under Appellate Rule 54(A)(1) shall be filed on this opinion. See App. R. 1 (permitting 

deviation from Appellate Rules on Court’s motion). 

All Justices concur.