A TTORNEY FOR A PPELLANT T OWN A TTORNEYS FOR A PPELLEE

OF E LLETTSVILLE , I NDIANA P LAN C OMMISSION Michael Rabinowitch Darla S. Brown Maureen E. Ward Sturgeon & Brown, P.C. Wooden McLaughlin LLP Bloomington, Indiana Indianapolis, Indiana

A TTORNEYS FOR A PPELLANT R ICHLAND C ONVENIENCE S TORE P ARTNERS , LLC Andrew P. Sheff Sheff Law Office Indianapolis, Indiana

Carina M. de la Torre The de la Torre Law Office LLC Indianap olis, Indiana

______________________________________________________________________________



# In the Indiana Supreme Court

_________________________________ No. 53S01

- 1709

- PL

- 612

T OWN OF E LLETTSVILLE , I NDIANA P LAN C OMMISSION AND R ICHLAND C ONVENIENCE S TORE P ARTNERS , LLC, Appellant s ( Respondents below),

v.

J OSEPH V. D E S PIRITO , Appellee ( Petitioner b elow )

.

_________________________________ Appeal from the M onroe Circuit Court , No. 53C01

- 1509

- PL

- 1714

The Honorable E. Michael Hoff , Judge

_________________________________ On Petition t o Transfer from the Indiana Court of Appeals, No. 53A01

- 1611

- PL

- 2559

_________________________________

December 12 , 2017

Per Curiam.2

Richland Convenience Store Partners, LLC asked the Town of Ellettsville ’s P lan Commission to amend a subdivision plat so Richland could move a utility easement on its property.
The C ommission approved Richland’s request , over the objection of Richland’s ne ighbor, 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 C ommission’s decision
, pending further court order. Richland and the Commission answered the complaint.

All parties sought summary judgment. A n “Order on Judicial Review” (“Order”) entered October 19, 2016
, granted DeSpirito’s motion for summary judgment and denied the other s’
motions

. The O rder conclud ed the C ommission erred in approving relocation of the easement and
ordered the case remanded t o the Commission with instructions to dismiss Richland’s request for plat amendment unless DeSpirito joins it. The O rder stated the preliminary injunction remains in
effect , but the O rder was silent on DeSpirito’s request for damages and a perm anent injunc tion

. I d

. at 16.

Richland and the Commission (collectively, “Appellants”) filed notices of appeal, purporting to appeal from a f inal j udgment. The Court of Appeals rightly questio ned whether a final judgment has been entered and not ed 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. D ep’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 he ard oral argument, we address appellate jurisdiction differently. Nothing in D.J. eliminated or relaxed the requir ements 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 record3

on the chrono logical 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. Th ere, the trial court found the children to be CHINS, the parents then filed their separate notices of appeal
, the court thereafter

enter ed its disposition al 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, th e notice of completion of clerk’s r ecord 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 t o 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 i n 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 O rder 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 th is case’s particular circumstances
, w e elect to stay this appeal’s consideration

. We remand th is case to the trial court to de cide , 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 T rial Rule 54(B) as to fewer than all the claims or parties, or under T rial Rule 56(C) as to fewer than all the issues, claims, or partie s. See App. R. 2(H)(2). After th at de cision, t he Appellants shall promptly file a supplemental appendix including

c opies of the updated CCS and any new order (s) entered by the court on remand. We caution,4

though
, that i n the overwhelming majority of cases, the proper course for an appellate court to take
where it finds app ellate 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)

.

N otwithstanding 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 bef ore exercising the
limited jurisdiction this remand allows. G ive n th is 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.