Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016 Page 1 of 9

ATTORNEYS FOR APPELLANTS

Patrick R. Hess

Brian C. Heck

Fort Wayne, Indiana

Robert W. Eherenman

Andrew L. Teel

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES

Cathleen M. Shrader

Michael H. Michmerhuizen

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Allen County Plan Commission,

et al.

Appellants-Respondents,

v.

Olde Canal Place Association, et 

al.

Appellees-Petitioners.

October 11, 2016

Court of Appeals Case No.

02A03-1412-PL-441

Appeal from the Allen Superior 

Court

The Honorable Stanley A. Levine, 

Judge

Trial Court Cause No.

02D03-1408-PL-300

Altice, Judge.

Case Summary

[1] MRK II, LLC and Max R. Kendall (collectively, MRK) and the Allen County 

Plan Commission (the Commission) appeal from the trial court’s order granting 
Court of Appeals of Indiana | Opinion 02A03-1412-PL-441 | October 11, 2016 Page 2 of 9

Olde Canal Place Association and its members1(collectively, OCPA) relief 

from judgment under Ind. Trial Rule 60(B)(1). On appeal, MRK and the 

Commission argue that the trial court abused its discretion in granting relief 

because OCPA cannot establish a meritorious claim as required by T.R. 

60(B)(1). 

[2] We reverse and remand with instructions. 

Facts & Procedural History

[3] On June 4, 2014, MRK filed a petition to rezone a parcel of property located in 

Allen County from C2/Limited to Commercial to R3/Multiple Family 

Residential. At the same time, MRK also filed an application for approval of a 

primary development plan for the construction of a multi-family residential 

complex on the property. In conjunction with the development plan, MRK 

requested waivers of three applicable design and development standards, 

including the maximum height standard for primary buildings in an R3 district. 

The Commission held a public hearing on MRK’s applications on July 10, 

2014, at which OCPA appeared in opposition. On July 17, 2014, the 

Commission approved MRK’s applications. 

 

1 These members comprise Physicians Health Plan of Northern Indiana, Inc., Thunderbolt Development, 

LLC, Indiana Wesleyan University (Marion College), Summit Hotel Properties, LLC, BSA Properties, LLC, 

and Anthony Wayne Area Council, Inc.
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[4] On August 18, 2014, OCPA filed a petition for judicial review challenging the 

Commission’s decision. On September 16, 2014, OCPA filed a motion for 

extension of time to file the record of the proceedings before the Commission 

(the Record). The same day, the trial court granted the motion and extended 

the filing deadline to November 17, 2014. The November 17 deadline passed 

without OCPA filing the Record or requesting another extension of time.

[5] On November 21, 2014, MRK filed a motion to dismiss due to OCPA’s failure 

to timely file the Record. OCPA filed the Record on November 25, 2014, and 

MRK responded by filing a motion to strike. On December 8, 2014, OCPA

filed their response to MRK’s motion to dismiss, which also contained an 

alternative motion to set aside any prospective dismissal pursuant to T.R. 

60(B)(1). At the same time, OCPA filed the affidavit of Robert Westfall, one of 

its attorneys. In the affidavit, Attorney Westfall explained that he “mistakenly 

thought that because the . . . Commission would be preparing the Record 

internally, it would also file same with the court.”2 Appellant’s Appendix at 89.

[6] On December 11, 2014, the trial court held a hearing on MRK’s motion to 

dismiss. At the hearing, counsel for OCPA conceded that under existing case 

 

2 Because the Commission and MRK do not challenge the trial court’s finding that the failure to timely file 

the Record was the result of mistake, surprise, or excusable neglect, we need not detail the communications 

between the attorneys that contributed to Attorney Westfall’s misunderstanding. For our purposes, it suffices 

to note that OCPA does not suggest that counsel for the Commission acted in bad faith or intentionally 

misled Attorney Westfall in any way. See Appellant’s Appendix at 15, n.2 (explaining that OCPA “does not 

mean to suggest that counsel for the . . . Commission, a respected member of the Bar, did anything wrong or 

untoward”). 
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law, the trial court was required to dismiss the petition for judicial review due to 

the failure to timely file the Record, which the trial court did. After the 

dismissal, however, OCPA asked the trial court to set aside the dismissal under 

T.R. 60(B)(1). Specifically, OCPA argued that the failure to timely file the 

agency record was the result of mistake, and that OCPA had a meritorious 

claim because it believed the Commission’s decision was arbitrary, capricious, 

and not supported by substantial evidence. MRK opposed the request, arguing 

that even if the dismissal was set aside, the case would have to be dismissed

again because the trial court cannot accept a belatedly filed Record. 

Nevertheless, the trial court granted the motion to set aside the dismissal, and 

MRK renewed its motion to strike the Record. The trial court directed MRK to 

file an amended motion to strike within a week of the hearing. Instead of doing 

so, MRK filed its notice of appeal four days later.3 This appeal ensued. 

Discussion & Decision

[7] In their joint brief, MRK and the Commission argue that the trial court abused 

its discretion by granting OCPA’s T.R. 60(B) motion for relief from judgment. 

T.R. 60(B) provides a mechanism by which a party may obtain relief from the 

entry of a final judgment. Laflamme v. Goodwin, 911 N.E.2d 660, 664 (Ind. Ct. 

App. 2009). “A motion made under T.R. 60(B) is addressed to the equitable 

 

3 We are unpersuaded by OCPA’s argument that this appeal is somehow premature because MRK did not 

file an amended motion to strike the Record as directed by the trial court. T.R. 60(C) provides that rulings 

granting or denying relief under T.R. 60(B) are final and appealable. Accordingly, this appeal is properly 

before us. 
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discretion of the trial court, and we will reverse only upon an abuse of that 

discretion.” Brimhall v. Brewster, 864 N.E.2d 1148, 1152-53 (Ind. Ct. App. 

2007), trans. denied. An abuse of discretion occurs when the judgment is clearly 

against the logic and effect of the facts and inferences supporting the judgment. 

Breneman v. Slusher, 768 N.E.2d 451, 461 (Ind. Ct. App. 2002), trans. denied. 

The movant bears the burden of establishing grounds for relief under T.R. 

60(B). Brimhall, 864 N.E.2d at 1153.

[8] The trial court granted OCPA’s motion for relief from judgment pursuant to 

T.R. 60(B)(1), which provides that a trial court may relieve a party from a 

judgment where the party establishes “mistake, surprise, or excusable 

neglect[,]” provided that the party files its motion within one year of the entry 

of judgment and alleges a meritorious claim or defense. Huntington Nat. Bank v. 

Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015). To establish a meritorious 

claim or defense, a movant must show “that vacating the judgment will not be 

an empty exercise.” Welton v. Midland Funding, LLC, 17 N.E.3d 353, 355 (Ind. 

Ct. App. 2014) (quoting Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 

65, 73 (Ind. 2006)). 

[9] OCPA’s motion for relief from judgment was filed well within the one-year 

timeframe applicable to T.R. 60(B)(1) motions, and MRK and the Commission 

do not challenge the trial court’s finding that the failure to timely file the Record
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was the result of mistake, surprise, or excusable neglect.4 Instead, they argue 

that OCPA is unable to establish a meritorious claim because it cannot 

belatedly file the Record, and under the bright-line rule set forth in First Am. 

Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014), amended on reh’g, 27 

N.E.3d 768, and Teaching Our Posterity Success, Inc. v. Ind. Dep’t of Educ., 20 

N.E.3d 149 (Ind. 2014) [hereinafter TOPS], the absence of the Record

automatically results in the dismissal of OCPA’s petition for judicial review.5 

Thus, according to MRK and the Commission, vacating the the dismissal of 

OCPA’s petition was an empty exercise because OCPA cannot cure the 

deficiency that resulted in that dismissal. We agree. 

[10] Indiana Code sections 37-7-4-1600 through -1616, known as the 1600 Series, 

“establishes the exclusive means for judicial review of zoning decisions[.]” Ind. 

Code § 36-7-4-1601(a). The provision of the 1600 Series relevant to the case 

before us provides that “[w]ithin thirty (30) days after the filing of the petition, 

or within further time allowed by the court, the petitioner shall transmit to the 

court the original or a certified copy of the board record for judicial review of 

 

4

In their appellants’ brief, MRK and the Commission expressly state that they “are not challenging whether 

the untimely Record was the result of mistake, surprise, or excusable neglect.” Appellant’s Brief at 12. In their 

reply brief, however, they argue that OCPA’s mistake was one of law, not fact, rendering T.R. 60(B)(1) 

inapplicable. We confine our analysis to whether OCPA established a meritorious claim as required by T.R. 

60(B)(1). 

5 MRK and the Commission also argue that the bright-line rule set forth in Robertson and TOPS renders T.R. 

60(B)(1) inapplicable in cases where a petitioner for judicial review of an administrative decision fails to 

timely file the record of the administrative proceedings, and that the trial court therefore abused its discretion 

by even considering OCPA’s motion for relief from judgment. We do not address this argument because 

even assuming arguendo that T.R. 60(B)(1) is applicable, we conclude that a party who fails to timely file the 

record cannot establish a meritorious claim. 
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the zoning decision[.]” I.C. § 36-7-4-1613(a). This section further provides that 

“[f]ailure to file the record within the time permitted by this subsection, 

including any extension period ordered by the court, is cause for dismissal of 

the petition for review by the court, on its own motion, or on petition of any 

party of record to the proceeding.” I.C. § 36-7-4-1613(b).

[11] In Robertson and TOPS, our Supreme Court interpreted identical language

appearing in the Administrative Orders and Procedures Act (AOPA)

6 and set 

forth a bright-line rule. Specifically, the Court held that the statutory language 

makes dismissal mandatory when the agency record is not timely filed. TOPS, 

20 N.E.3d at 155 (holding that “a petitioner for review cannot receive 

consideration of its petition where the statutorily-defined agency record has not 

been filed”); Robertson, 19 N.E.3d at 762-63 (same). Additionally, in TOPS, the

Court reaffirmed its prior holding that “the relevant provisions of AOPA do not 

permit untimely filing of the agency record or nunc pro tunc extensions of the 

filing deadline.” TOPS, 20 N.E.3d at 153 (quoting Ind. Family & Social Servs. 

Admin. v. Meyer, 927 N.E.2d 367, 372 (Ind. 2010)).

 

6

 This court has observed that “[w]hen the General Assembly amended the Zoning Enabling Act in 2011, it 

brought the judicial review concepts from the [AOPA] into the zoning arena.” Dunmoyer v. Wells Cnty., Ind. 

Area Plan Comm’n, 32 N.E.3d 785, 786 n.9 (Ind. Ct. App. 2015). Accordingly, the judicial review provisions 

applicable to zoning decisions “are interpreted in the same manner as the relevant provisions of the AOPA 

and rely on case law established under the AOPA.” Id. The parties agree that the rules set forth in TOPS and 

Robertson apply with equal force in zoning matters. See Town of Pittsboro Advisory Plan Comm’n v. Ark Park, 

LLC, 26 N.E.3d 110, 117-19 (Ind. Ct. App. 2015) (relying on TOPS and Robertson to conclude that a 

petitioner who failed to timely file the board record was not entitled to judicial review of a zoning decision). 
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[12] The parties all agree that the trial court was required to dismiss OCPA’s 

petition for judicial review under the bright-line rule set forth in TOPS and 

Robertson. OCPA, however, asserts that the dismissal was properly set aside 

pursuant to T.R. 60(B)(1), while MRK and the Commission argue that such 

relief was improper because OCPA cannot establish a meritorious claim. In 

support of their argument that setting aside that dismissal was an empty 

exercise, MRK and the Commission direct our attention to Welton, which 

involved the collection of an unpaid credit card debt. 17 N.E.3d at 354. In that 

case, summary judgment was granted in the creditor’s favor after Welton failed 

to file a response. Shortly thereafter, Welton filed a T.R. 60(B)(1) motion for 

relief from judgment, arguing that the failure to file a timely response was due 

to excusable neglect because her attorney had incorrectly calendared the 

response date. As for a meritorious defense, Welton asserted that the 

underlying debt had already been paid. The trial court denied Welton’s 

motion, and this court affirmed. In reaching its conclusion, this court 

recognized that a “bright-line rule” precludes the late filing of responses in 

opposition to a motion for summary judgment. Id. at 355. Accordingly, 

[e]ven if Welton’s motion for relief from judgment had been 

granted, Welton would not have been permitted to belatedly 

respond or designate evidence in opposition to Midland’s motion 

for summary judgment. Without a response, it is hard to 

imagine how the outcome of the summary judgment proceedings 

would have been different. Because vacating the judgment

would have been an empty exercise, Welton has not shown she 

has a meritorious defense to Midland’s motion for summary 

judgment.
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Id. at 356.

[13] We find Welton instructive. Because OCPA is not permitted to belatedly file the 

Record, the Record is not, and will never be, properly before the trial court. 

Without the Record, OCPA’s petition cannot be considered. See TOPS, 20 

N.E.3d at 155; Robertson, 19 N.E.3d at 762-63. The trial court’s order setting 

aside the dismissal of OCPA’s petition was therefore an empty exercise. 

Because OCPA cannot establish a meritorious claim, the trial court abused its 

discretion in granting the motion for relief from judgment. We therefore 

reverse and remand with instructions to vacate the trial court’s judgment setting 

aside its dismissal of OCPA’s petition for judicial review.

[14] Judgment reversed and remanded with instructions.

[15] Bailey, J. and Brown, J., concur.