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Tuesday, October 11, 2016

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (1):

In Allen County Plan Commission, et al. v. Olde Canal Place Association, et al., a 9-page opinion, Judge Altice writes:

MRK II, LLC and Max R. Kendall (collectively, MRK) and t he Allen County Plan Commission (the Commission) appeal from the trial court’s order granting Canal Place Association and its members (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 discre tion in granting relief because OCPA cannot establish a meritorious claim as required by T.R. 60(B)(1).

We reverse and remand with instructions. * * *

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.

NFP civil decisions today (2):

Keith A. Eenigenburg and Sandra Eenigenburg v. Joan Andreotti (mem. dec.)

Patricia A. Smith v. Kelly J. Fehrenbacher, M.D. and David J. Weaver, M.D. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on October 11, 2016 01:38 PM
Posted to Ind. App.Ct. Decisions