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Tuesday, September 29, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

For publication opinions today (2):

In Scott Ruse v. Mark Bleeke/Scott Ruse v. Terry Parrish, an 18-page opinion, Judge Kirsch writes:

In this consolidated appeal, Scott Ruse (“Ruse”) appeals after a bench trial from the trial court's judgment in favor of Mark Bleeke (“Bleeke”) in his action against Ruse alleging claims under the Indiana Crime Victim's Relief Act, fraud, and breach of fiduciary duty. Ruse also appeals after a bench trial from the trial court's judgment in favor of Terry Parrish (“Parrish”) in an action brought by Ruse against Parrish alleging breach of contract and criminal conversion. The broad issue presented for our review from these judgments is whether there is sufficient evidence to support the findings of fact and conclusions thereon issued in both judgments against Ruse. Parrish cross-appeals arguing that if we find the trial court erred during the bench trial, he should have been entitled to summary judgment. We affirm.
In Liberty Landowners Assn. v. Porter County Commissioners, et al, an 11-page opinion, Chief Judge Baker writes:
Appellant-plaintiff Liberty Landowners Association, Inc., (Liberty Landowners) appeals the trial court's order dismissing its complaint for declaratory judgment that it filed against the appellees-defendants Porter County Commissioners (Commissioners) regarding the decision to rezone certain real property in Porter County, which permitted appellee-intervenor Northwest Indiana Health System, LLC (Northwest Health) to construct a hospital on the property. Specifically, Liberty Landowners argues that the trial court erred in concluding that it lacked standing to proceed with the action. Concluding that the trial court properly dismissed Liberty Landowners's complaint, we affirm. * * *

The determination of whether a plaintiff's complaint should be dismissed for lack of standing is properly treated as a motion to dismiss under Indiana Trial Rule 12(B)(6)—the failure to state a claim upon which relief may be granted. Common Council of Michigan City v. Bd. of Zoning Appeals of Michigan City, 881 N.E.2d 1012, 1015 (Ind. Ct. App. 2008). A successful 12(B)(6) motion requires the lack of standing to be apparent on the face of the complaint. Huffman v. Ind. Office of Envtl. Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). Additionally, the determination of whether a plaintiff's complaint should be dismissed for lack of standing pursuant to a Trial Rule 12(B)(6) motion is generally one of law. Vectren Energy Mktg. & Servs. v. Executive Risk Specialty Ins. Co., 875 N.E.2d 774, 777 (Ind. Ct. App. 2007). We apply a de novo standard of review, and we need not accord deference to the trial court's decision. Reversal is appropriate if an error of law is demonstrated. State ex rel Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005).

As noted above, Liberty Landowners contends that the trial court erred in granting the Commissioners' motion to dismiss on the grounds that it lacked standing to maintain the action. More specifically, although Liberty Landowners acknowledges that it did not have standing as a private individual, [it contends that] the doctrine of “public standing” permits it proceed with its claims. Appellant's Br. p. 6-12. * * *

In an effort to distinguish the long line of precedent holding that residents' associations do not have standing to challenge zoning decisions, Liberty Landowners argues that its claim against the Commissioners survives in light of the “public standing doctrine,” which is an exception to the general requirement that a plaintiff must have an interest in the outcome of the litigation different from that of the general public. Embry v. O'Bannon, 798 N.E.2d 157, 160 (Ind. 2003).

Notwithstanding this contention, the Commissioners point out that Liberty Landowners did not raise the issue of public standing in the trial court. Rather, it is apparent that Liberty Landowners sought to have the trial court reverse established precedent that landowner associations owning no real estate are without standing to challenge zoning decisions. Thus, Liberty Landowners has waived the issue. See Van Meter v. Zimmer, 697 N.E.2d 1281, 1283 (Ind. Ct. App. 1998) (holding that a party may not advance a theory on appeal which was not originally raised at the trial court level).

Waiver notwithstanding, we note that the public standing doctrine or the availability of taxpayer or citizen standing is limited to extreme circumstances and should be applied with “cautious restraint.” * * * Indeed, even when public standing is asserted, claimants must still have some property right or some other personal right and a pecuniary interest.

As noted above, it is undisputed that Liberty Landowners owns no property and pays no taxes. Moreover, Liberty Landowners has no legal right—personal or pecuniary—that has been put in jeopardy by the Commissioners' decision. In other words, Liberty Landowners has not alleged any direct harm and has not been denied any rights. As a result, Liberty Landowners's claims fail. The judgment of the trial court is affirmed.

The ILB has had a number of entries on the Liberty Landowners Ass'n. challege to rezoning for the new Porter hospital.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on September 29, 2009 11:57 AM
Posted to Ind. App.Ct. Decisions