4110 LLC v. Fall Creek Township, Hamilton County, Indiana Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] 4110 Investments LLC owns real estate in Hamilton County, Indiana, that abuts a portion of Fall Creek Woods Natural Area. Fall Creek Township is seeking to acquire 4110 Investments’ property and use it for conservation purposes. After private sale negotiations failed, Fall Creek Township filed a complaint for the appropriation of the property, to which 4110 Investments filed an objection. The trial court overruled that objection, and 4110 Investments now appeals, raising several issues for review. Because 4110 Investments failed to follow the statutory requirements set forth in Indiana Code section 32-24-1-8(g) when it filed the transcript late, we dismiss this appeal.

Facts and Procedural History

[2] Fall Creek Township owns and operates Fall Creek Woods Natural Area, an 80-acre park in Hamilton County, Indiana. 4110 Investments owns three parcels (the “Subject Property”) located to the north of and immediately adjacent to the Fall Creek Woods Natural Area. In late 2023, Fall Creek Township extended a uniform offer letter to 4110 Investments to purchase the Subject Property, but negotiations were unsuccessful.

[3] On February 5, 2024, the Fall Creek Township Advisory Board passed a resolution authorizing the purchase or condemnation of the Subject Property, among other things. A month later, Fall Creek filed a complaint seeking to condemn the Subject Property, to which 4110 Investments filed written objections. After a hearing, the trial court issued an order on September 23 in which it overruled 4110 Investments’ objections.

[4] On October 23, 4110 Investments filed a notice of appeal, challenging the trial court's order pursuant to Indiana Code section 32-24-1-8(e), which allows “[a]ny defendant [to] appeal the interlocutory order overruling the objections and appointing appraisers in the manner that appeals are taken from final judgments in civil actions.” On December 9, the Notice of Completion of Transcript was filed with the Clerk of the Hamilton County Superior Court. Fall Creek Township filed a motion to dismiss 4110 Investments’ appeal, which this court's motions panel denied before the case was fully briefed.

Discussion and Decision

[5] 4110 Investments argues on appeal that the trial court erred when it overruled 4110 Investments’ objections. In response, Fall Creek Township asserts that this appeal should be dismissed because 4110 Investments failed to follow the statutory procedures set forth in Indiana Code section 32-24-1-8. Fall Creek Township asserted the same argument with this court in a motion to dismiss, which this court's motions panel denied. Fall Creek Township now asks us to reconsider our motions panel's denial of its motion to dismiss. A writing panel of this court may reconsider a decision of our motions panel while the appeal remains pending, but we are reluctant to do so. Means v. State, 201 N.E.3d 1158, 1164–1165 (Ind. 2023) (citing Bridgestone Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 n.2 (Ind. 2007)) (quoting City of Indianapolis v. Tichy, 122 N.E.3d 841, 844 n.3 (Ind. Ct. App. 2019)). Generally, we overrule a decision of our motions panel only “where a more complete record reveals clear authority establishing that our motions panel erred.” Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App. 2013) (citing Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App 2011)).

[6] Here, the briefing and additional research reveal clear authority establishing that our motions panel erred.¹ It is well established in Indiana that because Indiana Code section 32-24-1-8 ² “is special in character, the appellant must bring himself clearly within the procedure which he undertakes to invoke.” Tr. Co. v. Ind. Port Comm'n, 248 Ind. 362, 366, 229 N.E.2d 457, 459 (1967), 219 Ind. 424, 428, 39 N.E.2d 4448 (19); Beasley v. Harrison Cnty. Bd. of Comm'rs, 198 N.E.3d 1206, 1208 (Ind. Ct. App. 2022) (quoting Pouch v. Pub. Serv. Co., 165 Ind. App. 608, 610, 333 N.E.2d 812, 813 (1975)). As relevant here, Indiana Code section 32-24-1-8(g) states “[t]he transcript must be filed in the office of the clerk of the supreme court not later than thirty (30) days after the notice of the defendant's appeal is filed.” (Emphases added). An appellant who fails to comply with the requirements of Indiana Code section 32-24-1-8—including timely filing a transcript pursuant to subsection (g)—cannot maintain an appeal thereunder. See Beasley, 198 N.E.3d at 1208; Pouch, 165 Ind. App. at 611, 333 N.E.2d at 813; see also Lake Cnty. Tr., 248 Ind. at 366, 229 N.E.2d at 459.

[7] Here, 4110 Investments filed its notice of appeal on October 23, 2024. The Notice of Completion of Transcript was filed with the Clerk of the Hamilton County Superior Court on December 9, 2024, which was more than 30 days after 4110 Investments filed its notice of appeal. Based on our Supreme Court's precedent, 4110 Investments cannot claim relief under Indiana Code section 32-24-1-8 because it failed to strictly comply with Indiana Code section 32-24-1-8(g) transcript filing deadline. See Lake Cnty. Tr., 248 Ind. at 366, 229 N.E.2d at 459; see also Beasley, 198 N.E.3d at 1208. We therefore overrule our motions panel's decision to deny Fall Creek Township's Motion to Dismiss and dismiss this case.

[8] Dismissed.

FOOTNOTES

1.   Judge Felix was part of the motions panel that denied Fall Creek Township's motion to dismiss. At motions panel stage, the issue of whether Indiana Code section 32-24-1-8 or the Appellate Rules controlled this case needed additional research. As opposed to dismissing the case prior to briefing, the motions panel desired additional briefing from the parties as well as additional time to research the issue of whether the statute or the Appellate Rules controlled.

2.   The statute now cited as Indiana Code section 32-24-1-8 has undergone cosmetic and minor substantive changes over the decades; however, the 30-day deadline for filing the transcript has remained unchanged since the Eminent Domain Act of 1905 went into effect. See generally Ind. Code § 32-11-1-5 (prior version), repealed by, 2002 Ind. Acts 6672, 2002 Ind. Legis. Serv. P.L. 2-2002 § 128 (West); Ind. Code Ann. § 1-30-933 (1908) (prior version); Act of Feb. 27, 1905, ch. 48, s. 5, 1905 Ind. Acts 62 (originally enacted statute).

Felix, Judge.

Judges Mathias and Foley concur. Mathias, J., and Foley, J., concur.