FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAMES P. FENTON GEORGE M. PLEWS
ALAN VerPLANCK TIMOTHY J. PARIS
CATHLEEN M. SHRADER Plews Shadley Racher & Braun
Barrett & McNagny Indianapolis, Indiana
Fort Wayne, Indiana
CITY OF NEW HAVEN, INDIANA )
)
Appellant, )
)
vs. ) No. 02A03-9606-CV-203
)
CHEMICAL WASTE MANAGEMENT OF )
INDIANA, L.L.C., CHEMICAL WASTE )
MANAGEMENT, INC., and WMX )
TECHNOLOGIES, INC., )
)
Appellees. )
OPINION - FOR PUBLICATION
.
several "stop work orders" on CWMI, after which time CWMI moved to join the Zoning
Administrator as a party to the City's zoning enforcement case. In addition to issuing several
stop work orders, the Zoning Administrator filed its counterclaim and an application for
injunctive relief against CWMI. All parties moved for summary judgment in CP-308. The
trial court issued its findings, conclusions, and order granting in part and denying in part
CWMI's motion for summary judgment. The relevant portion of the trial court's order stayed
all further proceedings "pending CWMI's exhaustion of administrative remedies before any
administrative agencies having primary jurisdiction over CWMI's land use."
54(B). Thereafter, the BZA, the Zoning Administrator, and the City initiated an appeal of
CP-764.
Trial Rule 24(B)(2).See footnote
2
In support of its motion to dismiss the City's appeal, CWMI contends
that following the settlement and dismissal of the case between the original parties, the City,
as a permissive intervenor, may not maintain an appeal to this court. Essentially, CWMI
asks this court to question our jurisdiction to hear the present appeal.
Indiana law provides that an intervenor takes the case as he finds it and cannot change
the issues or raise unrelated issues. Cromer v. Sefton, 471 N.E.2d 700, 705 (Ind. Ct. App.
1984); see also Heritage House of Salem, Inc. v. Bailey, 652 N.E.2d 69, 74 (Ind. Ct. App.
1995), trans. denied. Accordingly, one should not be granted permissive intervention if the
effect of granting the motion would be to open up new areas of inquiry or raise unrelated
issues. Heritage House of Salem, Inc., 652 N.E.2d at 69. Although one who has been
granted permissive intervening status cannot later interject new areas of inquiry or raise
unrelated issues, the question remains as to what rights the intervening party has to continue
to pursue issues raised by the original parties where those parties have decided to settle
and/or dismiss the case as between themselves.
The parties do not cite, and we are unaware of, any Indiana decision addressing the
rights a permissive intervenor may or may not have in the event of a settlement and/or
dismissal of the case as between the original parties to the lawsuit. We note that Trial Rule
24 is similar to its federal counterpart and, thus, we will consider federal authority a useful
guide in our opinion today. See Keith v. Mendus, 661 N.E.2d 26, 34 (Ind. Ct. App. 1996),
trans. denied; Bryant v. Lake County Trust Company, 166 Ind. App. 92, 334 N.E.2d 730, 735
(1975). However, we stress that we are not bound by the federal courts' interpretation or
application of federal rules of procedure when applying this State's rules. Rickels v. Herr,
638 N.E.2d 1280, 1283 (Ind. Ct. App. 1994). We are particularly cognizant of that notion
here where we are not concerned merely with the application of one of our procedural rules,
but where a party questions this court's appellate jurisdiction as it relates to that rule; an
appellate jurisdiction which is dissimilar to that of the federal courts. With this in mind, we
consider the issue at hand.
Generally, one who has been allowed to intervene in an action may appeal from
subsequent orders in the action. 4 Charles A.Wright et al., Federal Practice and
Procedure: Civil 2d § 1923 (1986). As noted by the Ninth Circuit Court of Appeals,
approximately half of the circuits have addressed the rights of an intervenor after dismissal
of the party who originated the case under Federal Rule of Civil Procedure 24, and all have
reached the same conclusion. "The weight of authority in the United States Court[s] of
Appeals supports the principle that an intervenor can continue to litigate after dismissal of
the party who originated the action." Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir. 1994)
(quoting United States Steel Corp. v. E.P.A., 614 F.2d 843, 845 (3d Cir. 1979).See footnote
3
Most of
the circuits that have reached that conclusion have set standards for determining under what
circumstances an intervening party may continue to litigate after dismissal of the original
party and have generally adopted, inter alia, the approach that an intervenor may continue
provided that an independent basis for jurisdiction exists. See Benavidez, 34 F.3d at 830.See footnote
4
CWMI urges this court to adopt that same standard set by the federal circuits and to
hold that, in the absence of the party who originated the suit, a permissive intervening party
may only continue to litigate, including the pursuit of an appeal, if the permissive intervenor
has established an independent "statutory" basis for this court's jurisdiction. CWMI notes
that the federal courts invariably require the intervenor to cite to a statute which provides the
intervenor with an independent statutory basis for jurisdiction, and in this case, the City has
failed to do so. However, CWMI's argument is flawed, as it fails to consider the difference
between federal court and state court subject-matter jurisdiction.
The power of federal courts to hear and decide cases is defined by Article III of the
United States Constitution and by the federal statutes enacted thereunder. Karcher v. May,
484 U.S. 72, 77 (1987). If, for example, the originating party is absent, it has been necessary
for federal courts to look to an intervenor's ability to independently meet federal question
jurisdiction pursuant to 28 U.S.C. § 1331, Benavidez, 34 F.2d at 830, or the intervenor's
ability to meet diversity jurisdiction pursuant to 28 U.S.C. § 1332, Arkoma Assoc. v. Carden,
904 F.2d 5, 7 (5th Cir. 1990), cert. denied 488 U.S. 967 (1990), in order to sustain the
federal court's subject-matter jurisdiction over the controversy. As do Indiana Courts, federal
courts have an obligation sua sponte to raise issues concerning subject-matter jurisdiction
whether it be the appellate court's or the district court's jurisdiction that is in doubt.
Benavidez, 34 F.2d at 830; see Santiago v. Kilmer, 605 N.E.2d 237, 240 (Ind. Ct. App.
1994), trans. denied.
The power of this court to hear appeals is not limited by the same parameters as the
federal circuit courts of appeals. Our ability to exercise subject-matter jurisdiction is by
virtue of the authority vested in the Indiana Supreme Court to specify by rule the terms and
conditions of such jurisdiction. Ind. Const., art. 7, § 6; see State v. Pease, 531 N.E.2d
1207, 1208 (Ind. Ct. App. 1988). Our state supreme court has provided by rule those appeals
which may be taken directly to the supreme court, and has further provided that "[I]n all
other cases, appeals shall be taken to the Court of Appeals." Ind.Appellate Rule 4(B).
Provided that certain procedural requirements are met, appeals may be taken by either
"party" from all final judgments and from interlocutory orders under specified circumstances.
App.R. 4(A) & (B).See footnote
5
We agree that one who is not a party or has not been treated as a party to a lawsuit has
no right to appeal from a judgment rendered therein. Karcher, 484 U.S. at 77. However, one
who is not an original party to a lawsuit may of course become a party and, in effect, gain
the right to appeal, by intervention, substitution, or third-party practice. See id. (citations
omitted).See footnote
6
As stated earlier, the trial court granted the City intervening status pursuant to Trial
Rule 24(B)(2) because its claims against CWMI had questions of law or fact in common with
the BZA's claims. Because the trial court concluded that the City met the common question
condition of permissive intervention, the City was properly before the trial court as a party.
The City's status as a party to the lawsuit and the judgment rendered therein does not end
merely because the original parties decided to settle their claims and to forego the pursuit of
an appeal. Dismissal of the suit as between the original parties does not render moot the
City's claims. There is no indication that the City has failed to meet the procedural
requirements to bring an appeal to this court. As a party to the judgment rendered in CP-642,
the City has the right to appeal that judgment to the extent that it is adverse to those interests
which made intervention possible in the first place. This court has subject-matter jurisdiction
over the City's appeal of CP-642.
As conceded by CWMI, the City appeared at the BZA's hearings and urged the BZA to affirm all of the Zoning Administrator's SWOs and NOVs. Accordingly, the City was an
"adverse party" as defined by Indiana Code § 36-7-4-1005(b). Thereafter, the City appeared
as a remonstrator in the certiorari proceedings in the trial court.
CWMI cites this court to no authority which would preclude the City from
maintaining an appeal, in its own right, from the certiorari proceedings. Indeed, we have
found authority in which remonstrators have successfully appealed a trial court's judgment
on writ of certiorari filed by another party. See e.g. Bradley v. Bankert, 616 N.E.2d 18, 19
(Ind. Ct. App. 1993) (remonstrators appealed trial court's judgment on certiorari which
reversed decision of BZA), trans. denied. Contrary to CWMI's assertion, it is of no moment
that the City did not file its own petition for writ of certiorari challenging the BZA's
determinations. As an adverse party to CWMI and remonstrator in the certiorari
proceedings, the City has the right to appeal the trial court's judgment in CP-764. Indiana
Code § 36-7-4-1011 does not limit the right to appeal to only the "petitioner" for certiorari.
Moreover, as provided by statute, an appeal from certiorari proceedings is taken in the same
manner as appeals in other civil actions. See Ind. Code § 36-7-4-1011. As we noted in Issue
One, Indiana Appellate Rule 4(A) states that an appeal may be taken by "either party." We
conclude that the City was a party to the certiorari proceedings and, thus, has the right to
appeal CP-764.
The only issues properly before the trial court in CP-764 were those BZA
determinations challenged in CWMI's writ. See Board of Zoning Appeals v. Cochran, 456
N.E.2d 1047, 1051 (Ind. Ct. App. 1983). However, we disagree with CWMI that, on
appeal, the City is constrained to argue those issues in CWMI's favor. Some of the trial
court's rulings on CWMI's challenge to the BZA determinations were favorable to CWMI
and others were not. Thus, while the City cannot now challenge any BZA decisions which
were not raised below, the City may assert error in the trial court's rulings which were
adverse to its interest (those orders which reversed the BZA in favor of CWMI). CWMI has
failed to establish grounds for dismissal of the City's appeal of CP-764.
Motion to dismiss denied.
HOFFMAN, J. and STATON, J. concur.
(B) Permissive Intervention. Upon timely filing of his motion anyone may be permitted to
intervene in an action:
Converted from WP6.1 by the Access Indiana Information Network