Turf Pro Plus, Inc. v. Indianapolis Department of Public Works, The City-County Council, and The Hon. Greg Ballard ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Jul 09 2013, 6:29 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
JOHN THRASHER CAMERON G. STARNES
Indianapolis, Indiana Assistant Corporation Counsel
Office of Corporation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TURF PRO PLUS, INC., )
Appellant/Plaintiff and Counter- )
Plaintiff, )
)
vs. ) No. 49A02-1301-CC-66
)
INDIANAPOLIS DEPARTMENT OF )
PUBLIC WORKS, THE CITY-COUNTY )
COUNCIL, and THE HON. GREG )
BALLARD, Mayor of Indianapolis, )
Appellees/Defendants and )
Counter-Plaintiffs. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Shaheed, Judge
Cause No. 49D01-1203-CC-11747
July 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Claiming a violation of the Indiana Public Works Purchasing Act (“the Public Works
Purchasing Act” or “the Act”), see Ind. Code § 36-1-12-1 et seq., Turf Pro Plus, Inc. (“Turf
Pro”) filed a suit for damages against the Indianapolis Department of Public Works (“the
Department”), the Indianapolis-Marion County City-County Council (“the Council”), and
Greg Ballard in his capacity as the Mayor of the City of Indianapolis (“the Mayor”)
(collectively, “the City”). Turf Pro’s claims arose from the City’s decision to award certain
contracts for grass-mowing in six Indianapolis city park zones to a contractor other than Turf
Pro, even though Turf Pro was the lowest bidder for these zones. The trial court granted the
City’s motion to dismiss Turf Pro’s complaint. Turf Pro now appeals.
Determining sua sponte that we lack jurisdiction to hear this appeal, we dismiss.
Facts and Procedural History1
In 2011, the City solicited bids for the mowing of grass in eight of the City’s park
zones. On March 11, 2011, Turf Pro submitted bids for all eight zones. On March 21, 2011,
Turf Pro was awarded a contract for two of these. Turf Pro subsequently learned that it was
the lowest bidder on the six zones for which it was not awarded contracts.
On March 22, 2012, Turf Pro filed suit against the City, contending that Turf Pro was
the lowest responsive bidder under the Public Works Purchasing Act, that the City acted
contrary to the Act when it did not award Turf Pro all eight contracts, and that Turf Pro was
entitled to all eight contracts under the Act.
1
We take our statement of facts in part from Turf Pro’s complaint.
2
Rather than file an answer, on June 15, 2012, the City filed a motion to dismiss Turf
Pro’s complaint under Trial Rule 12(B)(6). In its motion and supporting memorandum, the
City argued that the mowing contracts did not fall within the Act, that as a result Turf Pro
lacked standing to pursue a claim, and thus the trial court should dismiss the complaint. On
June 19, 2012, Turf Pro filed a motion for summary judgment, seeking judgment in its favor
on all its claims.
On September 18, 2012, the trial court granted the City’s motion to dismiss.
On September 26, 2012, Turf Pro filed a motion to correct error. On November 26,
2012, the trial court conducted a hearing and, in a jacket entry on the Chronological Case
Summary, denied the motion.
On January 24, 2013, Turf Pro filed its Notice of Appeal.
Discussion and Decision
Though neither party raises the issue on appeal, this Court has an obligation to
determine sua sponte whether it has the requisite jurisdiction to decide cases before it.
Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind. Ct. App. 2009). Our review of the
record leads us to conclude that we do not have jurisdiction here.
Appellate Rule 9(A) requires that a party seeking appellate review of a final judgment
must initiate its appeal within thirty days of the judgment. If a party timely files a motion to
correct error, however, the time for initiation of appeal is “thirty (30 days after the court’s
ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after
the motion is deemed denied under Trial Rule 53.3, whichever occurs first.” Ind. Appellate
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Rule 9(A)(1). Failure to timely perfect an appeal deprives this Court of jurisdiction to decide
the case. Johnson, 917 N.E.2d at 1239.
Here, Turf Pro timely filed a motion to correct error, and a hearing was conducted on
the motion on November 26, 2012. In its Notice of Appeal of January 24, 2013, Turf Pro
states that, pursuant to Trial Rule 53.3, the motion to correct error was deemed denied on
December 27, 2012.
This is incorrect, however. The trial court’s CCS reflects a denial of Turf Pro’s
motion to correct error on November 26, 2012, without any form of nunc-pro-tunc entry or
other notation that the order was deemed denied as of a specific date. That is to say, Turf
Pro’s notice of appeal was due thirty days after November 26, 2012. Yet Turf Pro’s notice of
appeal was filed on January 24, 2013, nearly one full month beyond the filing date required
by Appellate Rule 9(A).
In the absence of a timely filing of the notice of appeal, Turf Pro’s appeal was not
properly perfected. We lack jurisdiction over this matter, and must dismiss the appeal.
Dismissed.
NAJAM, J., and BARNES, J., concur.
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