Butler Toyota, Inc. v. Metropolitan Board of Zoning Appeals, Division I

HOFFMAN, Judge.

Appellants Butler Toyota, Inc., and Jonathan's Keepe ({coliectively Butler) appeal the dismissal of a petition for a writ of certiorari. The petition was filed when ap-pellee Dellen Realty Inc., (Dellen) was allowed to redocket a variance request with the Board of Zoning Appeals (Board) within one year of an adverse decision on the same variance request.

The facts relevant to this appeal disclose that Butler opposed the redocketing of a variance request submitted by Dellen, which allegedly was in violation of a Board rule. After the Board allowed the redock-eting, Butler filed a petition for a writ of certiorari in the Circuit Court of Marion County on November 7, 1984. Delien filed a motion to dismiss the petition on November 26, 1984 based on defective service of the notice of the filing of the petition. On January 24, 1985 the circuit court granted Dellen's motion to dismiss.

Essentially, Butler raises one issue for review: whether the trial court erred in dismissing Butler's petition for a writ of certiorari based on defective service, when Butler served the notice on Dellen's counsel of record in the zoning proceeding rather than upon an executive officer or a resident agent designated to receive service for the corporation.

Butler argues that Ind.Rules of Procedure, Trial Rule 5(B) allows service upon an attorney of record unless the court specifies service upon the party. Further, Butler contends that the statute which requires notice of the certiorari petition, IND. CODE § 36-7-4-1005, provides for service on "each adverse party, as shown by the record of the appeal in the office of the [Board]." Thus, according to Butler, to require service on the party rather than the party's attorney would "engraft'" additional requirements on the statute.

In Kupfer et al. v. Board of Zoning Appeals (1959), 130 Ind.App. 55, 162 N.E.2d 110, this Court determined that a petition for a writ of certiorari to review an administrative order is an original lawsuit. Kupfer, supra, 130 Ind.App. at 62, 63, 162 N.E.2d at 114. Because the petition is an original suit, service could not be accomplished through an attorney unless the party agrees to be bound. Kupfer, supra. As in Kupfer, no election for service through the attorney is evident from the record in the present case and the motion specifically protests the manner of service. The failure to properly serve notice on Del-len deprived the trial court of jurisdiction; accordingly, the writ was properly dismissed. See, Kupfer, supra.

Trial Rule 5(B) allows and even mandates service upon a party's attorney of record for pleadings and other papers, after a suit has been commenced. However, service of process in an original proceeding is provided for in TR. 4. In the present case, TR. 4.6(A)(1) service upon organizations, is applicable and requires service "upon an executive officer ..., or if there is an agent appointed or deemed by law to have been appointed to receive service, then upon such agent." Dellen's attorney was neither an executive officer nor the resident agent for Delien. Therefore, service upon the attorney was improper pursuant to the Ind.Rules of Procedure and pursuant to this Court's decision in Kupfer, supra.

Judgment of the circuit court is affirmed.

Affirmed.

GARRARD, J., concurs. STATON, P.J., dissents with opinion.