Charles J. Davis Sr. v. Jay Phelps, Bartholomew County Clerk , 2016 Ind. App. LEXIS 376 ( 2016 )

FILED
Oct 17 2016, 9:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE
Charles J. Davis Sr.
Carlisle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles J. Davis Sr., October 17, 2016
Appellant-Petitioner, Court of Appeals Case No.
03A01-1604-PL-928
v. Appeal from the Bartholomew
Circuit Court
Jay Phelps, The Honorable Stephen R.
Bartholomew County Clerk, Heimann, Judge
Appellee-Respondent Trial Court Cause No.
03C01-1601-PL-390
Baker, Judge.
Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016 Page 1 of 4
[1] Charles Davis Sr. appeals the trial court’s order dismissing his complaint for
failure to make a timely payment of filing fees. Finding that the trial court was
statutorily required to give Davis forty-five days to make the payment, but gave
him only thirty days, and that Davis made the required payment within forty-
five days, we reverse and remand.
[2] On January 19, 2016, Davis filed a complaint against Jay Phelps, the
Bartholomew County Clerk, for an alleged violation of the Indiana Access to
Public Records Act. Because Davis is incarcerated, he filed a motion for waiver
of the filing fees. On March 2, 2016, the trial court entered an order denying
Davis’s motion and requiring Davis to “pay filing fees in the sum of $17.18
within 30 days of this Order.” Appellant’s App. p. 5. On April 5, 2016, the
trial court entered an order dismissing the complaint because Davis had not yet
paid the filing fees. On April 11, 2016, the trial court received Davis’s check for
$17.18; it returned the check because the complaint had been dismissed. Davis
now appeals.
[3] Initially, we note that the appellee has not filed a brief in this appeal.
Therefore, we need not develop an argument on his behalf and may reverse if
Davis is able to establish prima facie error—error on the face of the order being
appealed. Evans v. Thomas, 976 N.E.2d 125, 126 (Ind. Ct. App. 2012).
[4] Indiana Code section 33-37-3-3 provides that, as a general rule, incarcerated
persons must pay a partial filing fee. The offender may claim that there are
special circumstances and request relief from the partial filing fee requirement.
Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016 Page 2 of 4
Ind. Code § 33-37-3-3(c). If the trial court denies the request to waive all filing
fees, “the court shall give written notice to the offender that the offender’s case
will be dismissed if the partial filing fee is not paid not later than forty-five (45)
days after the date of the order, or within an additional period that the court
may, upon request, allow.” I.C. § 33-37-3-3(d). The plain language of this
statute clearly indicates that, at the least, the trial court must afford the offender
with forty-five days to pay the partial filing fee. The trial court may give the
offender more time, but there is nothing in the statute permitting the trial court
to afford the defendant less than forty-five days to make the payment.
[5] In this case, the trial court gave Davis only thirty days from the date of the
order denying his motion for waiver of the partial filing fees to make the
required payment. Based on the plain language of the relevant statute, Davis
should have been afforded at least forty-five days. And the trial court did, in
fact, receive Davis’s payment on April 11, 2016—less than forty-five days after
March 2, 2016, when the order was entered.1 Given the plain language of
Indiana Code section 33-37-3-3(d), we reverse the trial court’s order dismissing
Davis’s complaint and remand with instructions to Davis to re-send the filing
fee of $17.18 within forty-five days of the certification of this decision and for
further proceedings.
1
Davis also argues on appeal that the prison mailbox rule should be applied to this case and that, if that rule
applies, his payment was timely sent even if we found that the thirty-day time limit was proper. Because we
find that the thirty-day time limit was not proper and that his payment was received by the trial court within
forty-five days, we will not address his arguments regarding the prison mailbox rule.
Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016 Page 3 of 4
[6] The judgment of the trial court is reversed and remanded with instructions to
Davis to re-send the filing fee of $17.18 within forty-five days of the certification
of this decision and for further proceedings.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Opinion 03A01-1604-PL-928 | October 17, 2016 Page 4 of 4