Health and Hospital Corporation of Marion County v. Dennis Foreman , 2016 Ind. App. LEXIS 36 ( 2016 )

Feb 10 2016, 6:03 am
ATTORNEYS FOR APPELLANT APPELLEE PRO SE
Brian J. Paul Dennis Foreman
Daniel E. Pulliam Indianapolis, Indiana
Anne K. Ricchiuto
Faegre Baker Daniels LLP
Indianapolis, Indiana
Amy B. Jones
Silvia B. Miller
Health and Hospital Corporation of
Marion County
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Health and Hospital Corporation February 10, 2016
of Marion County, Court of Appeals Case No.
Appellant-Plaintiff, 49A02-1504-OV-229
Appeal from the Marion Superior
v. Court,
Environmental/Community
Dennis Foreman, Division
The Honorable David Certo, Judge
Appellee-Defendant.
The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G21-1412-OV-70843
May, Judge.
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[1] Health and Hospital Corporation of Marion County (HHC) 1 appeals an
interlocutory order granting Dennis Foreman a change of judge. We reverse
and remand.
Facts and Procedural History
[2] In 2014, 2 HHC filed a complaint for injunction and fine against Foreman based
on allegations a residence he owned did not meet certain HHC code
requirements. At the initial hearing, the trial court heard arguments regarding
Foreman’s pro se motion for change of judge. HHC objected to Foreman’s
motion, citing Ind. Code § 16-22-8-31(e), which outlines the process whereby a
“change of venue from a judge” may be achieved for HHC-related proceedings,
and Ind. Code § 34-35-3-3, which is cited as the source of the requirements for a
change of judge under Ind. Code § 16-22-8-31(e).
[3] The trial court granted Foreman’s motion for a change of judge. On March 3,
2015, HHC filed a motion for certification for interlocutory appeal, and the trial
court certified its order for interlocutory appeal. We accepted jurisdiction on
May 19, 2015.
1
HHC is “a municipal corporation as created by Indiana Code 16-22-8, et seq.” (App. at 6.)
2
The Chronological Case Summary indicates HHC filed its complaint on December 12, 2014. However, the
complaint is file stamped November 10, 2014. The date the complaint was filed does not affect the issues in
this appeal.
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Discussion and Decision
[4] We first note Foreman proceeded at trial and proceeds in this appeal pro se. A
litigant who proceeds pro se is held to the same established rules of procedure
that trained counsel is bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555
(Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a litigant takes when
he proceeds pro se is that he will not know how to accomplish all the things an
attorney would know how to accomplish. Id. When a party elects to represent
himself, there is no reason for us to indulge in any benevolent presumption on
his behalf or to waive any rule for the orderly and proper conduct of his appeal.
Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
[5] We review de novo questions involving the interpretation of statutes and Indiana
Trial Rules. See State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind.
2012) (interpretation of statutes are questions of law and questions of law are
reviewed de novo); see also Miller v. Danz, 36 N.E.3d 455, 457 (Ind. 2015)
(interpretation of Indiana Trial Rules is question of law to be reviewed de novo),
reh’g denied.
Appellate courts independently, and without the slightest
deference to trial court determinations, evaluate those issues they
deem to be questions of law. A pure question of law is one that
requires neither reference to extrinsic evidence, the drawing of
inferences therefrom, nor the consideration of credibility
questions for its resolution.
Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000).
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[6] In State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 400, 157 N.E.2d 475,
478 (1959), our Indiana Supreme Court decided the procedural rule, which
required a litigant to file a change of judge motion within ten days “after the
issues were first closed on the merits,” superseded the more lenient filing
requirements of the statute governing a request for change of judge in a levee
proceeding. It held “the right to change judge granted by [the statute] is a
substantive right which can be conferred only by the Legislature, but the method
and time of asserting such right are matters of procedure and fall within the
category of procedural rules.” Id. (emphasis in original).
[7] In Sayeed v. Dillon, 573 N.E.2d 468, 471 (Ind. Ct. App. 1991), Sayeed, the
owner of an insolvent prepaid health care delivery plan, sought to change venue
from Marion County to Lake County of the claim against it brought under a
portion of the Indiana Code that required liquidation proceedings for those
types of organizations to be brought in Marion County. Sayeed filed a motion
for change of venue pursuant to the relevant civil procedure statute in effect at
the time, which requires the court to change the venue of a civil action “made
upon affidavit . . . [s]howing to the satisfaction of the court that the
conveniences of witnesses and the ends of justice would be promoted by the
change.” Ind. Code § 34-1-13-1 (repealed 1998). However, “[w]hen a change
of venue is directed for any of the causes mentioned in the third, fourth, and
fifth specifications of [Ind. Code § 35-1-13-1], the court or judge shall designate
the county to which the venue shall be changed, which may be in the same or in
an adjoining court[.]” Ind. Code § 34-1-13-2 (1983) (repealed 1998).
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[8] We held, regarding the interaction between the statutes and T.R. 76:
As a practical matter, the fifth specification of I.C. 34-1-13-1 has
been superseded in modern times by T.R. 76 which allows an
automatic change of venue in civil actions to an adjoining county
without the necessity of showing inconvenience or other
prejudice. We believe that the only logical interpretation of I.C.
34-1-13-2 - to the extent it needs interpretation - is to read it as
being consistent with T.R. 76, that is, as permitting a change of
venue only to an adjoining circuit/county. We believe it is clear
that the General Assembly, in enacting the special venue
provisions for the liquidation of prepaid health care delivery
plans, intended to limit the ability of litigants to change venue
from the Marion County circuit court. The automatic change of
venue provisions of T.R. 76 were eliminated. We hold that
change of venue provisions applicable to the present liquidation
proceeding must be read consistently with T.R. 76. We cannot
believe that our legislature intended to authorize the transfer of
insurance liquidation cases from Marion County to the far
corners of the state.
Sayeed, 573 N.E.2d at 471 (citations omitted). The holdings in Blood and Sayeed
apply here.
[9] As in Blood, T.R. 76 controls the time frame in which Foreman could file for a
change of judge. See T.R. 76(c) (providing time frames for filing motion for
change of judge under certain situations). However, like in Sayeed, the
requirements of filing, specifically that Foreman file an affidavit alleging a
reason for the change of judge, are substantive because they apply to
requirements for special types of actions, such as those initiated by the HHC.
See Ind. Code § 16-22-8-31(e) (requiring request for change of judge in actions
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regarding the HHC “meet the requirements in IC 34-35-3-3”); see also Ind. Code
§ 34-35-3-3(b) (requiring litigant seeking change of judge to file an affidavit
concerning why a change of judge is appropriate). As in Sayeed, considering the
specialized nature of HHC cases, we believe the legislature, in enacting Ind.
Code § 16-22-8-31(e) and requiring the extra step of providing an affidavit
regarding the reason for the request for change of judge pursuant to Ind. Code §
34-35-3-3(b), intended to supersede the more lenient provision regarding change
of judge in T.R. 76.
Conclusion
[10] Because the provisions of Ind. Code § 16-22-8-31(e) and Ind. Code § 34-35-3-3
required Foreman to file an affidavit concerning why he wanted a change of
judge, and Foreman did not do so, the trial court erred when it granted
Foreman’s request for change of judge. We accordingly reverse and remand for
proceedings consistent with this opinion.
[11] Reversed and remanded.
Najam, J., and Riley, J., concur.
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