Hugo Torres v. City of Hammond ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
May 15 2013, 8:36 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID PAUL ALLEN STEVEN J. SERSIC
Hammond, Indiana KEVIN C. SMITH
KRISTINA KANTAR
Smith, Sersic
Munster, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HUGO TORRES, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1210-OV-430
)
CITY OF HAMMOND, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Sheila M. Moss, Judge
Cause No. 45D08-1109-OV-03183
May 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Hugo Torres appeals the trial court’s denial of his motion to dismiss. We affirm.
ISSUE
Torres presents one issue for our review, which we restate as: whether the trial
court erred by denying Torres’ motion to dismiss for lack of personal jurisdiction.
FACTS AND PROCEDURAL HISTORY
In June 2010, the City of Hammond (“City”) filed a citation for municipal
ordinance violations against Torres for alleged violations occurring on his property. On
August 25, 2011, following a bench trial, the Hammond City Court entered final
judgment against Torres on eight of the eleven counts alleged in the citation and imposed
a fine of $100 on each count, plus court costs.
Dissatisfied with the result in the city court, Torres filed his request for trial de
novo in the Lake County Superior Court on September 1, 2011. There, Torres filed a
motion to dismiss for lack of personal jurisdiction on November 29, 2011. On December
14, 2011, the court entered an order finding it did have jurisdiction and stating that it
would take all remaining matters under advisement. Subsequently, on September 24,
2012, in response to Torres’ request for a ruling on the remaining issues of his motion to
dismiss, the court entered an order denying Torres’ motion to dismiss and held a bench
trial on the matter. Following the bench trial, the court ruled in favor of the City on six
counts and assessed a $50 fine on each count in addition to court costs. Torres now
appeals the trial court’s denial of his motion to dismiss.
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DISCUSSION AND DECISION
Torres contends that the trial court erred by denying his motion to dismiss for lack
of personal jurisdiction. When a person attacks the court’s jurisdiction over him, he bears
the burden of proof upon that issue by a preponderance of the evidence, unless the lack of
jurisdiction is apparent upon the face of the complaint. Dexter Axle Co. v. Baan USA,
Inc., 833 N.E.2d 43, 48 (Ind. Ct. App. 2005). When reviewing a motion to dismiss for
lack of personal jurisdiction, we apply a de novo standard of review. Id.Torres contends that the trial court erred by denying his motion to dismiss because
the city court lacked personal jurisdiction over him. Particularly, Torres claims that the
citation issued to him by the City was inadequate as a complaint and summons such that
the city court did not acquire jurisdiction over him. In support of this argument, he lists
three inadequacies of the citation: (1) the citation did not contain the signature of the
plaintiff or its attorney as required by Trial Rule 11(A); (2) the citation did not contain a
caption as required by Trial Rule 10(A); and (3) the citation did not contain a proper
summons signed by the Clerk as required by Trial Rules 4(B) and (C).
Proceedings for the violation of a city ordinance are civil in nature. Jewell v. City
of Indianapolis, 950 N.E.2d 773, 777 (Ind. Ct. App. 2011). To that end, Indiana Code
section 34-28-5-1(d)(1) (2009) states that such actions shall be conducted in accordance
with the Indiana Rules of Trial Procedure. Subsection (f) of this statute further clarifies
that the complaint and summons described in Indiana Code section 9-30-3-6 (2007) may
be used for any infraction or ordinance violation.
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Under a prior version of Indiana Code section 34-28-5-1, a panel of this Court
determined that “it is apparent that the legislature intended that legal proceedings for
traffic infractions be conducted consistent with the Indiana Rules of Trial Procedure, but
also that the forms set out in IC 9-30-3-6 satisfy requirements with regard to the
information, complaint, and summons.” Ford v. State, 650 N.E.2d 737, 739 (Ind. Ct.
App. 1995). Here we note that although the Court in Ford specifically referred to traffic
infractions, the rationale applies equally to ordinance violations as both types of actions
are referred to and treated equally in Indiana Code subsections 34-28-5-1(d) and (f). In
addition, the Ford Court explained that although Indiana Code subsections 34-28-5-
1(d)(1) and (f) appear to be inconsistent due to the requirement of adherence to the trial
rules in one and the declaration that the forms in Indiana Code section 9-30-3-6 are
sufficient in the other, they are not conflicting. The Court determined that, even if these
statutory subsections are viewed as conflicting, the more specific provisions of subsection
(f) prevail over the general provisions of subsection (d)(1). Id.Indiana Code section 9-30-3-6(c) states that “the complaint and summons shall be
in substantially the following form.” We have previously determined that, based upon
the word “substantially” as used in the statute, strict compliance with the statutory form is
not required. Hamill v. City of Carmel, 757 N.E.2d 162, 164-65 (Ind. Ct. App. 2001),
trans. denied. Rather, substantial compliance, which has been defined as “compliance to
the extent necessary to assure the reasonable objectives of the statute are met,” is
required. Id. at 165.
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In the instant case, Torres complains first that the citation did not contain the
signature of the plaintiff or its attorney as required by Trial Rule 11(A). We note that the
statutory form supplied in Indiana Code section 9-30-3-6 does not require a signature by
the plaintiff or its attorney but rather contains a place for an officer’s signature. The
citation issued to Torres did not contain a signature but did contain the name and phone
number of the city inspector.
Secondly, Torres asserts that the citation did not contain a caption containing the
name of the court, the title of the action, the file number, the names of the parties, and a
designation such as “complaint,” as required by Trial Rule 10(A). The statutory form, on
the other hand, contains the name of the court and the county, the cause or docket
number, the name of the party to whom the ticket is being issued, and the title
“Complaint and Summons.” See Ind. Code § 9-30-3-6(c). Similarly, the citation issued
to Torres indicates that the matter is to be heard in the Hammond City Court, the citation
is titled “City of Hammond Notice of Municipal Ordinance Violation Citation,” and
below the title, it states: “TO: HUGO TORRES, 1014 REESE ST, WHITING, IN
46394.” Appellant’s App. p. 7.
Finally, Torres claims that the citation did not contain a summons including the
signature of the Clerk; name and address of the person being served; name, address, and
phone number of the court; cause number; title of the case; name, address, and phone
number of party seeking service; time period within which to respond and notice of
judgment by default for failing to do so all as required by Trial Rules 4(B) and (C). The
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statutory form contains a place for a clerk’s signature, name and address of the person
being served, name of the court, cause number, and a place for the officer’s signature. As
we have already discussed, the citation issued to Torres contained his name and address,
the name and address of the court, and the name and phone number of the city inspector.
Although the citation did not contain a clerk’s signature, we note that only substantial,
not strict, compliance with the statutory requirements is needed. See Hamill, 757 N.E.2d
at 165. Moreover, Torres has not alleged, and we do not find, that this technical defect
misled him as to the nature of the offense charged. We fail to see how Torres was
prejudiced by the lack of this signature. See Kirts v. State, 689 N.E.2d 756, 758 (Ind. Ct.
App. 1997) (stating that where speeding ticket lacked clerk’s signature, dismissal not
required because offender had not been misled as to nature of offense charged and was
not prejudiced by formal defect).
Thus, the citation issued to Torres substantially complied with the statutory
requirements. That is to say, none of the technical defects alleged by Torres, including
the lack of a clerk’s signature, had the effect of preventing the reasonable objectives of
Indiana Code section 9-30-3-6 from being met. The purpose of the form set forth in
Indiana Code section 9-30-3-6 is to inform the offender of the nature of the violation and
to indicate to the offender when he is to appear in court. Hamill, 757 N.E.2d at 165. The
citation received by Torres is titled “Notice of Municipal Ordinance Violation Citation”
and is addressed to Torres with his full name and address. Appellant’s App. p. 7.
Additionally, it lists and describes each of the eleven alleged violations and informs
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Torres that he has ten days to bring the property into compliance. It also states the
possible results of failing to bring the property into compliance. The citation further
states the name of the court, the address of the court, and the date and time of Torres’
court date. Finally, the citation contains the inspector’s name and phone number and
instructs questions to be directed to the inspector.
Torres calls for strict compliance with the trial rules; however, that is not the
standard. The standard is substantial compliance with the statute. The citation here was
in substantial compliance with the required statutory form and clearly informed Torres of
the alleged violations, the time and date for his court appearance, and the address of the
court. The citation also provided Torres with the name and number of a person to contact
if he had questions. Thus, the form of the citation did not prevent the city court from
obtaining personal jurisdiction over Torres. See Hamill, 757 N.E.2d at 164-65 (stating
that strict compliance with Indiana Code section 9-30-3-6 is not required for effective
service of process and valid personal jurisdiction of the trial court).
Torres’ brief also hints at allegations that the trial court did not have personal
jurisdiction. Dissatisfied with the result in city court, Torres filed a request for trial de
novo in the Lake County Superior Court pursuant to Trial De Novo Rule 2(A). With
regard to such a request, Trial De Novo Rule 2(C) states:
The clerk of the circuit court shall docket and assign the request to a circuit
or superior court as an infraction or ordinance violation proceeding. The
court to which the request is assigned has full jurisdiction of the case and
of the person of the defendant from the time the request for the trial de
novo is filed with the clerk of the circuit court.
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(Emphasis added). Therefore, Torres submitted himself to the jurisdiction of the trial
court when he filed his request for trial de novo on September 1, 2011.
In addition, Torres appears to argue that the City’s alleged failure to comply with
Trial De Novo Rule 2(E) requiring the municipal counsel to file a duplicate ordinance
complaint and summons with the clerk of the circuit court in some way affects the court’s
jurisdiction over him. The filing required by Trial De Novo Rule 2(E) does not bestow
upon the court jurisdiction over Torres. Rather, as previously stated, jurisdiction was
established immediately upon Torres’ filing of his request with the clerk. See Trial De
Novo Rule 2(C). Trial De Novo Rule 2(E) merely provides the trial court with
information about the action and/or gives the trial court an indication as to whether the
city plans to proceed with the action in the trial court. Further, we note that Torres
provided a copy of the citation for municipal ordinance violations to the clerk when he
submitted it as Exhibit B to his request for trial de novo. See Appellant’s App. pp. 7-8.
Moreover, Torres cites no case law in support of his assertion, and he claims no harm or
prejudice from this alleged error.
CONCLUSION
For the reasons stated, we conclude that the trial court did not err by denying
Torres’ motion to dismiss.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
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