David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel ( 2016 )

FILED
Aug 22 2016, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Nathaniel J. Heber Pamela G. Schneeman
Atlanta, Georgia Office of Corporation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Heber, August 22, 2016
Appellant-Plaintiff, Court of Appeals Cause No.
49A02-1603-PL-549
v. Appeal from the Marion Superior
Court
Indianapolis Metropolitan Police The Honorable James A. Joven,
Department, and City of Judge
Indianapolis Office of Trial Court Cause No.
Corporation Counsel, 49D13-1601-PL-158
Appellees-Defendants.
Barnes, Judge.
Case Summary
[1] David Heber appeals the trial court’s dismissal of his complaint against the
Indianapolis Metropolitan Police Department (“IMPD”) and the Office of
Corporation Counsel of the City of Indianapolis (“OCC”) (collectively “the
Appellees”). We reverse and remand.
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Issue
[2] The sole restated issue is whether the trial court properly concluded that the
Appellees could not be sued under the Indiana Access to Public Records Act
(“APRA”).
Facts
[3] The facts as alleged in Heber’s complaint are that, on May 16, 2015, Heber and
another individual were robbed at gunpoint in Indianapolis. IMPD
investigated the case, which resulted in charges being filed against an individual
six days later. Heber requested and received from IMPD a copy of the Incident
Report for the robbery generated on May 16, 2015.
[4] On June 26, 2015, Heber filed a request with IMPD and the OCC for records
related to the robbery aside from the initial Incident Report, pursuant to the
APRA. The OCC’s public access counselor, Samantha DeWester, denied this
request, stating that Heber had failed to specify which records he was seeking
with reasonable particularity. On July 15, 2015, Heber filed a second, more
detailed request for records related to the robbery. DeWester denied this
second request, again on the basis that it lacked reasonable particularity.
[5] On August 2, 2015, Heber filed a complaint with the Indiana Public Access
Counselor, Luke Britt, with respect to the Appellees’ failure to provide him with
the requested records. On September 15, 2015, Britt filed an advisory opinion
stating his belief that the Appellees violated the APRA by not timely
responding to the June 26, 2015 records request and that they were not justified
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in denying either request on the basis of an alleged lack of reasonable
particularity.1 After issuance of this advisory opinion, the Appellees did not
provide the requested records to Heber.
[6] On December 26, 2015, Heber filed a complaint in the trial court against the
Appellees, seeking release of the requested records, along with an award of
reasonable costs, attorney fees, and civil penalties. On January 19, 2016, the
Appellees filed a motion to dismiss Heber’s complaint. The motion alleged
solely that the Appellees were not entities that could be sued under the APRA.
The trial court granted the motion to dismiss. Heber now appeals.
Analysis
[7] The Appellees’ motion to dismiss alleged that Heber’s complaint failed to state
a claim upon which relief could be granted, pursuant to Indiana Trial Rule
12(B)(6). We review a trial court’s grant of such a motion de novo. Lockhart v.
State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015). We accept as true the facts
alleged in a complaint when assessing a ruling on a motion to dismiss,
considering the pleadings in a light most favorable to the plaintiff and drawing
every reasonable inference in favor of the plaintiff. Id. We will affirm dismissal
1
The advisory opinion noted that the records sought by Heber could fall under an exception for law
enforcement investigatory records under the APRA, but if they did so, IMPD and the OCC should have so
claimed in its denials of Heber’s requests.
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of a complaint under Trial Rule 12(B)(6) only if the facts alleged in the
complaint are incapable of supporting relief under any set of circumstances. Id.
[8] The Appellees have not filed a brief. Instead, they have filed a “stipulation”
conceding that the granting of the motion to dismiss should be reversed, in light
of our holding in Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. App. 2014), trans.
denied, cert. denied. In that case, we squarely held that the Indianapolis Police
Department, the predecessor to IMPD, was a “public agency” properly subject
to suit under the APRA for violations of that act. Lane-El, 13 N.E.3d at 866.
Specifically, the APRA includes within its definition of “public agency” “[a]ny
law enforcement agency . . . .” Ind. Code § 5-14-3-2(q)(6); see also Lane-El, 13
N.E.3d at 866. Furthermore, a “public agency” includes any “county,
township, school corporation, city, or town, or any board, commission,
department, division, bureau, committee, office, instrumentality, or authority of
any county, township, school corporation, city, or town . . . .” I.C. § 5-14-3-
2(q)(2)(A); see also Lane-El, 13 N.E.3d at 866 n.3. The OCC falls under this
definition.
[9] The Appellees failed to disclose Lane-El in its legal memorandum to the trial
court accompanying its motion to dismiss. There is no contrary authority
regarding the propriety of suing entities such as the Appellees under the APRA.
The decisions of this court are binding upon trial courts. See Lincoln Utilities,
Inc. v. Office of Util. Consumer Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App.
1996), trans. denied. The United States Supreme Court denied certiorari in Lane-
El on April 27, 2015. Thus, the case was final for nearly eight months before
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the Appellees filed their motion to dismiss, which claimed solely, and contrary
to Lane-El, that they could not be sued under the APRA. It is clear, as the
Appellees have stipulated, that the granting of the motion to dismiss must be
reversed and this case remanded for further proceedings.
[10] Whether Heber ultimately will be successful in proving the Appellees violated
the APRA remains to be seen. However, the Appellees’ motion to dismiss,
which failed to cite controlling contrary authority, and the erroneous granting
of that motion have necessitated expense and significant delay in resolution of
the case. Under Indiana Appellate Rule 67, this court may sua sponte award
appellate attorney fees to a prevailing party if an appeal “is ‘permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
delay.’” In re Walter Penner Trust, 22 N.E.3d 593, 602 (Ind. Ct. App. 2014)
(quoting GEICO v. Rowell, 705 N.E.2d 476, 483 n.12 (Ind. Ct. App. 1999)),
trans. denied. Although we commend the Appellees for now conceding that the
motion to dismiss must be reversed, the fact remains that the motion was
granted and Heber had to pursue this appeal because of a wholly meritless and
possibly frivolous argument by the Appellees. As such, we conclude that an
award of appellate attorney fees to Heber is appropriate. We remand for the
trial court to calculate an appropriate amount for such an award.2
2
Appellate Rule 67(C) provides in part, “Costs against any governmental organization, its officers and
agencies, shall be imposed only to the extent permitted by law.” Indiana Code Section 5-14-3-9(i) provides
that a court “shall” award attorney fees to a plaintiff who substantially prevails in an APRA lawsuit if the
plaintiff first sought and received an advisory opinion from the public access counselor before filing suit.
Although it is unclear yet whether Heber will substantially prevail on the merits of his APRA claim, we
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Conclusion
[11] We reverse the granting of the Appellees’ motion to dismiss and remand for
further proceedings consistent with this opinion. Additionally, we remand for
the trial court to calculate an appropriate amount of appellate attorney fees that
Heber is entitled to collect from the Appellees.
[12] Reversed and remanded.
Riley, J., and Bailey, J., concur.
conclude it is wholly consistent with this statutory provision, as well as the overarching purposes of the
APRA, to require the Appellees to pay Heber’s attorney fees for this appeal.
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