Stephan M. Poiry v. City of New Haven, Indiana ( 2018 )

FILED
Nov 08 2018, 7:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Ann M. Trzynka
Stone Law Office & Legal Research Andrew P. Simmons
Anderson, Indiana Van Gilder & Trzynka, P.C.
Fort Wayne, Indiana
Loren K. Allison
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephan M. Poiry, November 8, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-MI-1066
v. Appeal from the
Allen Superior Court
City of New Haven, Indiana, The Honorable
Appellee-Defendant. Craig J. Bobay, Judge
Trial Court Cause No.
02D02-1711-MI-1046
Kirsch, Judge.
[1] Stephan M. Poiry (“Poiry”) appeals the trial court’s order granting summary
judgment in favor of the City of New Haven, Indiana (“the City”) and the
denial of his motion to correct error. Poiry raises the following issue for our
review: whether the trial court erred when it granted summary judgment to the
City and denied his motion to correct error because Poiry failed to file a bond
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simultaneously with his verified petition for judicial review of the City of New
Haven Police Department’s Merit Board decision.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] Poiry was and currently is a police officer employed with the City of New
Haven Police Department. On August 7, 2017, the Chief of Police for the City
filed disciplinary charges against Poiry. Appellant’s App. Vol. II at 35-36. On
September 26, 2017, the New Haven Police Department Merit Board (“the
Board”) conducted a hearing on the disciplinary charges. The parties attended
the hearing with their attorneys, testimony was heard, and exhibits introduced.
On September 28, 2017, the Board issued its ruling, in which it found that the
disciplinary charges had been proven and that Poiry should be demoted in rank.
Id. at 44-46. Poiry filed an appeal with the Board on September 28, 2017,
which the Board denied on October 27, 2017. Id. at 55.
[4] On November 16, 2017, Poiry filed a complaint against the City seeking judicial
review of the Board’s decision. Poiry did not post a bond at the time he filed
his complaint. Poiry knew that the statute for appeals from municipal merit
boards applied and was “fully aware that a bond was required as part of [the]
filing for this judicial review.” Id. at. 110, 145. At the time that the complaint
was filed, Poiry inquired with employees of the Allen County Clerk’s Office
(“Clerk’s Office”) about posting a bond and was told that the Clerk’s Office
would not accept a bond without a judge setting the amount. Id. at 110, 146.
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[5] After Poiry filed his complaint, he did not file anything with the trial court to
attempt to set a bond amount. On January 11, 2018, Poiry filed a motion for
summary judgment against the City, alleging that the City failed to file a
transcript pursuant to Indiana Code section 36-8-3.5-18(b)(5). On January 29,
2018, the City filed a motion to dismiss based on Poiry’s failure to post a bond
pursuant to Indiana Code section 36-8-3.5-18(b)(4). A case management
conference was held on the same day, and after the conference, Poiry went to
the Clerk’s Office, where he spoke to a deputy clerk about posting a bond and
was told the court had to determine the bond amount. Id. at 115. The deputy
clerk then allowed Poiry to post whatever amount Poiry “wished,” and Poiry
paid the sum of $100. Id. at 116-17.
[6] On March 8, 2018, the trial court heard oral arguments on both motions filed
by the parties. Because matters outside the pleadings were presented in the
City’s motion to dismiss, the trial court treated the motion as a motion for
summary judgment. Id. at 11. On April 5, 2018, the trial court issued its order
granting summary judgment in favor of the City. Id. at 8-16. Poiry filed a
motion to correct error on April 20, 2018. The trial court denied Poiry’s
motion on May 23, 2018. Poiry now appeals.
Discussion and Decision
[7] Poiry is appealing after a denial of a motion to correct error. Generally, a trial
court’s ruling on a motion to correct error is reviewed for an abuse of discretion.
Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App. 2017).
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An abuse of discretion occurs when the trial court’s decision is against the logic
and effect of the facts and circumstances before the court or if the court has
misinterpreted the law. Id. However, where the issues raised in the motion are
questions of law, the standard of review is de novo. City of Indianapolis v. Hicks,
932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. Here, Poiry’s motion to
correct error raised questions regarding the trial court’s interpretation of a
statute. Because the interpretation of a statute presents questions of law, our
standard of review is de novo. Watson, 70 N.E.3d at 384.
[8] Poiry’s motion to correct error alleged that the trial court had erred when it
granted summary judgment in favor of the City. When reviewing the grant of
summary judgment, our standard of review is the same as that of the trial court.
Webb v. City of Carmel, 101 N.E.3d 850, 860 (Ind. Ct. App. 2018) (citing FLM,
LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012), trans.
denied). We stand in the shoes of the trial court and apply a de novo standard of
review. Id. Our review of a summary judgment motion is limited to those
materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E.
Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary
judgment is appropriate only where the designated evidence shows there are no
genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. T.R. 56(C). We view the pleadings and designated materials in
the light most favorable to the non-moving party. Webb, 101 N.E.3d at 860.
Additionally, all facts and reasonable inferences from those facts are construed
in favor of the non-moving party. Id. (citing FLM, 973 N.E.2d at 1173). The
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initial burden is on the moving party to demonstrate the absence of any genuine
issue of fact as to a determinative issue, at which point the burden shifts to the
non-movant to come forward with contrary evidence showing an issue for the
trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[9] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. Henderson v.
Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.
denied. We will affirm upon any theory or basis supported by the designated
materials. Id. When a trial court grants summary judgment, we carefully
scrutinize that determination to ensure that a party was not improperly
prevented from having his or her day in court. Id.
[10] Where, as here, the interpretation of a statute is at issue, such statutory
interpretation presents a pure question of law for which summary judgment
disposition is particularly appropriate. Miller v. Town Bd. of Sellersburg, 88
N.E.3d 217, 218 (Ind. Ct. App. 2017) (citing Pike Tp. Educ. Found., Inc. v.
Rubenstein, 831 N.E.2d 1239, 1241 (Ind. Ct. App. 2005)). The first step in
interpreting a statute is to determine whether the legislature has spoken clearly
and unambiguously on the point in question. Id. (citing Rheem Mfg. Co. v. Phelps
Heating & Air Conditioning Inc., 746 N.E.2d 941, 947 (Ind. 2001)). When a
statute is clear and unambiguous, we need not apply any rules of construction
other than to require that the words and phrases be taken in their plain,
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ordinary, and usual sense. Id. at 219 (citing Sees v. Bank One, Ind., N.A., 839
N.E.2d 154, 157 (Ind. 2005)).
[11] Poiry argues that the trial court erred in granting summary judgment in favor of
the City and in denying his motion to correct error. He asserts that Indiana
Code section 36-8-3.5-18(b)(4) is ambiguous in that it requires that a bond be
filed but does not state in what amount the bond should be and how the
required bond is to be determined. Because of this ambiguity, Poiry contends
that he was not aware of the amount he should pay to satisfy the bond
requirement when he filed his appeal of the commission’s decision.
[12] In the present case, Poiry filed an appeal with the trial court after he had been
disciplined by the Board. When he filed his appeal, he was not aware of the
required bond amount, so he did not file a bond simultaneously with his appeal.
At the time that summary judgment was entered by the trial court, a bond
amount had still not been determined.
[13] When a member of a municipality’s police or fire department is aggrieved by a
decision of the commission to suspend the member for more than ten days,
demote the member, or dismiss the member, he or she may appeal the decision
to the circuit or superior court of the county where the municipality is located.
Ind. Code § 36-8-3.5-18(a). When the plaintiff files his complaint, a bond must
be filed, and Indiana Code section 36-8-3.5-18 states in pertinent part:
(b) The appeal shall be made according to the Indiana rules of
trial procedure with the following exceptions:
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....
(4) The plaintiff must file a bond at the time of filing the
complaint conditioned on the plaintiff prosecuting the appeal to a
final determination and paying the court costs incurred in the
appeal.
Ind. Code § 36-8-3.5-18(b)(4). While subsection (b)(4) is clear that a bond must
be filed when an appeal is filed, the statute is not clear or unambiguous in
directing how that bond is to be determined and in what amount it is to be paid.
[14] Under Indiana Code section 34-49-1-1, which controls the fixing of bonds by
judges, it states that the statutory section applies whenever “any bond . . . is
required in connection with any civil action or proceeding brought in any court
in Indiana” and “in the absence of any provision of law specifying the amount
of the bond.” Ind. Code § 34-49-1-1(a). When these conditions apply, the
statute provides that “the judge of the court shall fix the penalty is an amount
that the judge considers adequate, but not less than $100.” Ind. Code § 34-49-1-
1(b) (emphasis added). Here, a bond was required, pursuant to Indiana Code
section 36-8-3.5-18, in connection with Poiry’s appeal to the trial court, which
was a civil action brought in an Indiana court, and as discussed above, Indiana
Code section 36-8-3.5-18 does not contain a provision specifying the amount of
bond to be filed. Therefore, in accordance with Indiana Code section 34-49-1-
1(b), the judge of the trial court in which Poiry filed his appeal shall fix the bond
in an amount the judge considers adequate, but not less than $100.
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[15] Here, the trial judge never fixed a bond amount. Because the trial court failed
to fix a bond amount, Poiry was unable to pay the bond required under Indiana
Code section 36-8-3.5-18 for his appeal of the Board’s decision. Based on this,
we conclude that the trial court erred when it granted summary judgment in
favor of the City and when it denied Poiry’s motion to correct error. We,
therefore, reverse the trial court and remand with instructions for the trial court
to set a bond amount it considers adequate and a time frame within which the
bond must be posted. If Poiry does not post the bond within the time frame,
the trial court may enter an order dismissing the appeal. If the bond is properly
paid in the amount set by the trial court and within the time frame, the case is
to continue on the merits.
[16] Ind. Code 29-1-7-19, relating to the filing of will contests, includes language
similar to the bond statute in this case. It provides that “[a]t the time of filing”
a will contest, “the plaintiff in the action, or some other person on the plaintiff's
behalf, shall file a bond with sufficient sureties in an amount approved by the
court, conditioned for the due prosecution of the proceedings and for the
payment of all costs if in the proceedings judgment is rendered against the
plaintiff.” This statute requires the filing of the bond at the time the will contest
is filed, but it does not provide a mechanism for determining the amount of the
bond that shall be filed. Instead, it requires that the amount of the bond be
approved by the court.
[17] Interpreting the statute, in Harper v. Boyce, 809 N.E.2d 344, 348 (Ind. Ct. App.
2004), this court explained that the filing of a bond is not a condition precedent
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to the filing of a will-contest complaint, but the plaintiff must file a bond “before
being permitted to proceed with the contest.” In that case, the will contest was
filed without a bond, and the estate filed a motion to set a bond of $2,500. The
trial court granted the motion, but the will contestant failed to file the bond.
The trial court dismissed the will contest, and this court affirmed.
[18] As did the court in Harper, we hold that the filing of a bond is not a “condition
precedent” to filing of an appeal of a police disciplinary action and that failing
to file a bond at the time of filing the appeal cannot be the basis for dismissal.
Dismissal, however, would be appropriate if the plaintiff fails to file a bond after
the amount is set by the trial court.
[19] Reversed and remanded with instructions.
Vaidik, C.J., and Riley, J., concur.
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