Daniel Hoagland v. Town of Clear Lake (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Mar 15 2017, 9:14 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daniel Hoagland Jeffrey P. Smith
Fremont, Indiana David K. Hawk
Hawk, Haynie, Kammeyer &
Smith, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Hoagland, March 15, 2017
Appellant-Defendant, Court of Appeals Case No.
76A04-1603-SC-574
v. Appeal from the Steuben Circuit
Court
Town of Clear Lake, The Honorable Allen N. Wheat,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
76C01-1503-SC-255
Mathias, Judge.
[1] The Steuben Circuit Court entered a judgment in favor of defendant Daniel
Hoagland (“Hoagland”). Hoagland appeals the judgment pro se arguing that
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the trial court lacked jurisdiction and erred when it failed to dismiss the Town
of Clear Lake’s (“the Town”) notice of claim. The Town cross-appeals and
claims that the trial court’s conclusion that Hoagland is not liable for trash
collection charges is not supported by the evidence.
[2] We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[3] The Hoagland Family Limited Partnership (“the HFLP”) owns three properties
in the Town.1 Hoagland and his wife reside in one of the three properties, and
their residence is also the recorded address for the HFLP.
[4] The Town charges $135 annually for trash collection and the Town’s clerk-
treasurer is responsible for sending invoices for the services and collecting
payment. Specifically, the Town’s ordinance section 52.08 provides in pertinent
part,
(A) The Town may award a contract for the Collection,
Removal, and Disposal of Solid Waste and Recyclables and shall
pay the contracting person out of general taxation, service rates
and charges or through a combination of these methods.
(B) It is hereby determined that a just and reasonable charge for
the service shall be set from time to time by the Town Council,
which charge shall be due and payable in advance, whether
1
Only two of the three HFLP properties are at issue in this appeal.
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annually, quarterly or monthly. The current annual rate shall be
$135 as established in 2009 by Ordinance 2009-03. The Town
Clerk-Treasurer shall collect the charges from each owner and to
this end shall set up and establish billing and collection
procedures.
(C) If any rate, as established by the Town Council and to be
paid by the user or owner, is not paid within 15 days after the
payment is due, the amount thereof, together with a penalty of
10% and a reasonable attorney’s fee may be recovered by the
Town in a civil action in the name of the Town.
Appellant’s App. p. 24.
[5] Historically, Hoagland was personally billed, and he paid the trash collection
invoices for the three properties owned by the HFLP. However, Hoagland
failed to pay the 2015 invoice, which was due on January 15, 2015.
[6] Hoagland asked the Town to waive the 2015 trash collection charges for the
three properties because the Town’s trash collection contractor damaged a tree
on one of his properties in 2014. The Town refused to waive the amount owed
for sanitation in 2015 and instructed Hoagland to resolve his claim for the
damaged tree with the contractor. Hoagland informed the Town that he would
not pay the 2015 sanitation invoices for the three properties because he believed
the Town was at least partially responsible for the damage to the tree.
[7] In March 2015, the Town initiated a small claims action against Hoagland and
filed a notice of claim in Steuben Circuit Court. The Town requested a
judgment in the amount of $297 for unpaid trash collection invoices for two of
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the three HFLP properties. Specifically, the Town sought $135 for each
property plus a 10% penalty as authorized under the Town’s ordinance. One of
the two properties was also Hoagland’s residence.
[8] A hearing was held on July 21, 2015. At the hearing, Hoagland proceeded pro
se and argued that he was not the owner of the properties at issue; therefore, he
was not personally liable for the trash collection invoices. Per Hoagland’s
request, the trial court continued the hearing to allow Hoagland to obtain
additional discovery.
[9] On September 8, 2015, Hoagland filed a motion to dismiss the Town’s notice of
claim pursuant to Trial Rules 12(B)(6), and 41(B) and (E). Among other claims,
Hoagland noted that he is not the owner of the properties and asserted that he is
not a real party in interest. Consequently, he argued that he established as a
matter of law that the Town cannot prevail on its notice of claim, and the trial
court should grant his motion to dismiss. Hoagland’s motion was denied
without a hearing.
[10] The small claims trial was concluded on January 8, 2016. Shortly thereafter, the
small claims court entered a judgment in Hoagland’s favor and issued the
following findings of fact:
1. The case at bar involves an unpaid trash collection fee in the
amount of $297.00 which Town billed directly to Hoagland for
trash collection services provided to 804 South Clear Lake Drive
and 1114 South Clear Lake Drive for calendar year 2015.
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2. Town has entered into a contract with Sanitation Solutions,
LLC to provide trash collection services for residences located
within the jurisdictional limits of Town.
3. 804 South Clear Lake Drive and 1114 South Clear Lake Drive
are located within the jurisdictional limits of Town.
4. Property owners are assessed an annual trash collection fee in
the total amount of $135.00.
5. This annual trash collection fee of $135.00 has not been
increased by Town since 2009.
6. Hoagland contends that he is not responsible for paying
Plaintiff’s Exhibits 1 and 2 for the reason that he did not own
these two (2) parcels of real estate on January 1, 2015.
7. Rather, Hoagland’s argument continues, the titles to 804 South
Clear Lake Drive and 1114 South Clear Lake Drive appear upon
the records of the Steuben County Recorder to be in the name of
the Hoagland Family Limited Partnership, such being a separate
legal entity. This is not disputed by Town.
8. The Court concludes that the two (2) parcels of real estate
identified on Plaintiff’s Exhibits 1 and 2 were both titled in the
name of the Hoagland Family Limited Partnership on January 1,
2015.
9. Clear Lake Ordinance 52.08 (B) provides, in relevant part,
that:
“The Town Clerk Treasurer shall collect the charges from
each owner and to this shall set up and establish billing
and collection procedures.” (Emphasis added).
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10. The Court concludes that Hoagland, not being the owner of
the parcels of real estate located at 804 South Clear Lake Drive
and 1114 South Clear Lake Drive, cannot be sued in his
individual capacity unless he has in some manner obligated
himself to become personally liable for payment of the two (2)
unpaid trash collection invoices all as set forth on Plaintiff’s
Exhibits 1 and 2.
11. Hoagland was aware that the trash collection fees for year
2015 on the two (2) subject parcels of real estate had not been
paid.
12. Hoagland, by email sent January 17, 2015, conditionally
promised Town to pay the trash collection fees owed to Town for
year 2015.
13. The condition precedent which Hoagland expected Town to
perform was to compensate him for damage to a tree located at
1114 South Clear Lake Drive which was caused by the actions of
Town’s trash collection contractor -Sanitation Solutions, LLC.
14. Town rejected Hoagland’s conditional offer to pay trash
collection fees for year 2015. Hoagland was not compensated by
Town for the damaged tree.
15. Hoagland, therefore, cannot be held individual liable for the
unpaid 2015 trash collection fees on a theory of implied contract
or promissory estoppel.
Appellant’s App. pp. 8-11 (record citations and footnote omitted). The small
claims court issued a judgment in Hoagland’s favor.
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[11] Even though the court entered judgment in his favor, Hoagland filed a motion
to correct error. He again argued the small claims court lacked jurisdiction to
enter the judgment and was void ab initio. His motion was denied on February
16, 2016.
[12] Proceeding pro se, Hoagland timely filed a notice of appeal. The Town has filed
a cross-appeal and argues that the small claims court erred when it concluded
that Hoagland was not personally liable for the trash collection invoices for the
two HFLP properties.
Hoagland’s Appeal
[13] Hoagland appeals the judgment entered in his favor and against the Town. It is
well-settled that a party cannot secure appellate review of a favorable decision
unless he is in some manner aggrieved thereby. Nehl Beverage Co. of Indianapolis
v. Petri, 537 N.E.2d 78, 82 (Ind. Ct. App. 1989), trans. denied; Hughes v. State,
473 N.E.2d 630, 632 (Ind. Ct. App. 1985), trans. denied; see also Brumley v.
Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 770, 780 (Ind. Ct. App. 2011)
(“A party cannot appeal from a judgment favorable to him.”).
[14] Hoagland’s decision to appeal the judgment entered in his favor seems to be
driven by his angst over the trial court’s finding number 3, which provides that
“804 South Clear Lake Drive and 1114 South Clear Lake Drive are located
within the jurisdictional limits of Town.” See Appellant’s App. p. 9. In his brief,
Hoagland repeatedly claims that this finding is not supported by evidence, and
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that the Town could use the finding against him in separate, ongoing litigation
between the parties.2
[15] Contrary to Hoagland's assertion, the Town did present evidence via the
Town’s clerk-treasurer that the properties are located within the jurisdictional
limits of the Town. Hoagland did not present any contrary evidence.
[16] For these reasons, that portion of the judgment at issue that pertains to
Hoagland's appeal is affirmed.3
The Town’s Cross-Appeal
[17] The Town cross-appeals and argues that the trial court erred when it concluded
that Hoagland was not personally liable for the trash collection invoices. The
Town argues that Hoagland personally paid the invoices in years prior to this
dispute, and, under section 52.08(C) of the Town’s ordinance, the Town had
the right to bill Hoagland for the trash collection fees on his properties. As he
did at trial, Hoagland argues that he is not liable for the fees because he does
not own the properties.
[18] At trial, the Town presented evidence that in prior years, Hoagland had paid
the trash collection invoices for the properties owned by the HFLP from either
2
See Town of Clear Lake v. Hoagland Family Limited Partnership, No. 76A05-1606-PL-1241 (pending appeal
concerning the Town’s decision to penalize the HFLP for failing to connect its properties to the Town’s
sewer system).
3
Hoagland’s claims that the trial court lacked jurisdiction to issue the judgment lack merit. The Steuben
Circuit Court unquestionably had subject matter jurisdiction over the small claims case. See Ind. Code § 33-
29-1-1.5 (2011).
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the HFLP checking account or his personal checking account. Without citation
to authority, the Town argues that this fact compels the conclusion that
Hoagland has established an open account with the Town for trash collection
services, and therefore, he is contractually obligated to pay the annual charges.
[19] “A party waives any issue for which it fails to develop a cogent argument or
support with adequate citation to authority.” Zoller v. Zoller, 858 N.E.2d 124,
127 (Ind. Ct. App. 2006) (citation omitted). Without better citation to authority
in support of the Town’s argument that Hoagland is liable for the trash invoices
because he has intermingled his prior payments from personal and HFLP
accounts, we decline to address the argument. Moreover, interpretation of the
Town's Ordinance allows us to resolve of this appeal.
[20] The Town’s Ordinance, section 52.08(B) provides that the Town’s clerk-
treasurer “shall collect the charges from each owner and to this end shall set up
and establish billing and collection procedures.” Appellant’s App. p. 24
(emphasis added). The trial court relied on this language and the agreed fact
that the HFLP owns the properties at issue to conclude that Hoagland is not
personally liable for the trash collection charges for those properties.
[21] The Town argues that the trial court failed to consider the entire ordinance
which was admitted at trial and contends that Hoagland is personally liable for
the trash collection charges under section 52.08(C) of the ordinance. In
pertinent part, section 52.08(C) provides that:
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if any rate, as established by the Town Council and to be paid by
the user or owner, is not paid within 15 days after the payment is
due, the amount thereof, together with a penalty of 10% and a
reasonable attorney’s fee may be recovered by the Town in a civil
action in the name of the Town.
Id. (emphasis added).
[22] The rules of statutory construction apply to construe an ordinance. Kaser v.
Barker, 811 N.E.2d 930 (Ind. Ct. App. 2004), trans. denied. The primary rule of
statutory construction is to ascertain and give effect to the intent of the statute's
drafters. City of Jeffersonville v. Hallmark at Jeffersonville, L.P., 937 N.E.2d 402, 406
(Ind. Ct. App. 2010), trans. denied. The best evidence of that intent is the
language of the statute. Id. We will interpret the ordinance as a whole and give
its words their plain, ordinary, and usual meaning. Lucas Outdoor Advertising,
LLC v. City of Crawfordsville, 840 N.E.2d 449, 452 (Ind. Ct. App. 2006), trans.
denied.
[23] Applying the rules of construction to the plain language of the ordinance, and
considering the ordinance and its purpose as a whole, we conclude that a “user”
is an individual, other than an owner, who uses the trash services provided by
the Town. Hoagland resides at the property owned by the HFLP located at
1114 South Clear Lake Drive and the property at 804 South Clear Lake Drive is
a rental property. We can reasonably conclude that Hoagland has availed
himself of the trash services provided by the Town at both properties, as he has
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not claimed otherwise,4 and therefore, he qualifies as a “user” of the trash
collection services under section 52.08(C) of the Town’s ordinance. Indeed,
Hoagland's intermingling of HFLP and personal funds in prior payments on
these accounts indicate that he was a "user" under the Ordinance. For this
reason, we conclude that the trial court erred when it found that Hoagland
cannot be held personally liable for the trash collection charges at the two
HFLP properties.
[24] We therefore reverse and remand this case to the trial court with instructions to
enter a judgment in favor of the Town for any unpaid 2015 trash collection
charges for the HFLP properties together with accrued interest.
Attorney Fees
[25] Finally, the Town requests attorney fees and claims that Hoagland’s motion to
dismiss the Town’s cross-appeal is frivolous and unreasonable. Further, the
Town argues that Hoagland’s appeal is frivolous and he appealed to harass the
Town. Hoagland disputes these claims and argues that he is appealing because
the Town misused the trial court’s finding that his properties were located
within the jurisdictional limits of the Town in separate litigation concerning
whether Hoagland must connect to the Town’s sewer system.
4
Hoagland cites to the Town’s clerk-treasurer’s testimony that she did not personally witness trash collection
at Hoagland’s residence. Appellant’s Reply Br. at 47. However, Hoagland did not claim that he did not avail
himself of the trash collection services provided by the Town.
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[26] Pursuant to Indiana Appellate Rule 66(E), this court “may assess damages if an
appeal, petition, or motion, or response, is frivolous or in bad faith. Damages
shall be in the Court’s discretion and may include attorneys’ fees.” Our court
exercises “extreme restraint in awarding appellate damages because of the
potential chilling effect upon the exercise of the right to appeal.” Kalwitz v.
Kalwitz, 934 N.E.2d 741, 755 (Ind. Ct. App. 2010).
[27] Hoagland’s decision to appeal the judgment entered in his favor was certainly
unwise, as it opened the door for the Town's cross-appeal. However, given the
high-stakes nature of the pending sewer litigation and Hoagland’s concern that
the finding in this case affects that litigation, we cannot conclude that his appeal
is vexatious. Importantly, the Town decided to cross-appeal in lieu of (or in
addition to) pursuing other remedies such as billing the HFLP directly for the
trash collection charges. For these reasons, we deny the Town’s request for
appellate attorney fees.
Conclusion
[28] We affirm the trial court's finding concerning the location of the parcels within
the Town. We reverse the trial court’s judgment that Hoagland is not personally
liable for the trash collection fees at issue and we conclude that Hoagland is
personally liable for the trash collection charges for his residence at 1114 Clear
Lake Drive and for the property located at 804 South Clear Lake Drive under
section 52.08 of the Town’s ordinance.
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[29] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Baker, J., and Pyle, J., concur.
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