Robert J. Fiedler and Dianne C. Fiedler v. LaGrange County Health Department

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 04 2013, 5:34 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANTS PRO SE: ATTORNEY FOR APPELLEE:
ROBERT J. FIEDLER LATRIEALLE WHEAT
DIANE C. FIEDLER Angola, Indiana
Evergreen Park, Illinois
IN THE
COURT OF APPEALS OF INDIANA
ROBERT J. FIEDLER and )
DIANNE C. FIEDLER, )
)
Appellant-Petitioner, )
)
vs. ) No. 44A03-1303-MI-107
)
LAGRANGE COUNTY )
HEALTH DEPARTMENT, )
)
Appellee-Respondent )
APPEAL FROM THE LAGRANGE SUPERIOR COURT
The Honorable George E. Brown, Judge
Cause No. 44D01-1208-MI-32
October 4, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Robert and Dianne Fiedler (“the Fiedlers”) appeal the trial court’s entry of final
judgment in favor of the LaGrange County Health Department (“the Health Department”)
on the Fiedlers’ action seeking to compel the Health Department to certify that the
Fiedlers’ septic system was functioning satisfactorily. The Fiedlers, acting pro se, now
appeal to this court and present four issues, which we consolidate and restate as:
I. Whether the trial court had personal jurisdiction over the Health Department;
II. Whether the Health Department failed to serve the Fiedlers with the Motion
for Entry of Final Judgment; and
III. Whether the trial court erred in granting the Health Department’s motion for
entry of final judgment.
We affirm.
Facts and Procedural History
On August 13, 2012, the Fiedlers filed in LaGrange Superior Court their “Petition
to Direct LaGrange County Health Department to Issue Certificate that Petitioners’
Septic Tank Soil Absorption System is Functioning Satisfactorily.” On September 27,
2012, the Health Department filed a motion seeking dismissal of the Fiedlers’ petition
under Indiana Trial Rules 12(B)(5),1 12(B)(6),2 and 12(B)(7).3 On November 9, 2012,
the trial court held a hearing on the Health Department’s motion to dismiss.
1
Indiana Trial Rule 12(B)(5) allows for dismissal of a complaint if there is insufficient service of process.
2
Indiana Trial Rule 12(B)(6) allows dismissal of a complaint for failure to state a claim upon which
relief can be granted.
3
Indiana Trial Rule 12(B)(7) allows dismissal of a complaint for failure to join a party needed for just
adjudication.
2
On January 7, 2013, the trial court issued an order granting the Health
Department’s motion to dismiss. In his order, Judge Brown made findings that were
especially informative and drafted to explain his actions to the Fiedlers:
1. [T]he Petition in this case indicates that the Petitioners are seeking to
have the Court mandate the Respondent Health Department to issue a
certificate stating that Petitioner’s septic system is functioning
satisfactorily. The issuance of such a certificate is a discretionary act on
the part of the Respondent; that is, the Respondent may grant or deny a
request to issue such a certificate. While the Court may mandate an
official to perform a discretionary act, the Court does not have the
authority to mandate the official to exercise its discretion in a particular
way. In this case, the LaGrange County Health Department has exercised
its discretion and denied the Petitioners’ request for a certificate stating
that Petitioners’ septic system is functioning satisfactorily. There is,
therefore, nothing for the Court to mandate. While the Petitioners may
have remedies available as a result of the Respondent’s actions, a mandate
suit is not one of them. The Petition does not state a claim upon which
relief may be granted.
2. Apart from the findings above, the service of process by the Petitioners
upon the Respondent was insufficient, and, therefore, the Respondent’s
motion to dismiss, in so far as it seeks relief under Trial Rule 12(B)(5),
should be granted.
Appellee’s App. p. 6.
Thereafter, the Fiedlers failed to file an amended complaint. On February 27,
2013, the Health Department filed a motion for entry of final judgment. The next day,
February 28, 2013, the court entered an order of dismissal, finding, “[o]n January 7, 2013,
the Court entered its Order granting [the Health Department’s] motion to dismiss. [The
Fiedlers] thereafter filed no amended petition. Being duly advised, the Court now enters
final judgment.” Appellants’ App. p. 6. The Fiedlers now appeal.
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I. Personal Jurisdiction
We begin by noting that the Fiedlers’ appellants’ brief is deficient in many
respects. In Indiana, it is well settled that pro se litigants are held to the same standard as
licensed attorneys. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005). The
Fiedlers provide no statements of the applicable standards of review, and have not
supported their arguments with any citation to relevant legal authority, both of which are
required by Indiana Appellate Rule 46(A)(8). A party waives an issue where the party
fails to provide a statement of the standard of review or provide adequate citation to legal
authority. See Ramsey v. Review Bd. of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct.
App. 2003) (holding that the claimant’s substantial noncompliance with rules of appellate
procedure resulted in waiver of his claims on appeal). The Fiedlers have therefore
waived the issues raised in this appeal. Waiver notwithstanding, we will briefly address
the issues raised in the Fiedlers’ appellants’ brief, as best as we are able to discern them.4
The Fiedlers argue on appeal:
On January 7, 2013, [the Fiedlers’ petition] was dismissed by The Superior
Court granting the 12(B)5 relief the Health Department had requested in
their October 3, 2012 Motion to Dismiss which was specifically based on
the Fiedlers’ alleged insufficiency of service upon The Health Department,
which the Fiedler[s] argue results in The Superior Court never having
acquired jurisdiction over The Health Department under TR4(A) in the
cause due to the insufficiency of service.
4
While we will endeavor to address the issues presented, we will not address those arguments that are so
ill-formed and unsupported that we cannot fully understand them. We may not become an advocate for
the Fiedlers and make their case for them. See Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct.
App. 2012); Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).
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[The trial] court continued to lack this jurisdiction on February 27 when
the Clerk’s office accepted the filing on behalf of the Health Department,
and on February 28, 2013 when the Judgment of Dismissal was granted.
The Superior Court had no jurisdiction over The Health Department to rule
on any motion submitted by them.
Appellants’ Br. at 6-7.
Personal jurisdiction is a court’s power to bring a person into its adjudicative
process and render a valid judgment over that person. See Saler v. Irick, 800 N.E.2d 960,
965 (Ind. Ct. App. 2003) (quoting Black’s Law Dictionary 857 (7th ed. 1999)). “The
existence of personal jurisdiction over a defendant is a constitutional requirement in
rendering a valid judgment, mandated by the Due Process Clause of the Fourteenth
Amendment.” Id. When we review questions of whether personal jurisdiction exists, we
use a de novo standard of review. Id.
The Fiedlers are correct in their assertion that ineffective service of process
prevents a trial court from having personal jurisdiction over a defendant and that a
judgment entered by the trial court over such a defendant is void. See Thomison v. IK
Indy, Inc., 858 N.E.2d 1052, 1055 (Ind. Ct. App. 2006). Importantly for this case,
however, a defendant can waive the lack of personal jurisdiction and submit itself to the
court’s jurisdiction by responding or appearing and failing to contest the lack of
jurisdiction. See Ellis v. M & I Bank, 960 N.E.2d 187 (Ind. Ct. App. 2011) (providing
that a defendant can waive a lack of personal jurisdiction and submit to the jurisdiction of
the court by responding or appearing and failing to raise the issue of lack of jurisdiction);
Harris v. Harris, 922 N.E.2d 626, 632 (Ind. Ct. App. 2010).
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Here, the Health Department formally appeared as a party in the case after the
Fiedlers filed their complaint. Appellants’ App. p. 3. Furthermore, the Health
Department did not raise lack of personal jurisdiction as a defense either in its motion to
dismiss or in its memorandum supporting the motion. Therefore, we conclude that the
Health Department waived the issue of personal jurisdiction and the trial court properly
exercised personal jurisdiction over the Health Department.
II. Service of Motion for Entry of Final Judgment
The Fiedlers next argue that they “were not contemporaneously served by Counsel
for The Health Department with the Motion for Entry of Final Judgment” and that they
first learned about the motion on March 2, 2012, when they received notice of the court’s
entry of final judgment against them. Appellants’ Br. at 7.
The record reveals, however, a file-stamped copy of the motion that includes a
certificate of service verifying that the Health Department served the Fiedlers with the
motion on February 27, 2013. Appellee’s App. p. 8. The Fiedlers point to no evidence in
the record indicating that the Health Department failed to serve them with the motion.
We may not consider matters outside the record or speculate about the actual facts of the
case, and it is the burden of the appellants to present portions of the record to support
their argument. See Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind. Ct. App. 1992), trans.
denied; Graddick v. Graddick, 779 N.E.2d 1209, 1210 (Ind. Ct. App. 2002); Boczar v.
Meridian St. Found., 749 N.E.2d 87, 92 (Ind. Ct. App. 2001). Here, the record
establishes that the Fiedlers were properly served. Therefore, the Fiedlers’ argument that
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the Health Department failed to serve them with the motion for entry of final judgment
must fail.
III. Entry of Final Judgment
Finally, the Fiedlers argue that the Health Department’s motion for entry of final
judgment was inadequate to support the trial court’s granting of the motion. Specifically,
the Fiedlers assert
a motion for final Judgment of Dismissal based on the premise that the
Fiedlers did not amend their petition is nonsensical in that since the Fiedlers
were dismissed by reason of 12(B)5, the Fiedlers would have had no need
to amend their petition, as the court had never acquired jurisdiction over all
of the parties, did not subsequently acquire that jurisdiction and amending a
petition in a dismissed case would have been an exercise in futility for the
Fiedlers as such an action would still not overcome being dismissed for
insufficient service.
Appellants’ Br. at 11.
The Fiedlers claim that the trial court’s January 7, 2013 order granting the Health
Department’s motion to dismiss “gives the erroneous impression through the inclusion of
paragraph 1 which is the first thing a reader would encounter, that dismissal was for
failure to state a claim upon which relief can be granted 12(B)(6), when in actuality relief
was granted in paragraph 2 where 12(B)(5) relief was granted.” Appellants’ Br. at 12.
The Fiedlers claim that the trial court actually dismissed the case for insufficiency of
service, and “amending a petition in a dismissed case would have been an exercise in
futility.” Appellants’ Br. at 11.
The Fiedlers’ argument is without merit. We have already determined that the
trial court properly exercised jurisdiction over the parties, since the Health Department
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submitted to the jurisdiction of the trial court by formally appearing and failing to raise
the defense of lack of personal jurisdiction. Furthermore, the trial court’s order clearly
gives two reasons for dismissing the complaint: (1) insufficient service and (2) failure to
state a claim on which relief can be granted. Appellee’s App. p. 6. Since the Health
Department consented to the trial court’s jurisdiction, the February 28, 2013 entry of final
judgment against the Fiedlers was based on the Fiedlers’ failure to amend their complaint.
Indeed, the order states, “[p]etitioners thereafter filed no amended petition.” Appellants’
App. p. 6. Therefore, the final judgment was properly entered and the Fiedlers’ argument
to the contrary is unavailing.
The Fiedlers also argue that the trial court’s entry of final judgment in favor of the
Health Department was improper because the court “acted in a manner that led to the
Fiedlers being denied their right to present counter arguments to The Health
Department’s Motion for Entry of Final Judgment.” Appellants’ Br. at 8. Specifically,
the Fiedlers argue that the trial court acted improperly when it ruled on the motion for
entry of final judgment the day after it was filed and accuse the trial court of conducting a
hearing on February 28, 2013 without giving them notice and without making a record of
the hearing.5 The Fiedlers claim, “the entire process that evolved on February 27 and 28,
5
The Fiedlers state, “[w]hile Counsel for The Health Department has argued that there was no hearing on
February 28, 2013, the issuance of a civil notice dated February 28, 2013 at 9:11am and initialed by TG,
who the Fiedlers believe to be Tabitha Glick, a court reporter in The Superior Court, certainly implies to
the Fiedlers that this issue may have been presented in the courtroom that morning, as the calendar
indicates a 9am session and the court reporter was obviously at hand at 9:11 to transcribe the civil notice.”
Appellants’ Br. at 10. However, the Fiedlers do not provide any citation to the record to support their
claim. Even if they did, this evidence alone would not establish the occurrence of a secret hearing.
8
2013 was designed in a manner to ensure that the Fiedlers would have no opportunity to
respond to the Motion for Entry of Final Judgment[.]” Appellants’ Br. at 9.
We again note that the Fiedlers have not provided any citation to the record that
supports their assertion that the trial court held a hearing on February 28, 2013. Since we
cannot look outside the record, and since the record does not support the Fiedlers’ claim,
their claim must fail.
We further disagree with the Fiedlers’ argument that the trial court erred when it
granted the Health Department’s motion for entry of final judgment without giving the
Fiedlers an opportunity to be heard. Indiana Trial Rule 12(B)(6) tests the legal
sufficiency of a claim, rather than the facts supporting it. City of South Bend v. Century
Indem. Co., 821 N.E.2d 5, 9 (Ind. Ct. App. 2005), trans. denied. “When a motion to
dismiss is sustained for failure to state a claim under subdivision (B)(6) of this rule the
pleading may be amended once as of right pursuant to Rule 15(A) within ten [10] days
after service of notice of the court’s order sustaining the motion and thereafter with
permission of the court pursuant to such rule.” Indiana Trial Rule 12(B)(6). Therefore,
when the trial court dismissed the Fiedlers’ complaint for failure to state a claim on
which relief can be granted, the Fiedlers had ten days to amend their complaint. They
failed to do so. A trial court need not hold a hearing before making an entry showing that
a plaintiff failed to amend his complaint and dismissing the cause. See Hendrickson v.
Am. Fletcher Nat. Bank & Trust Co., 158 Ind. App. 20, 23, 301 N.E.2d 530, 531 (1973)
(providing, “[t]here is no question that if, after the ten day period provided for the
plaintiff to plead over, the trial judge had made an entry showing that ‘the plaintiff having
9
failed to plead over, the cause is now dismissed, such would have been a final appealable
judgment.”). Under these facts and circumstances, the trial court’s entry of final
judgment against the Fiedlers was appropriate.
Conclusion
By failing to comply with Appellate Rule 46(A)(8), the Fiedlers waived the issues
presented in this appeal. Waiver notwithstanding, we conclude that the Fiedlers are not
entitled to the relief they seek. The trial court correctly exercised personal jurisdiction
over the parties. The Fiedlers’ argument that the Health Department failed to serve them
with the motion for entry of final judgment is unsupported by the record. On the record
before us, the trial court’s entry of final judgment against the Fiedlers was proper.
Affirmed.
NAJAM, J., and BROWN, J., concur.
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