City of La Porte v. Christopher A. Throgmorton (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2020, 8:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Nicholas T. Otis
Newby Lewis Kaminski & Jones, LLP
La Porte, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of La Porte, October 26, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-PL-2625
v. Appeal from the La Porte Circuit
Court
Christopher A. Throgmorton, The Honorable Thomas J.
Appellee-Petitioner. Alevizos, Judge
The Honorable Kim Hall, Special
Judge
Trial Court Cause No.
46C01-1803-PL-304
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 1 of 10
Statement of the Case
[1] The City of La Porte (“the City”) appeals the trial court’s order compelling the
disclosure of certain public records pursuant to Christopher Throgmorton’s
petition under Indiana’s Access to Public Records Act (“APRA”), Ind. Code §§
5-14-3-1 to -10 (2020). The City raises two issues for our review, which we
restate as the following dispositive issue: Whether the City’s appeal is properly
before us.
[2] We dismiss this appeal.
Facts and Procedural History
[3] In March of 2018, Throgmorton filed his APRA petition against the City
requesting the disclosure of certain public records. In particular, Throgmorton
requested “case reports or supplemental reports . . . in reference to . . . incidents
in which he was subjected to unlawful search and seizure” and records
regarding a “[n]o trespass order” covering seven specified dates. Appellant’s
App. Vol. II at 12 (quotation marks omitted). He specifically identified “13
documents” that had been “withheld” from disclosure by the City under
various APRA disclosure exceptions. Id. (quotation marks omitted). He then
stated that he was seeking “any documents referencing” the incidents on the
specified dates. Id. at 16.
[4] In its response to Throgmorton’s petition, the City asserted that one of its
attorneys had generated thirteen pages of documents (“the disputed
documents”) relating to how local officials should respond to Throgmorton,
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 2 of 10
who frequently visited and made demands of local officials. 1 The City stated
that the disputed documents were not subject to disclosure as they were
protected under attorney-client privilege, attorney work-product privilege,
and/or as deliberative materials. Id. at 24. The City also acknowledged that it
had withheld various police incident reports from disclosure under APRA’s
exception for investigatory records of law enforcement.
[5] On April 10, 2018, the trial court held a hearing on Throgmorton’s petition. At
that hearing, Throgmorton made clear that he was asking for the disputed
documents. Specifically, in a lengthy discussion with the court, he stated that
he had been unfairly targeted by the City in the disputed documents, that those
documents had led to violations of his civil liberties, and that he believed that
APRA gave him the right to review those documents. Tr. at 15-18. He
specifically asked for “the 13 documents” and requested clarification as to
whether the City was withholding the disputed documents under an attorney
privilege or under the investigatory records exception. Id. at 18.
[6] The City argued only that all of its withheld documents were withheld under
the exception for investigatory records. The City stated that, although it did not
think that Throgmorton had properly requested the disputed documents, it had
brought them to the hearing for the court to review them in camera. The City
further informed the court that it was going to disclose all of the requested
1
The disputed documents have been filed with our Court under seal.
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documents to Throgmorton until it had learned that he had called the personal
cell phone number of a city employee, which he had obtained from another
disclosed document. After that, the City declined to disclose any of the
requested records.
[7] The trial court requested the City’s documents for an in camera review, stating,
“I’m going to read all of this. I’m going to come up with a response.” Id. at 39.
Throgmorton then again asked if the disputed documents were being withheld
as investigatory records. The City did not answer that question directly, but did
acknowledge that Throgmorton’s records request “relates to anything related”
to the incidents on the specified dates. Id. at 40.
[8] On May 25, the trial court entered judgment for Throgmorton and directed the
City to disclose the requested records (“the final judgment”). In particular, the
court found and concluded as follows:
2. [The City] has attempted to block disclosure of
documentation regarding 7 specific events listed by
[Throgmorton].
3. [The City] relies on IC 5-14-3-4(b)(1) which lists an
investigatory record as exempt from disclosure.
***
5. [The City] has failed to meet its burden of showing how
these minimal reports are . . . subject to exemption by statute, or
alternatively, what is the purpose served by preventing
disclosure . . . .
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6. This Court finds that simple reports regarding specific
conduct are not investigatory records . . . .
IT IS THEREFORE ORDERED that [Throgmorton’s] Petition
to Compel Disclosure of Public Records is hereby GRANTED.
[The City] shall make available to [Throgmorton] the requested
documentation associated with the events regarding pat downs and
communications requested by [Throgmorton] on [the seven specified
dates].
Appellant’s App. Vol. II at 72-73 (emphasis added). In its judgment, the court
did not distinguish the disputed documents from the other requested
documents.
[9] On June 4, the City filed a motion to correct error. Although the City has not
included that motion in the record on appeal, in a subsequent filing with the
trial court the City described its motion as requesting the court to amend its
final judgment to allow the City to withhold police incident reports on three of
the specified dates under the APRA exception for investigatory records of law
enforcement. See id. at 74-75. The City does not suggest that it requested any
further clarification from the trial court on the scope of its final judgment with
respect to the disputed documents or any other documents.
[10] On July 10, prior to either a ruling on the motion to correct error or the end of
the forty-five-day timeframe within which that motion would be deemed denied
by operation of Indiana Trial Rule 53.3(A), the City informed the court that it
had produced to Throgmorton the police incident reports that were the subject
of the motion to correct error. Accordingly, the City informed the court that it
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had “resolve[d] all remaining outstanding issues in this matter.” Id. at 76. The
City thus moved the trial court to “dismiss this case.” Id.
[11] On July 12, the trial court entered an order in which it denied the City’s motion
to correct error. In that same order, the court stayed the City’s request to
dismiss the case 2 and gave Throgmorton thirty days to dispute whether the City
had in fact complied with the court’s final judgment. Throgmorton filed a
timely response thereafter and asserted that he had not received the disputed
documents.
[12] Nothing happened in this case over the next fourteen and one-half months.
Then, in late October of 2019, Throgmorton communicated by telephone with
the court’s chief of staff about the case, and the next day the court issued an
order to compel against the City directing the City to turn over the disputed
documents (“the October 2019 order to compel”). Throgmorton recorded his
communications with the court staff and posted those communications on the
internet, where the City found them. The City then moved to have the court
vacate the October 2019 order to compel, recuse itself from these proceedings,
and enter a change of venue from the judge, alleging that the court had engaged
in inappropriate ex parte communications with Throgmorton on the day prior to
issuing the October 2019 order to compel. On November 12, 2019, the City
then filed its notice of appeal from the October 2019 order to compel.
2
The trial court never formally ruled on the City’s motion to dismiss.
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[13] In December, without a hearing, the trial court issued written findings in which
in concluded that there were no improper ex parte communications (“the
December 2019 order”). Further, even though a notice of appeal had been
filed, in that order the court denied the City’s request for a change venue from
the judge and to vacate the October 2019 order to compel. However, after
reaching those conclusions, the court then stated that it recused itself from
further proceedings in this matter, after which a special judge was appointed.
Discussion and Decision
[14] The City appeals from the October 2019 order to compel. But we conclude that
the City’s appeal is not properly before us. In its notice of appeal, the City
described the October 2019 order to compel as a final judgment. We cannot
agree.
[15] The trial court entered its final judgment in this matter on May 25, 2018, when
it granted Throgmorton’s petition for public documents and directed the City to
disclose those records. Indeed, the City plainly thought as much, as it filed a
motion to correct error from that judgment on June 4, 2018. As our trial rules
make clear, a motion to correct error “shall be filed not later than thirty (30)
days after the entry of a final judgment . . . .” Ind. Trial Rule 59(C) (emphasis
added).
[16] An appellant’s notice of appeal is due thirty days “after the entry of a Final
Judgment is noted in the Chronological Case Summary,” or thirty days “after
the court’s ruling” on a motion to correct error “is noted in the Chronological
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Case Summary.” Ind. Appellate Rule 9(A)(1). Here, the City filed a motion to
correct error and, as such, had thirty days after the trial court ruled on the
motion to correct error to file a notice of appeal. The trial court entered its
order denying the City’s motion to correct error on July 12, 2018, and that
order was recorded in the Chronological Case Summary on July 13. Therefore,
the City’s notice of appeal was due no later than August 12, 2018. The City
filed its notice of appeal on November 12, 2019, sixteen months after the court’s
denial of the motion to correct error. Therefore, the City’s appeal is not a
timely appeal from a final judgment.
[17] Rather, the City is attempting to bring an interlocutory appeal from the October
2019 order to compel. But the City did not request that the trial court certify
the October 2019 order to compel for interlocutory review under Indiana
Appellate Rule 14(B), and that order is not appealable as a matter of right under
Indiana Appellate Rule 14(A)(3). Rule 14(A)(3) permits an appeal as a matter
of right from an interlocutory order to “compel the delivery . . . of any . . .
document . . . .” App. R. 14(A)(3). But our Supreme Court has made clear that
Rule 14(A)(3) “is not designed to create an appeal as of right from every order
to produce documents during discovery.” Ball State Univ. v. Irons, 27 N.E.3d
717, 721 (Ind. 2015) (quoting State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991)).
Rather, Rule 14(A)(3) applies only to interlocutory orders “which carry
financial and legal consequences akin to those more typically found in final
judgments: payment of money, issuance of debt, delivery of securities, and so
on.” Id. (quoting Hogan, 582 N.E.2d at 825).
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 8 of 10
[18] Here, the disclosure of the public records requested does not carry any more
financial and legal consequences than any other documents that one might be
compelled to disclose during ordinary discovery. Nor does the fact that this is
an APRA lawsuit—where the only issue is the disclosure of documents—affect
our analysis. On APRA petitions, the order to compel and the final judgment
are nearly always one and the same. However, here, the trial court was
required to enter a post-judgment order to compel due to the City’s
noncompliance with the final judgment. The City’s noncompliance with the
final judgment does not covert the subsequent order to compel into another
final judgment.
[19] Nonetheless, the City asserts that the trial court’s final judgment was unclear
with respect to the disputed documents. But the City’s argument suffers from
two fatal flaws. First, the disputed documents were before the trial court on
Throgmorton’s petition, and the final judgment was not unclear. The City did
not argue to the trial court at the April 2018 hearing that it was withholding the
disputed documents under any theory other than the APRA exception for
investigatory records of law enforcement, even though Throgmorton repeatedly
requested the City to clarify its position with respect to the disputed documents.
Throgmorton identified them in his petition, the City acknowledged them in its
response, the parties extensively discussed them at the April hearing, the City
disclosed them to the court for an in camera review, and the court informed the
parties that it would review them and rule on them. And the final judgment
expressly rejected the City’s stated theory for withholding all documents and
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then expressly directed the City do disclose its “communications” relating to
the specified incidents. Appellant’s App. Vol. II at 73. In other words, the trial
court’s final judgment was categorical and made no exception for the disputed
documents.
[20] Second, the City’s argument that the final judgment was unclear does not affect
the untimeliness of this appeal. If the City thought the final judgment was
unclear, the City’s remedy was to request clarification by way of a motion to
correct error or similar motion in the trial court within an appropriate
timeframe or to prosecute a timely appeal. The City did not have the option to
assume that the disputed documents were excluded from the final judgment and
then, more than sixteen months later, ask our Court to address the merits or
scope of that final judgment.
[21] We conclude that the City’s appeal from the October 2019 order to compel
amounts to a collateral attack on the final judgment and is not properly before
us. 3 Therefore, we dismiss this appeal.
[22] Dismissed.
Bradford, C.J., and Mathias, J., concur.
3
We also note that, insofar as the City’s challenge to the October 2019 order to compel sought the relief of a
new judge, the City has received that relief, and thus the City’s argument on that point is moot. And the
City’s argument that the October 2019 order to compel should be vacated due to the alleged ex parte
communications is improper for the same reasons stated in this decision.
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