MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Apr 22 2020, 9:23 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE1
David B. Schilling                                         William J. Beggs
Lee F. Baker                                               Ryan M. Heeb
Monroe County Legal Department                             Bunger & Robertson
Bloomington, Indiana                                       Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Monroe County, Indiana and                                 April 22, 2020
Monroe County Plan                                         Court of Appeals Case No.
Commission,                                                20A-PL-177
Appellant-Plaintiffs,                                      Appeal from the Monroe Circuit
                                                           Court
        v.                                                 The Honorable Elizabeth A. Cure,
                                                           Judge
Boathouse Apartments, LLC,                                 Trial Court Cause No.
Appellee-Defendant.                                        53C01-1702-PL-257




Bradford, Chief Judge.




1
  We note that while Appellee Boathouse Apartments, LLC, did not file an Appellee’s Brief in the instant
appeal, the listed counsel filed a joint appearance on Boathouse’s behalf.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020                     Page 1 of 8
                                           Case Summary
[1]   On February 3, 2017, Monroe County, Indiana, and the Monroe County Plan

      Commission (collectively, “the County”) filed a complaint in the Monroe

      Circuit Court, seeking a monetary penalty against Boathouse Apartments, LLC

      (“Boathouse”), for alleged violations of certain Monroe County ordinances.

      Boathouse subsequently filed a Trial Rule 12(B)(1) motion to dismiss, arguing

      that the trial court did not have subject matter jurisdiction over the County’s

      claims. The trial court granted Boathouse’s motion to dismiss. Because we

      conclude that the trial court does have subject matter jurisdiction over the

      County’s claims, we reverse and remand for further proceedings.



                            Facts and Procedural History
[2]   Boathouse owns three lots (the “Boathouse Property”) within the Lakes

      Neighborhood Planned Unit Development in Bloomington. During 2016,

      Boathouse began a project to construct six buildings of townhome apartments

      on the Boathouse Property. In completing the project, Boathouse was required

      to comply with the use and occupancy requirements of the Monroe County

      Code of Ordinances (“Monroe County Code”).


[3]   On February 3, 2017, the County filed a complaint seeking a monetary penalty

      against Boathouse, alleging that Boathouse had violated the use and occupancy

      requirements of the Monroe County Code. Specifically, the County alleged

      that Boathouse had permitted tenants to occupy the apartment units before a


      Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020   Page 2 of 8
      land use certificate and certificate of occupancy were issued. Boathouse

      answered and filed affirmative defenses to the complaint on April 4, 2017.


[4]   On October 14, 2019, Boathouse filed a Trial Rule 12(B)(1) motion to dismiss,

      claiming that the County had failed to comply with applicable ordinances in

      bringing its claims against Boathouse and “[t]his failure deprives the Court of

      subject matter jurisdiction over these claims.” Appellants’ App. Vol. II p. 76.

      As such, Boathouse requested “that the Court grant its Motion to Dismiss

      because the Court lacks subject matter jurisdiction to hear [the County’s]

      claims.” Appellants’ App. Vol. II p. 76. The County filed both a brief and a

      supplemental brief in opposition to Boathouse’s motion to dismiss. On January

      6, 2020, the trial court, ruling on a paper record, issued an order granting

      Boathouse’s motion and dismissing the County’s lawsuit.



                                 Discussion and Decision
[5]   Initially we note that where, as here, the appellee fails to submit an appellate

      brief, we need not undertake the burden of developing an argument on the

      appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

      2006). “Rather, we will reverse the trial court’s judgment if the appellant’s brief

      presents a case of prima facie error.” Id. “Prima facie error in this context is

      defined as, ‘at first sight, on first appearance, or on the face of it.’” Id. (quoting

      Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)).




      Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020   Page 3 of 8
[6]   In challenging the trial court’s dismissal of its action against Boathouse, the

      County claims that the trial court erred in determining that it lacked subject

      matter jurisdiction over the County’s claims. Where, as here, the facts before

      the trial court are not in dispute, “the question of subject matter jurisdiction is

      purely one of law.” GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001).

      “Under those circumstances no deference is afforded the trial court’s conclusion

      because “appellate courts independently, and without the slightest deference to

      trial court determinations, evaluate those issues they deem to be questions of

      law.” Id. “Thus, we review de novo a trial court’s ruling on a motion to

      dismiss under Trial Rule 12(B)(1) where the facts before the trial court are

      undisputed.” Id.


[7]           Subject-matter jurisdiction is the constitutional or statutory
              power of a court to hear and determine cases of the general class
              to which any particular proceeding belongs. So, in determining
              whether a court has subject-matter jurisdiction, the only relevant
              inquiry is whether the petitioner’s claim falls within the general
              scope of the authority conferred upon such court by the
              constitution or by statute.


      State v. Reinhart, 112 N.E.3d 705, 711–12 (Ind. 2018) (internal quotations

      omitted). “Courts of general jurisdiction are presumed to have subject matter

      jurisdiction.” Lakes & Rivers Transfer, a Div. of Jack Gray v. Rudolph Robinson Steel

      Co., 736 N.E.2d 285, 290 (Ind. Ct. App. 2000). “All circuit courts have: (1)

      original and concurrent jurisdiction in all civil cases and in all criminal cases.”

      Ind. Code § 33-28-1-2 (a). “The Monroe circuit court is a court of general



      Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020   Page 4 of 8
      jurisdiction” and, as such, has the authority to maintain a civil docket. Ind.

      Code § 33-33-53-2(a).


[8]   The County claims that statutory authority expressly confers subject matter

      jurisdiction over the County’s case against Boathouse to the trial court. We

      agree. “The Indiana General Assembly, through statutes, has both authorized

      local units of government to create ordinances and established the manner in

      which those ordinances are to be enforced.” Boss v. State, 944 N.E.2d 16, 22

      (Ind. Ct. App. 2011). In doing so, the General Assembly “specifically withheld

      from [local] units, however, the power to prescribe a penalty for conduct

      constituting” a violation of a local ordinance. Id. (internal quotation omitted).

      The General Assembly instead gave this power to the courts.

[9]   Indiana Code sections 36-7-4-1013 and 36-7-4-1014 detail remedies for

      enforcement and allowable actions for violations of ordinances. Specifically,

      Indiana Code section 36-7-4-1013(a) provides that if, after conducting an

      investigation into an alleged violation of an ordinance, a municipal attorney or

      an attorney representing the county comes to the reasonable belief that an entity

      has violated an ordinance, “the municipal attorney or an attorney representing

      the county may file a complaint against the person and prosecute the alleged

      violation under IC 36-1-6.”2 Ind. Code section 36-7-4-1014 provides as follows:




      2
        Indiana Code section 36-1-6-4(a) provides that “A municipal corporation may bring a civil action … if a
      person: (1) violates an ordinance regulating or prohibiting a condition or use of property[.]”

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020                    Page 5 of 8
               (a) The plan commission, board of zoning appeals, or any
               enforcement official designated in the zoning ordinance may
               bring an action under IC 36-1-6 to enforce any ordinance adopted
               or action taken under this chapter.

               (b) The plan commission, board of zoning appeals, or any
               enforcement official designated in the zoning ordinance may also
               bring an action to enforce:

                        (1) conditions imposed by the commission or board
                        of zoning appeals under this chapter; or

                        (2) covenants made in connection with a subdivision
                        plat, a development plan, or a PUD district
                        ordinance (as defined in section 1503 of this chapter).

                                                       ****

               (d) The plan commission, board of zoning appeals, or designated
               enforcement official may invoke any legal, equitable, or special
               remedy in an action described in subsection (a) or (b).

               (e) An action for the levy of a fine or penalty for enforcement of a
               zoning ordinance may be brought in any court located within the
               jurisdiction of the plan commission or board of zoning appeals.


       The above-quoted statutory sections clearly indicate that actions such as that

       brought in this case by the County, which seeks penalties for alleged violations

       of the certain County ordinances, may be brought in court, with Indiana Code

       section 36-7-4-1014 allowing for the action to be brought in “any court located

       within the jurisdiction.”

[10]   Furthermore, we agree with the County that the arguments set forth in

       Boathouse’s motion to dismiss allege procedural, i.e., legal, error. “Subject


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020   Page 6 of 8
       matter jurisdiction and legal error are distinct concepts.” Clark Cty. Bd. of

       Aviation Comm’rs v. Dreyer, 986 N.E.2d 286, 287 (Ind. Ct. App. 3013), trans.

       granted, opinion vacated, 992 N.E.2d 207 (Ind. 2013), and aff’d, 993 N.E.2d 624

       (Ind. 2013). “Procedural error doesn’t rob the court of jurisdiction.” Reinhart,

       112 N.E.3d at 712. Stated differently, “[i]t goes without saying that a court’s

       power to award relief and a claimant’s entitlement to relief on the merits are

       very different things.” Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170, 174 (Ind.

       2017). “Real jurisdictional problems would be, say, a juvenile delinquency

       adjudication entered in a small claims court, or a judgment rendered without

       any service of process.” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006) (emphasis

       in original). “Thus, characterizing other sorts of procedural defects as

       ‘jurisdictional’ misapprehends the concepts.” Id. “Indeed, as strongly

       suggested by the K.S. Court, practitioners and the judiciary, including

       ourselves, should stop using the phrase ‘jurisdiction over a particular case,’

       rather than ‘legal error.’” Dreyer, 986 N.E.2d at 291.


[11]   Again, in its motion to dismiss, Boathouse alleged that the County failed to

       comply with applicable ordinances in bringing claims against Boathouse and

       “[t]his failure deprives the Court of subject matter jurisdiction over these

       claims.” Appellants’ App. Vol. II p. 76. However, contrary to Boathouse’s

       claim, we have previously concluded that procedural error or the failure to

       follow statutory guidelines for initiating a particular action does not affect

       subject matter jurisdiction, so long as the action was filed in the proper court for

       such an action. Blackman v. Gholson, 46 N.E.3d 975, 979 (Ind. Ct. App. 2015)

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-177 | April 22, 2020   Page 7 of 8
       (citing K.S., 849 N.E.2d 542 (providing a juvenile court’s failure to follow all of

       the statutory procedures for initiating a delinquency petition did not affect

       either subject matter or personal jurisdiction, but was mere procedural error);

       Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805

       (Ind. Ct. App. 2015) (holding alleged defect in annexation remonstrance

       signatures did not affect subject matter jurisdiction of trial court to consider

       remonstrance petition)); see also Prosecuting Attorney of Hendricks Cty. v. Hammer,

       92 N.E.3d 649, 652 (Ind. Ct. App. 2017) (providing that the question of

       whether a suspended driver petitions the proper court under the SDP statute is a

       “question of legal error, not jurisdictional error”). Thus, any procedural or

       legal error that may have been committed by the County would not deprive the

       trial court of subject matter jurisdiction.


[12]   In sum, given that the relevant authority clearly demonstrates that the trial

       court has subject matter jurisdiction over the County’s claims against

       Boathouse, we conclude that the trial court erred by granting Boathouse’s Trial

       Rule 12(B)(1) motion to dismiss. We therefore remand the matter back to the

       trial court for further proceedings consistent with this decision.


[13]   The judgment of the trial court is reversed, and the matter remanded for further

       proceedings.


       Baker, J., and Pyle, J., concur.




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