                                                                            FILED
                                                                        Jan 23 2019, 8:35 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kristen D. Hill                                            Sophia J. Arshad
Munster, Indiana                                           Arshad Pangere & Warring, LLP
                                                           Merrillville, Indiana
                                                           Geoffrey G. Giorgi
                                                           Giorgi & Bebekoski, LLC
                                                           Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

City of Hammond,                                           January 23, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-OV-1891
        v.                                                 Appeal from the Lake Superior
                                                           Court
John Rostankovski,                                         The Honorable Julie N. Cantrell,
Appellee-Defendant.                                        Judge
                                                           Trial Court Cause No.
                                                           45D09-1805-OV-1637



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019                            Page 1 of 8
                                 STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, the City of Hammond (Hammond), appeals the Superior

      Court’s dismissal of its action against Appellee-Defendant, John Rostankovski

      (Rostankovski), for lack of subject matter jurisdiction.


[2]   We reverse and remand for further proceedings.


                                                     ISSUE
[3]   Hammond presents this court with one issue on appeal which we restate as:

      Whether the Superior Court lacked subject matter jurisdiction to hear

      Hammond’s appeal from a negative judgment based on an ordinance violation.


                       FACTS AND PROCEDURAL HISTORY
[4]   Rostankovski is the owner of residential rental property located on Spruce

      Street, in Hammond, Indiana. On October 24, 2017, Hammond filed a

      Complaint against Rostankovski in the Hammond City Court (City Court),

      alleging a violation of Hammond’s zoning ordinance. Rostankovski filed a

      motion to dismiss Hammond’s Complaint, to which Hammond responded. On

      April 20, 2018, after conducting a hearing, the City Court issued an Order,

      concluding that Hammond’s Complaint was barred by laches and consequently

      dismissed the Complaint.


[5]   On April 30, 2018, Hammond filed a motion for trial de novo with the Lake

      County Superior Court (Superior Court), which was denied on May 7, 2018. In

      its order, the Superior Court found:

      Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019    Page 2 of 8
        Motion for Trial De Novo is denied. Trial De Novo Rule 2A1
        states, “a defendant who has statutory right to appeal . . .” It
        does not contemplate appeal by anyone other than the defendant.


        However, if [Hammond] is of the opinion it has a right to pursue
        appeal pursuant to [Ind. Code §] 33-35-5-10, [Hammond] shall
        file an appeal in conformity with the requirements of the statute
        within 30 days.


(Appellant’s App. Vol. II, p. 48). In accordance with the Superior Court’s

order, on May 30, 2018, Hammond filed its petition for appellate review of the

judgment issued by the City Court pursuant to I.C. § 33-35-5-10 with the

Superior Court. The following day, on May 31, 2018, the Superior Court

dismissed the appeal for lack of subject matter jurisdiction. In its Order, the

Superior Court concluded, in pertinent part:


        Now [Hammond] urges that pursuant to [I.C. § 33-35-5-10] 1 it
        may appeal, pursuant to the statute regarding the appeal of a civil
        case from Hammond City Court. However, once again, the
        court must rule it has no subject matter jurisdiction.


        Although the statute in question does allow for any party to
        appeal a civil case in the manner prescribed, and ordinance cases
        are considered civil in nature, the problem here is one of conflict
        of laws. While the statute allows for civil appeals by any party,
        the De Novo Rules do not allow for the appeals of [o]rdinance
        [v]iolations by [Hammond]. In such a situation of conflict, the




1
  In its Order, the Superior Court referred to I.C. § 35-33-5-10. However, we assume the Superior Court
transposed the Title and Article numbers as I.C § 35-33 deals with the preliminary proceedings in criminal
law.

Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019                              Page 3 of 8
              more specific law will control. See Economy Oil Corporation v.
              Indiana Department of Revenue, 321 N.E.2d 215, 218 (Ind. Ct.
              App. 1974). As the De Novo Rules address ordinances
              specifically, and the statute addresses civil cases generally, the De
              Novo Rules, which are propagated by our Supreme Court, which
              also entitled them to preference in event of conflict of law, must
              control.


      (Appellant’s App. Vol. II, p. 4). On June 29, 2018, Hammond filed a motion to

      correct error which the Superior Court denied without a hearing on July 11,

      2018.


[6]   Hammond now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[7]   Hammond contends that the Superior Court erred when it dismissed its appeal

      for lack of subject matter jurisdiction. Implicitly no longer pursuing an appeal

      de novo, Hammond maintains that, as an issue of first impression, Ind. Code

      section 33-35-5-10 remains a valid procedural avenue to appeal an adverse civil

      judgment.


[8]   The standard of review applicable to a court’s grant or denial of a motion to

      dismiss pursuant to Trial Rule 12(B)(1) is a function of what occurred in the

      trial court. Outboard Boating Club of Evansville, Inc. v. Ind. State Dept. of Health,

      952 N.E.2d 340, 343 (Ind. Ct. App. 2011), trans. denied. Where, as here, the

      relevant facts before the trial court are not in dispute, then the question of

      subject matter jurisdiction is purely one of law and no deference is afforded to

      the trial court’s conclusion. Id.

      Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019            Page 4 of 8
[9]    Pursuant to Ind. Code section 33-35-2-3, a city court has “jurisdiction of all

       violations of the ordinances of the city.” An appeal from a city or town court

       acting in accordance with its jurisdictional power enumerated in I.C. § 33-35-2-

       3 is statutorily governed by I.C. § 33-35-5-9(a), which stipulates that “an appeal

       from a judgment of a city court may be taken to the circuit, superior, or probate

       court of the county and tried de novo.” Our supreme court has promulgated the

       Indiana Trial De Novo rules which specifically govern the procedural

       requirements after a party has elected a Trial De Novo appeal as permitted by

       statute. Indiana Trial De Novo Rule 2(A) addresses the de novo procedure

       following a judgment of ordinance violation in City Court as follows:


               (1) A defendant who has a statutory right to an appeal after a trial
                   for an infraction or ordinance violation in a city or town court
                   may request and shall receive the trial de novo as provided in
                   this rule.


               (2) A city or town court defendant who admitted committing an
                   infraction or ordinance violation and therefore had no trial in
                   city or town court may request as provided in this rule that the
                   circuit or superior court either:


                        (a) Permit the defendant to withdraw the admission and
                            have a trial de novo; or


                        (b) Provide a trial de novo on the sanctions.


[10]   Accordingly, although at first glance I.C. § 33-35-5-9 permits Hammond to

       appeal the adverse judgment to the Superior Court and try the Complaint de

       novo, Indiana’s procedural De Novo rules explicitly advance this right only to ‘a
       Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019       Page 5 of 8
       defendant.’ As Hammond was not the defendant, but rather the plaintiff,

       before the City Court, it cannot avail itself of the permissive right of an appeal

       de novo before the Superior Court pursuant to I.C. § 33-35-5-9.


[11]   Focusing on I.C. § 33-35-5-10, Hammond posits that the statute grants it a

       “non-de novo” appellate review of a civil action originating in the City Court.

       (Appellant’s Br. p. 11). Indiana Code section 33-35-5-10 provides, in pertinent

       part:


                (a) A party in a civil action who desires to take an appeal from
                    the city court of the three (3) cities having the largest
                    populations in a county having a population of more than
                    four hundred thousand (400,000) but less than seven hundred
                    thousand (700,000) shall file a bond, to the approval of the
                    city court, within thirty (30) days after the date of rendition of
                    final judgment, and the motion to correct errors within ten
                    (10) days after the rendition of final judgment. The transcript
                    and motion shall be filed in the court to which the appeal is
                    taken within thirty (30) days after the motion has been signed
                    by the court.


                (b) All errors saved shall be reviewed as far as justice warrants,
                    and for that purpose, a complete transcript of all the evidence
                    is not required. An error occurring during the trial, not
                    excepted to at the time, may be made available upon appeal
                    by setting it forth in a motion for a new trial. . . .


       Hammond complied with the procedural standing requirements to proceed

       under the statute. It provided population statistics, tendered a bond approved

       by the City Court, and timely filed the transcript and motion with the Superior

       Court.

       Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019              Page 6 of 8
[12]   Quoting Economy Oil Corporation for its proposition that the specific law of the

       Indiana De Novo Rules controlled over the more general statute, the Superior

       Court dismissed Hammond’s appeal for lack of subject matter jurisdiction. We

       disagree. While I.C. § 33-35-5-9, in combination with Indiana Trial De Novo

       Rule 2, limits an appeal from a judgment of a City Court to a De Novo trial for

       defendants only, no such limitations are incorporated in I.C. § 33-35-5-10.

       Rather, after satisfying the procedural standing requirements, “a party in a civil

       action” can have its “errors reviewed” by “the court to which the appeal is

       taken.” I.C. § 33-35-5-10. As a violation of a zoning ordinance is undeniably

       civil in nature, and Hammond satisfied the procedural prerequisites of

       population, bond, and transcript, Hammond is statutorily allowed to proceed

       with its appeal before the Superior Court.


[13]   Even though both statutes at issue—I.C. § 33-35-5-9 and I.C. § 33-35-5-10—

       relate to the same general subject matter, and thus are in pari materi, the statutes

       can be construed together to produce an harmonious system. See Econ. Oil

       Corp., 321 N.E.2d at 218. Specifically, both statutes govern the appeals of city

       courts; however, where I.C. § 33-35-5-9 focuses on De Novo appeals and is

       further limited by the Indiana De Novo Trial Rules promulgated by our supreme

       court, I.C. § 33-35-5-10, on the other hand, focuses on regular—non-De Novo—

       civil appeals from qualifying city courts. Thus, although the same general

       subject matter is covered by both statutes, their individual focus and

       requirements are different and therefore do not encroach but rather can be

       harmonized. See Econ Oil Corp., 321 N.E.2d at 218 (When two statutes on the

       Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019        Page 7 of 8
       same subject must be construed together, the court should attempt to give effect

       to both). Deciding otherwise, and precluding Hammond to avail itself of an

       appellate avenue under I.C. § 33-35-5-10—as urged by Rostankovski—would

       leave Hammond without any remedy for relief from a presumedly erroneous

       negative judgment. Accordingly, we reverse the Superior Court’s Order and

       remand for further proceedings.


                                              CONCLUSION
[14]   Based on the foregoing, we conclude that the Superior Court erred by

       dismissing Hammond’s appeal for lack of subject matter jurisdiction.


[15]   Reversed and remanded for further proceedings.


[16]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019    Page 8 of 8
