FOR PUBLICATION                                            Jul 11 2013, 8:19 am




ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

TODD ESS                                        R. ERIC SANDERS
Indianapolis, Indiana                           Assistant Corporation Counsel
                                                Office of Corporation Counsel
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT M. GATES,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A04-1210-OV-503
                                                )
CITY OF INDIANAPOLIS,                           )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable David J. Certo, Judge
                               Cause No. 49F12-1204-OV-14334



                                       July 11, 2013


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                                   STATEMENT OF THE CASE

       Robert Gates appeals the trial court’s order denying his demand for a jury trial in

this action in which the City of Indianapolis (“the City”) alleged that Gates violated three

municipal ordinances. Gates presents a single issue for our review, namely, whether the

trial court erred when it denied his demand for a jury trial.

       We reverse and remand with instructions.

                            FACTS AND PROCEDURAL HISTORY

       On February 22, 2012, Indianapolis Animal Care and Control Officer Tiffany

Compton issued three citations to Gates for violations of three ordinances of the Revised

Code of the Consolidated City of Indianapolis and Marion County (“Revised Code”). On

April 10, the City filed a civil complaint against Gates alleging that he had violated the

following ordinances: Section 531-401 (General Requirements for Animal Care and

Treatment); Section 531-202 (Permanent Identification of Dogs and Cats Required); and

Section 531-203 (Curbing). In particular, Officer Compton observed that Gates had

permitted his dog to defecate on a public street without cleaning up after it, and he had hit

his dog multiple times. In addition, Gates’ dog had neither permanent identification nor

proof of rabies vaccination. On June 22, Gates filed his demand for a jury trial,1 which

the trial court denied. This appeal ensued.2

                                  DISCUSSION AND DECISION

       Gates contends that he is entitled to a jury trial under Article I, Section 20 of the

Indiana Constitution, which provides that, “[i]n all civil cases, the right of trial by jury

       1
           The trial court found that Gates’ demand for jury trial was timely filed.
       2
           Gates filed this interlocutory appeal pursuant to Indiana Appellate Rule 14(B).
                                                      2
shall remain inviolate.” As we observed in Cunningham v. State, 835 N.E.2d 1075, 1076

(Ind. Ct. App. 2005), trans. denied, an issue presented on appeal is a pure question of law

when the question does not require reference to extrinsic evidence, inferences drawn

from that evidence, or the consideration of credibility questions. We review purely legal

issues de novo. Id. This is such a question, and we review Gates’ claim de novo. In

doing so, we give no deference to a trial court’s legal conclusions. Id.

       It is well settled that Article I, Section 20 of the Indiana Constitution serves to

preserve the right to a jury trial only as it existed at common law. Songer v. Civitas

Bank, 771 N.E.2d 61, 63 (Ind. 2002). And Indiana Trial Rule 38(A) provides:

       Causes triable by court and by jury.

       Issues of law and issues of fact in causes that prior to the eighteenth day of
       June, 1852, were of exclusive equitable jurisdiction shall be tried by the
       court; issues of fact in all other causes shall be triable as the same are now
       triable. In case of the joinder of causes of action or defenses which, prior to
       said date, were designated as actions at law and triable by jury—the former
       shall be triable by the court, and the latter by a jury, unless waived; the trial
       of both may be at the same time or at different times, as the court may
       direct.

In a concurring opinion in Midwest Security Life Insurance Co. v. Stroup, 730 N.E.2d

163, 169-70 (Ind. 2000), Justice Boehm explained the right to a jury trial as follows:

       Both Article I, Section 20 and Indiana Trial Rule 38(A) provide for the
       right of a trial by jury in certain instances. The right to a jury trial is a
       “fundamental right in our democratic judicial system” that must be
       “scrupulously guarded” against encroachment. Levinson v. Citizens Nat’l
       Bank, 644 N.E.2d 1264, 1267 (Ind. Ct. App. 1994). In my view, the crucial
       inquiry, however, is not, as the Court of Appeals put it, whether a cause of
       action existed at common law. Rather, it is whether the cause of action is
       essentially legal or equitable, as those terms were used in 1852. See
       Midwest Fertilizer Co. v. Ag-Chem Equip. Co., 510 N.E.2d 232, 233 (Ind.
       Ct. App. 1987) (“[T]he key determination to be made is whether the claim
       involved is legal or equitable in character.”). If an action is essentially legal
                                              3
       in nature, a jury demand must be honored, but those causes of action that
       are equitable may be tried to the court. This formulation can be found in
       several Indiana decisions, both recent and ancient. See, e.g., Fager v.
       Hundt, 610 N.E.2d 246, 253 n.9 (Ind. 1993); Dean v. State ex rel. Bd. of
       Med. Registration & Examination, 233 Ind. 25, 31-32, 116 N.E.2d 503, 507
       (1954); Fish v. Prudential Ins. Co., 225 Ind. 448, 452-53, 75 N.E.2d 57, 59
       (1947); Martin v. Martin, 118 Ind. 227, 237, 20 N.E. 763, 767-68 (1889).

              If the cause of action existed on June 18, 1852, then this issue is
       decided by history. Legal actions at that time included replevin, ejectment,
       fraudulent conveyances, and actions for money damages, see City of Terre
       Haute v. Deckard, 243 Ind. 289, 293, 183 N.E.2d 815, 817 (1962); Howell
       v. State Farm Fire & Cas. Co.,530 N.E.2d 318, 319-20 (Ind. Ct. App.
       1988), while equitable actions included injunctions, reformations,
       derivative actions, accounting, discovery, and land transactions, see Dean,
       233 Ind. at 31-32, 116 N.E.2d at 507; Sikich v. Springmann, 221 Ind. 483,
       487-88, 48 N.E.2d 808, 809-10 (1943); Lewandowski v. Beverly, 420
       N.E.2d 1278, 1282 (Ind. Ct. App. 1981).

              If, however, the cause of action is one that was not in existence in
       1852, it is necessary to determine whether it is closer to a claim at law or
       one in equity. “To determine whether or not a party is entitled to a trial by
       jury, we look beyond the label given a particular action and evaluate the
       nature of the underlying substantive claim.” Hacienda Mexican Restaurant
       v. Hacienda Franchise Group, Inc., 641 N.E.2d 1036, 1041 (Ind. Ct. App.
       1994). This involves evaluating “the complaint, the rights and interest[s]
       involved, and the relief demanded.” Levinson, 644 N.E.2d at 1267.

       In this appeal, Gates contends that our opinion in Cunningham is dispositive and

requires reversal of the trial court’s order denying a jury trial. In Cunningham, we held

that the defendant was entitled to a jury trial after he was issued a traffic ticket for

speeding, a Class C infraction. We agreed with the defendant that he was entitled to a

jury trial under Article I, Section 20 of the Indiana Constitution, and our reasoning was as

follows:

       Clearly, the simplest way to determine whether a respondent has the right
       to a jury trial in a proceeding for a speeding infraction would be to look at
       the 1852 statutes governing speed zones. That approach is of little help
       here, however, because the earliest versions of today’s speed zone statutes
                                             4
      were not codified until 1939. We must therefore proceed to the alternative
      path of analysis that Justice Boehm discusses [in his concurring opinion in
      Midwest Sec. Life Ins. Co.]: whether the cause of action at issue is
      equitable or legal in nature. We must determine whether an action for a
      traffic infraction would have been considered equitable had it existed in
      1852. We hold that it would not have been an equitable action.

               In making this determination, we note that, until 1981, an infraction
      was considered a criminal action and was not governed by what were then
      titled the Indiana Rules of Civil Procedure. Wirgau, 443 N.E.2d at 329,
      n.1. . . . It is clear that from the time of their inception until 1981, when the
      Indiana Rules of Civil Procedure and, now, the Indiana Rules of Trial
      Procedure began to govern the enforcement of infraction violations, such
      offenses were criminal actions and, as such, were not equitable in nature.

                                           ***

              Though they are now governed by the Indiana Rules of Trial
      Procedure, speeding infractions remain quasi-criminal in nature—they are
      enforced by the police; complaints are initiated and litigated by a
      prosecuting attorney on behalf of the State; and violators are fined by the
      government. Because of this, it logically follows that, just as criminal
      actions were outside the scope of equitable actions as provided by our case
      history, so, too, would quasi-criminal actions have been historically non[-
      ]equitable. Instead, in 1852, actions criminal in nature would necessarily
      have been legal. In such actions, a jury trial demand must be honored.
      Midwest Sec. Life Ins. Co., 730 N.E.2d at 169. We therefore hold that the
      trial court improperly denied Cunningham’s request for a jury in violation
      of Article I, Section 20 of the Indiana Constitution.

835 N.E.2d at 1077-79 (emphases added, footnotes omitted).

      Here, the trial court found, and the parties agree, that the ordinances at issue did

not exist prior to 1852. Accordingly, we must determine whether this cause of action

would have been considered a claim of equity or law in 1852. See id. at 1077. With

respect to the nature of the underlying substantive claim, namely, the ordinance

violations, our supreme court has held that “the violation of city ordinances” are “of a




                                             5
quasi criminal nature.” See Lickey v. City of South Bend, 206 Ind. 636, 640, 190 N.E.

858, 860 (1934).3

       We also find Cunningham instructive on this question. While the nature of the

ordinances at issue in this case has not previously been considered by this court, the

violations at issue are quasi-criminal because they are enforced by the Indianapolis

Department of Public Safety,4 complaints are initiated and litigated by a prosecuting

attorney on behalf of the City, and violators are fined by the government.                        See

Cunningham, 835 N.E.2d at 1079. And we agree with Gates that the mandatory fines

imposed in this case are akin to claims for money damages, which were “exclusively

legal actions in 1852[.]” See id. at 1078.

       The City is correct that it is well established that “prosecution for the violation of a

city ordinance in which a monetary penalty only is sought is a civil and not a criminal

action.” See Boss v. State, 944 N.E.2d 16, 21 (Ind. Ct. App. 2011). But in Boss, we

addressed only the question of double jeopardy where the defendant’s criminal charges

“stemmed from the same incident involving Boss’s dogs from which the ordinance

violations arose.” Id. That question is entirely distinct from the question of whether the

violation of the same ordinances would have been addressed in a court of equity or a

court of law in 1852. As such, Boss is not instructive here.




       3
           In Lickey, the defendant allegedly violated an ordinance that “provided for the licensing of
peddlers and hawkers[.]” 206 Ind. 636, 190 N.E. 858, 860.
       4
         The Indianapolis Department of Public Safety (“DPS”) is described as a “police agency” on the
complaints filed against Gates, and DPS oversees both the Indianapolis Metropolitan Police Department
and the Animal Care and Control Division. See Indianapolis-Marion County, Ind., City-County
General Ordinance No. 251-101.
                                                  6
       While the ordinances at issue here can be used to abate and prevent nuisances, the

City has not sought injunctive relief but will impose mandatory fines as provided for in

Section 531-401 and Section 531-203. The trial court points out that the City “likely will

follow its practice and request an injunction against future violations of Chapter 531 if it

prevails against Mr. Gates.” Appellant’s App. at 12. But there is no injunctive relief

requested in the case as it now stands, and it would be improper for us to speculate as to

what the City might do in the future.

       The City’s request for monetary relief under the ordinances is unlike, for example,

a foreclosure action, in which a court in equity would be permitted to hear a legal claim

for breach of contract in conjunction with the injunctive relief sought. See Songer, 771

N.E.2d at 66 (holding where the essential features of a suit sound in equity, the entire

controversy is drawn into equity, including incidental questions of a legal nature). Here,

again, only monetary damages are sought and there is no basis for drawing that legal

claim into equity. The nature of the underlying substantive claims brought against Gates

is quasi-criminal, and he is entitled to a jury trial under Article I, Section 20 of the

Indiana Constitution. We reverse and instruct the trial court to grant Gates’ jury trial

request.

       Reversed and remanded with instructions.

BAILEY, J., and BARNES, J., concur.




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