      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                FILED
      court except for the purpose of establishing                         Mar 15 2017, 9:14 am

      the defense of res judicata, collateral                                  CLERK
      estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Daniel Hoagland                                          Jeffrey P. Smith
      Fremont, Indiana                                         David K. Hawk
                                                               Hawk, Haynie, Kammeyer &
                                                               Smith, LLP
                                                               Fort Wayne, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Hoagland,                                         March 15, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               76A04-1603-SC-574
              v.                                               Appeal from the Steuben Circuit
                                                               Court
      Town of Clear Lake,                                      The Honorable Allen N. Wheat,
      Appellee-Plaintiff                                       Special Judge
                                                               Trial Court Cause No.
                                                               76C01-1503-SC-255



      Mathias, Judge.


[1]   The Steuben Circuit Court entered a judgment in favor of defendant Daniel

      Hoagland (“Hoagland”). Hoagland appeals the judgment pro se arguing that


      Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017         Page 1 of 13
      the trial court lacked jurisdiction and erred when it failed to dismiss the Town

      of Clear Lake’s (“the Town”) notice of claim. The Town cross-appeals and

      claims that the trial court’s conclusion that Hoagland is not liable for trash

      collection charges is not supported by the evidence.

[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.

                                         Facts and Procedural History

[3]   The Hoagland Family Limited Partnership (“the HFLP”) owns three properties

      in the Town.1 Hoagland and his wife reside in one of the three properties, and

      their residence is also the recorded address for the HFLP.

[4]   The Town charges $135 annually for trash collection and the Town’s clerk-

      treasurer is responsible for sending invoices for the services and collecting

      payment. Specifically, the Town’s ordinance section 52.08 provides in pertinent

      part,

                 (A) The Town may award a contract for the Collection,
                 Removal, and Disposal of Solid Waste and Recyclables and shall
                 pay the contracting person out of general taxation, service rates
                 and charges or through a combination of these methods.


                 (B) It is hereby determined that a just and reasonable charge for
                 the service shall be set from time to time by the Town Council,
                 which charge shall be due and payable in advance, whether



      1
          Only two of the three HFLP properties are at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 2 of 13
              annually, quarterly or monthly. The current annual rate shall be
              $135 as established in 2009 by Ordinance 2009-03. The Town
              Clerk-Treasurer shall collect the charges from each owner and to
              this end shall set up and establish billing and collection
              procedures.


              (C) If any rate, as established by the Town Council and to be
              paid by the user or owner, is not paid within 15 days after the
              payment is due, the amount thereof, together with a penalty of
              10% and a reasonable attorney’s fee may be recovered by the
              Town in a civil action in the name of the Town.


      Appellant’s App. p. 24.


[5]   Historically, Hoagland was personally billed, and he paid the trash collection

      invoices for the three properties owned by the HFLP. However, Hoagland

      failed to pay the 2015 invoice, which was due on January 15, 2015.

[6]   Hoagland asked the Town to waive the 2015 trash collection charges for the

      three properties because the Town’s trash collection contractor damaged a tree

      on one of his properties in 2014. The Town refused to waive the amount owed

      for sanitation in 2015 and instructed Hoagland to resolve his claim for the

      damaged tree with the contractor. Hoagland informed the Town that he would

      not pay the 2015 sanitation invoices for the three properties because he believed

      the Town was at least partially responsible for the damage to the tree.


[7]   In March 2015, the Town initiated a small claims action against Hoagland and

      filed a notice of claim in Steuben Circuit Court. The Town requested a

      judgment in the amount of $297 for unpaid trash collection invoices for two of


      Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 3 of 13
       the three HFLP properties. Specifically, the Town sought $135 for each

       property plus a 10% penalty as authorized under the Town’s ordinance. One of

       the two properties was also Hoagland’s residence.


[8]    A hearing was held on July 21, 2015. At the hearing, Hoagland proceeded pro

       se and argued that he was not the owner of the properties at issue; therefore, he

       was not personally liable for the trash collection invoices. Per Hoagland’s

       request, the trial court continued the hearing to allow Hoagland to obtain

       additional discovery.


[9]    On September 8, 2015, Hoagland filed a motion to dismiss the Town’s notice of

       claim pursuant to Trial Rules 12(B)(6), and 41(B) and (E). Among other claims,

       Hoagland noted that he is not the owner of the properties and asserted that he is

       not a real party in interest. Consequently, he argued that he established as a

       matter of law that the Town cannot prevail on its notice of claim, and the trial

       court should grant his motion to dismiss. Hoagland’s motion was denied

       without a hearing.


[10]   The small claims trial was concluded on January 8, 2016. Shortly thereafter, the

       small claims court entered a judgment in Hoagland’s favor and issued the

       following findings of fact:


               1. The case at bar involves an unpaid trash collection fee in the
               amount of $297.00 which Town billed directly to Hoagland for
               trash collection services provided to 804 South Clear Lake Drive
               and 1114 South Clear Lake Drive for calendar year 2015.



       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 4 of 13
        2. Town has entered into a contract with Sanitation Solutions,
        LLC to provide trash collection services for residences located
        within the jurisdictional limits of Town.


        3. 804 South Clear Lake Drive and 1114 South Clear Lake Drive
        are located within the jurisdictional limits of Town.


        4. Property owners are assessed an annual trash collection fee in
        the total amount of $135.00.


        5. This annual trash collection fee of $135.00 has not been
        increased by Town since 2009.


        6. Hoagland contends that he is not responsible for paying
        Plaintiff’s Exhibits 1 and 2 for the reason that he did not own
        these two (2) parcels of real estate on January 1, 2015.


        7. Rather, Hoagland’s argument continues, the titles to 804 South
        Clear Lake Drive and 1114 South Clear Lake Drive appear upon
        the records of the Steuben County Recorder to be in the name of
        the Hoagland Family Limited Partnership, such being a separate
        legal entity. This is not disputed by Town.


        8. The Court concludes that the two (2) parcels of real estate
        identified on Plaintiff’s Exhibits 1 and 2 were both titled in the
        name of the Hoagland Family Limited Partnership on January 1,
        2015.


        9. Clear Lake Ordinance 52.08 (B) provides, in relevant part,
        that:


                “The Town Clerk Treasurer shall collect the charges from
                each owner and to this shall set up and establish billing
                and collection procedures.” (Emphasis added).
Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 5 of 13
        10. The Court concludes that Hoagland, not being the owner of
        the parcels of real estate located at 804 South Clear Lake Drive
        and 1114 South Clear Lake Drive, cannot be sued in his
        individual capacity unless he has in some manner obligated
        himself to become personally liable for payment of the two (2)
        unpaid trash collection invoices all as set forth on Plaintiff’s
        Exhibits 1 and 2.


        11. Hoagland was aware that the trash collection fees for year
        2015 on the two (2) subject parcels of real estate had not been
        paid.


        12. Hoagland, by email sent January 17, 2015, conditionally
        promised Town to pay the trash collection fees owed to Town for
        year 2015.


        13. The condition precedent which Hoagland expected Town to
        perform was to compensate him for damage to a tree located at
        1114 South Clear Lake Drive which was caused by the actions of
        Town’s trash collection contractor -Sanitation Solutions, LLC.


        14. Town rejected Hoagland’s conditional offer to pay trash
        collection fees for year 2015. Hoagland was not compensated by
        Town for the damaged tree.


        15. Hoagland, therefore, cannot be held individual liable for the
        unpaid 2015 trash collection fees on a theory of implied contract
        or promissory estoppel.


Appellant’s App. pp. 8-11 (record citations and footnote omitted). The small

claims court issued a judgment in Hoagland’s favor.




Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 6 of 13
[11]   Even though the court entered judgment in his favor, Hoagland filed a motion

       to correct error. He again argued the small claims court lacked jurisdiction to

       enter the judgment and was void ab initio. His motion was denied on February

       16, 2016.

[12]   Proceeding pro se, Hoagland timely filed a notice of appeal. The Town has filed

       a cross-appeal and argues that the small claims court erred when it concluded

       that Hoagland was not personally liable for the trash collection invoices for the

       two HFLP properties.

                                            Hoagland’s Appeal

[13]   Hoagland appeals the judgment entered in his favor and against the Town. It is

       well-settled that a party cannot secure appellate review of a favorable decision

       unless he is in some manner aggrieved thereby. Nehl Beverage Co. of Indianapolis

       v. Petri, 537 N.E.2d 78, 82 (Ind. Ct. App. 1989), trans. denied; Hughes v. State,

       473 N.E.2d 630, 632 (Ind. Ct. App. 1985), trans. denied; see also Brumley v.

       Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 770, 780 (Ind. Ct. App. 2011)

       (“A party cannot appeal from a judgment favorable to him.”).


[14]   Hoagland’s decision to appeal the judgment entered in his favor seems to be

       driven by his angst over the trial court’s finding number 3, which provides that

       “804 South Clear Lake Drive and 1114 South Clear Lake Drive are located

       within the jurisdictional limits of Town.” See Appellant’s App. p. 9. In his brief,

       Hoagland repeatedly claims that this finding is not supported by evidence, and




       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 7 of 13
       that the Town could use the finding against him in separate, ongoing litigation

       between the parties.2

[15]   Contrary to Hoagland's assertion, the Town did present evidence via the

       Town’s clerk-treasurer that the properties are located within the jurisdictional

       limits of the Town. Hoagland did not present any contrary evidence.


[16]   For these reasons, that portion of the judgment at issue that pertains to

       Hoagland's appeal is affirmed.3


                                         The Town’s Cross-Appeal

[17]   The Town cross-appeals and argues that the trial court erred when it concluded

       that Hoagland was not personally liable for the trash collection invoices. The

       Town argues that Hoagland personally paid the invoices in years prior to this

       dispute, and, under section 52.08(C) of the Town’s ordinance, the Town had

       the right to bill Hoagland for the trash collection fees on his properties. As he

       did at trial, Hoagland argues that he is not liable for the fees because he does

       not own the properties.


[18]   At trial, the Town presented evidence that in prior years, Hoagland had paid

       the trash collection invoices for the properties owned by the HFLP from either



       2
         See Town of Clear Lake v. Hoagland Family Limited Partnership, No. 76A05-1606-PL-1241 (pending appeal
       concerning the Town’s decision to penalize the HFLP for failing to connect its properties to the Town’s
       sewer system).
       3
        Hoagland’s claims that the trial court lacked jurisdiction to issue the judgment lack merit. The Steuben
       Circuit Court unquestionably had subject matter jurisdiction over the small claims case. See Ind. Code § 33-
       29-1-1.5 (2011).

       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017              Page 8 of 13
       the HFLP checking account or his personal checking account. Without citation

       to authority, the Town argues that this fact compels the conclusion that

       Hoagland has established an open account with the Town for trash collection

       services, and therefore, he is contractually obligated to pay the annual charges.

[19]   “A party waives any issue for which it fails to develop a cogent argument or

       support with adequate citation to authority.” Zoller v. Zoller, 858 N.E.2d 124,

       127 (Ind. Ct. App. 2006) (citation omitted). Without better citation to authority

       in support of the Town’s argument that Hoagland is liable for the trash invoices

       because he has intermingled his prior payments from personal and HFLP

       accounts, we decline to address the argument. Moreover, interpretation of the

       Town's Ordinance allows us to resolve of this appeal.

[20]   The Town’s Ordinance, section 52.08(B) provides that the Town’s clerk-

       treasurer “shall collect the charges from each owner and to this end shall set up

       and establish billing and collection procedures.” Appellant’s App. p. 24

       (emphasis added). The trial court relied on this language and the agreed fact

       that the HFLP owns the properties at issue to conclude that Hoagland is not

       personally liable for the trash collection charges for those properties.

[21]   The Town argues that the trial court failed to consider the entire ordinance

       which was admitted at trial and contends that Hoagland is personally liable for

       the trash collection charges under section 52.08(C) of the ordinance. In

       pertinent part, section 52.08(C) provides that:




       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 9 of 13
                 if any rate, as established by the Town Council and to be paid by
                 the user or owner, is not paid within 15 days after the payment is
                 due, the amount thereof, together with a penalty of 10% and a
                 reasonable attorney’s fee may be recovered by the Town in a civil
                 action in the name of the Town.


       Id. (emphasis added).


[22]   The rules of statutory construction apply to construe an ordinance. Kaser v.

       Barker, 811 N.E.2d 930 (Ind. Ct. App. 2004), trans. denied. The primary rule of

       statutory construction is to ascertain and give effect to the intent of the statute's

       drafters. City of Jeffersonville v. Hallmark at Jeffersonville, L.P., 937 N.E.2d 402, 406

       (Ind. Ct. App. 2010), trans. denied. The best evidence of that intent is the

       language of the statute. Id. We will interpret the ordinance as a whole and give

       its words their plain, ordinary, and usual meaning. Lucas Outdoor Advertising,

       LLC v. City of Crawfordsville, 840 N.E.2d 449, 452 (Ind. Ct. App. 2006), trans.

       denied.


[23]   Applying the rules of construction to the plain language of the ordinance, and

       considering the ordinance and its purpose as a whole, we conclude that a “user”

       is an individual, other than an owner, who uses the trash services provided by

       the Town. Hoagland resides at the property owned by the HFLP located at

       1114 South Clear Lake Drive and the property at 804 South Clear Lake Drive is

       a rental property. We can reasonably conclude that Hoagland has availed

       himself of the trash services provided by the Town at both properties, as he has




       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 10 of 13
       not claimed otherwise,4 and therefore, he qualifies as a “user” of the trash

       collection services under section 52.08(C) of the Town’s ordinance. Indeed,

       Hoagland's intermingling of HFLP and personal funds in prior payments on

       these accounts indicate that he was a "user" under the Ordinance. For this

       reason, we conclude that the trial court erred when it found that Hoagland

       cannot be held personally liable for the trash collection charges at the two

       HFLP properties.


[24]   We therefore reverse and remand this case to the trial court with instructions to

       enter a judgment in favor of the Town for any unpaid 2015 trash collection

       charges for the HFLP properties together with accrued interest.

                                                   Attorney Fees

[25]   Finally, the Town requests attorney fees and claims that Hoagland’s motion to

       dismiss the Town’s cross-appeal is frivolous and unreasonable. Further, the

       Town argues that Hoagland’s appeal is frivolous and he appealed to harass the

       Town. Hoagland disputes these claims and argues that he is appealing because

       the Town misused the trial court’s finding that his properties were located

       within the jurisdictional limits of the Town in separate litigation concerning

       whether Hoagland must connect to the Town’s sewer system.




       4
         Hoagland cites to the Town’s clerk-treasurer’s testimony that she did not personally witness trash collection
       at Hoagland’s residence. Appellant’s Reply Br. at 47. However, Hoagland did not claim that he did not avail
       himself of the trash collection services provided by the Town.

       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017             Page 11 of 13
[26]   Pursuant to Indiana Appellate Rule 66(E), this court “may assess damages if an

       appeal, petition, or motion, or response, is frivolous or in bad faith. Damages

       shall be in the Court’s discretion and may include attorneys’ fees.” Our court

       exercises “extreme restraint in awarding appellate damages because of the

       potential chilling effect upon the exercise of the right to appeal.” Kalwitz v.

       Kalwitz, 934 N.E.2d 741, 755 (Ind. Ct. App. 2010).


[27]   Hoagland’s decision to appeal the judgment entered in his favor was certainly

       unwise, as it opened the door for the Town's cross-appeal. However, given the

       high-stakes nature of the pending sewer litigation and Hoagland’s concern that

       the finding in this case affects that litigation, we cannot conclude that his appeal

       is vexatious. Importantly, the Town decided to cross-appeal in lieu of (or in

       addition to) pursuing other remedies such as billing the HFLP directly for the

       trash collection charges. For these reasons, we deny the Town’s request for

       appellate attorney fees.


                                                  Conclusion

[28]   We affirm the trial court's finding concerning the location of the parcels within

       the Town. We reverse the trial court’s judgment that Hoagland is not personally

       liable for the trash collection fees at issue and we conclude that Hoagland is

       personally liable for the trash collection charges for his residence at 1114 Clear

       Lake Drive and for the property located at 804 South Clear Lake Drive under

       section 52.08 of the Town’s ordinance.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 12 of 13
[29]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


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




       Court of Appeals of Indiana | Memorandum Decision 76A04-1603-SC-574 | March 15, 2017   Page 13 of 13
