                                                                              Feb 26 2015, 10:14 am




ATTORNEY FOR APPELLANT                                         ATTORNEY FOR APPELLEES
C. Gregory Fifer                                               S. Anthony Long
Applegate Fifer Pulliam, LLC                                   Long & Mathies Law Firm
Jeffersonville, Indiana                                        Boonville, Indiana



                                                IN THE
        COURT OF APPEALS OF INDIANA

Thomas L. Arflack,                                            February 26, 2015

Appellant-Plaintiff,                                          Court of Appeals Cause No.
                                                              87A01-1406-PL-273
        v.                                                    Appeal from the Warrick Circuit Court.
                                                              The Honorable David O. Kelley,
Town of Chandler, Indiana;                                    Judge.
Chandler Town Council; and                                    Cause No. 87C01-1404-PL-472
Town of Chandler Advisory
Plan Commission,
Appellees-Defendants.




Riley, Judge.




Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                           Page 1 of 15
                                        STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Thomas L. Arflack (Arflack), appeals the trial court’s grant of

      Appellees-Defendants’, Town of Chandler, Chandler Town Council, and Town of

      Chandler Advisory Plan Commission (collectively, Chandler), motion to dismiss for

      failure to state a claim pursuant to Indiana Trial Rule 12(B)(6).


[2]   We reverse and remand for further proceedings.


                                                         ISSUES

[3]   Arflack raises two issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court erred in dismissing Arflack’s

      complaint for failing to state a claim pursuant to Indiana Trial Rule 12(B)(6).


[4]   In its brief, Chandler raises one issue, which we restate as: Whether the trial court’s

      order to dismiss was a final, appealable judgment.


                               FACTS AND PROCEDURAL HISTORY

[5]   On January 7, 2013, Arflack was appointed by the Chandler Town Council (Town

      Council) to fill a vacant position as a citizen member of the Town of Chandler

      Advisory Plan Commission (Advisory Plan Commission) with an unexpired term

      ending on December 31, 2013. Arflack subsequently served the unexpired term for

      which he was appointed.


[6]   During its regular meeting of January 6, 2014, the Town Council voted on a motion

      to reappoint Arflack to a new four-year term. The motion was approved by a vote of

      four members in favor and one member against. At the next regular meeting of the
      Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 2 of 15
      Advisory Plan Commission on January 12, 2014, Arflack was elected president by

      majority vote. Thereafter, on January 21, 2014, the Town Council unanimously

      recalled its vote approving Arflack to the Advisory Plan Commission. On March 17,

      2014, the Town Council appointed Thomas Woolen as Arflack’s replacement.


[7]   On April 4, 2014, Arflack filed a verified complaint for declaratory and injunctive

      relief, asserting due process violations because the Town Council had failed to

      provide him with notice and seeking a declaration that the removal was invalid

      pursuant to Indiana Code section 34-14-1-2. Arflack further requested a permanent

      injunction directing that his appointment be recognized until the expiration of the

      current term. On April 23, 2014, Chandler filed a motion to dismiss Arflack’s

      complaint for failure to state a claim upon which relief can be granted in accordance

      with Indiana Trial Rule 12(B)(6). On May 13, 2014, the trial court held a hearing on

      Chandler’s motion and fifteen days later entered its order, summarily granting

      Chandler’s motion to dismiss and awarding Arflack “thirty days to file an amended

      complaint.” (Appellant’s App. p. 4).


[8]   Arflack now appeals. Additional facts will be provided as necessary.


                                      DISCUSSION AND DECISION

                                                     I. Jurisdiction

[9]   Because Chandler presents us with a threshold procedural question, we will address

      its jurisdictional issue prior to proceeding to the merits of the appeal. Specifically,

      Chandler contends that we did not acquire jurisdiction over this appeal because the

      trial court’s grant of its motion to dismiss was not a final judgment. Because the trial
      Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 3 of 15
       court allowed Arflack thirty days to cure the defects of his verified complaint,

       Chandler maintains that the order does not fall within the purview of Indiana

       Appellate Rule 5.


[10]   After the hearing on Chandler’s motion to dismiss for failure to state a claim upon

       which relief can be granted in accordance with Ind. T.R. 12(B)(6), the trial court

       issued an order granting the motion to dismiss and awarding Arflack thirty days to

       cure the defects in his complaint. The clerk’s entry on the trial court’s docket merely

       reflects “[c]ourt enters Order on [Chandler’s] [m]otion to [d]imiss. (Granted).

       [Arflack] is give [sic] thirty days to file Amended Complaint.” (Appellant’s App. p.

       3).


[11]   A trial court’s entry sustaining a motion to dismiss without actually entering

       judgment thereon is insufficient to constitute a final judgment. Constantine v. City-

       County Council of Marion Cnty., 369 N.E.2d 636, 367 (Ind. 1977). The appropriate

       procedure for adjudging a motion to dismiss pursuant to the Indiana Trial Rules is

       discussed by this court in Parrett v. Lebamoff, 383 N.E.2d 1107, 1109 (Ind. Ct. App.

       1979), where we stated:

               In salient part [T.R. 12(B)(6)] provides,
                        When a motion to dismiss is sustained for failure to state a claim
                        under subsection (B)(6) of this rule the pleading may be amended
                        once as of right pursuant to Rule 15(A) within ten (10) days after
                        service of notice of the court’s order sustaining the motion and
                        thereafter with permission of the court pursuant to such rule.
               Clearly this language does not contemplate the immediate entry of judgment
               upon the sustaining of such a motion. Rather it prescribes a procedure
               similar to the old practice on demurrers.

       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015           Page 4 of 15
[12]   In other words, the court should grant the motion, await the expiration of the ten-day

       period or the awarded discretionary time period—in this case, thirty days—and then

       adjudge the dismissal for the failure of the party to plead over. See id. In the

       alternative, the party against whom the motion is granted may advise the court of his

       election not to plead over and thus authorize entry of judgment. Id. Here, Arflack

       filed his notice of appeal prior to the expiration of the thirty days and final

       adjudication and without apprising the trial court of his decision not to plead over.


[13]   However, it is equally clear that the only party harmed by the entry of judgment

       immediately upon the sustaining a T.R. 12(B)(6) motion is the party against whom

       the motion was directed. Id. If he in fact does not wish to plead over—as clearly

       appears to be the case here—then no harm has occurred from the error. See id.


[14]   In addition, we are mindful that Indiana Appellate Rule 66(B) provides that appeals

       should not be dismissed as a matter of right merely because the case was not finally

       disposed of in the court below. We may dismiss such an appeal, or in our discretion,

       we may suspend consideration until the necessary final disposition is made by the

       trial court, or we may decide the issues which have been adjudicated so long as they

       are properly severable. See Ind. Appellate Rule 66(B).


[15]   In this case, we could remand to the trial court with instructions to afford Arflack the

       opportunity to amend and then enter an appropriate judgment. Under the issues the

       parties seek to litigate and after being presented with fully briefed arguments, it

       appears that a remand would merely provide delay for the amount of time necessary

       to secure a procedurally correct entry. We hold that delay to be unnecessary, and
       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015        Page 5 of 15
       that Arflack has waived the error arising from his failure to await the entry of the

       judgment of dismissal. Therefore, we deny Chandler’s request to dismiss this appeal

       for lack of jurisdiction, and we will address the merits of Arflack’s appeal.


                                                 II. Motion to Dismiss


[16]   Arflack contends that the trial court erred in dismissing his complaint against

       Chandler pursuant to T.R. 12(B)(6). The standard of review on appeal from a trial

       court’s grant of a motion to dismiss for the failure to state a claim is de novo and

       requires no deference to the trial court’s decision. Bellows v. Bd. of Comm’rs of Cnty of

       Elkhart, 926 N.E.2d 96, 110 (Ind. Ct. App. 2010). The grant or denial of a motion to

       dismiss turns on the legal sufficiency of the claim and does not require

       determinations of fact. Id. Therefore, a motion to dismiss under Rule 12(B)(6) tests

       the legal sufficiency of a complaint: that is, whether the allegations in the complaint

       establish any set of circumstances under which a plaintiff would be entitled to relief.

       Id. Thus, while we do not test the sufficiency of the facts alleged with regard to their

       adequacy to provide recovery, we do test their sufficiency with regards to whether or

       not they have stated some factual scenario in which a legally actionable injury has

       occurred. Id. In determining whether any facts will support the claim, we look only

       to the complaint and may not resort to any other evidence in the record. Lawson v.

       First Union Mortg. Co., 786 N.E.2d 279, 281 (Ind. Ct. App. 2003).


[17]   Thus, a court should accept as true the facts alleged in the complaint and should not

       only consider the pleadings in the light most favorable to the plaintiff, but also draw

       every reasonable inference in favor of the non-moving party. Trail v. Boys & Girls

       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 6 of 15
       Club of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006). However, a court need not accept

       as true allegations that are contradicted by other allegations or exhibits attached to or

       incorporated in the pleading. Id.


[18]   Here, the trial court dismissed Arflack’s claim without a detailed written opinion as

       to its reasons for dismissal. When a court grants a motion to dismiss without reciting

       the grounds relied upon, it must be presumed on review that the court granted the

       motion to dismiss on all the grounds in the motion. Id.


[19]   In its motion to dismiss pursuant to T.R. 12(B)(6), Chandler asserted three

       alternative grounds: (1) Arflack failed to follow the provisions of Ind. Code § 34-13-

       6-1 et seq.; (2) Arflack failed to allege that he suffered an injury as a result of the

       conduct complained of; and (3) the records attached to Arflack’s complaint were not

       certified or signed. We will review de novo each allegation in turn.


                                       A. Indiana Code section 34-13-6-1 et seq.


[20]   First, Chandler maintains that Arflack failed to timely file his complaint in

       accordance with I.C. § 34-13-6-1, which governs the appeals from actions of

       municipalities. Specifically, I.C. § 34-13-6-1 provides that

               (a) An appeal allowed by statute from any action or decision of:
               ***
               (3) the legislative body of a town;
               Shall be filed as an original complaint against the city or town in the circuit
               or superior court of the county in which the municipality is located.
               (b) The complaint on appeal must be filed no later than thirty (30) days after
               the date of the action or decision complained of.

       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015               Page 7 of 15
       Because Arflack’s appointment to the Advisory Plan Commission was revoked by

       the Town Council on January 21, 2014, Chandler asserts that Arflack’s verified

       complaint, filed on April 4, 2014, was filed outside the statutory period of thirty

       days.


[21]   In his verified complaint, Arflack contends

               10. Following Arflack’s reappointment to the [Advisory Plan Commission],
               the Town Council, as the appointing authority for Arflack’s position on the
               [Advisory Plan Commission], could only remove Arflack as a member of
               the [Advisory Plan Commission] for cause by providing written notice of the
               removal along with written reasons for the removal mailed to Arflack at his
               residence address in accordance with the provisions of Ind. Code § 36-7-4-
               218(f).
               11. The Town Council has never provided Arflack with any written notice
               of his removal from the [Advisory Plan Commission] or the reasons
               constituting any claimed cause for such removal.
       (Appellant’s App. p. 7).


[22]   Pursuant to the statute relied upon by Arflack, the Town Council could only remove

       Arflack for cause after having re-appointed him by providing him with written notice

       thereof. See I.C. § 36-7-4-128(f). Even though the Town Council approved to

       rescind his re-appointment on January 21, 2004, Arflack never received a written

       notice. On March 17, 2014, the Town Council appointed Arflack’s replacement to

       the Advisory Plan Commission, and on April 4, Arflack filed his verified complaint.


[23]   Although we agree that Arflack’s action was subject to the thirty-day limitation

       period as enacted in I.C. § 34-13-6-1(b), “[a] civil action is premature when it has not

       accrued so that the plaintiff can legally institute an action for relief.” ITT Hartford
       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015       Page 8 of 15
       Ins. Group v. Trowbridge, 626 N.E.2d 567, 569 (Ind. Ct. App. 1993), reh’g denied. A

       cause of action accrues, and the statute of limitation begins to run, when a claimant

       knows, or in the exercise of ordinary diligence should have known, of the injury.

       Planz v. Foster, 888 N.E.2d 756, 759 (Ind. 2008). For an action to accrue, it is not

       necessary that the full extent of the damage be known or even ascertainable, but only

       that some ascertainable damage has occurred. Id. The exercise of reasonable

       diligence means simply that an injured party must act with some promptness where

       the acts and circumstances of an injury would put a person of common knowledge

       and experience on notice that some right of his has been invaded or that some claim

       against another party might exist. Perryman v. Motorist Mut. Inc. Co., 846 N.E.2d 683,

       689 (Ind. Ct. App. 2006).


[24]   Arflack’s complaint disputes the manner in which the Town Council quashed his

       appointment and installed his successor. Even though the Town Council revoked

       Arflack’s appointment on January 21, 2014, no cause of action accrued at that time

       because the Town Council failed to notify him in writing of that decision and Arflack

       statutorily continued to “serve[] until his successor [was] appointed and qualified.”

       I.C. § 36-7-4-218(a). Therefore, it was not until March 17, 2014, when the Town

       Council appointed Arflack’s successor and the damage became ascertainable, that

       the statute of limitations commenced to run. As Arflack filed his verified complaint

       on April 4, 2014, well within the thirty-day period, his cause of action is not time-

       barred.


                                                          B. Injury


       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 9 of 15
[25]   Next, Chandler contends that Arflack’s verified complaint for declaratory and

       injunctive relief “does not allege that he sustained or was in imminent danger of

       sustaining any injury as a result of the conduct complained of, and he is therefore not

       entitled to declaratory relief.” (Appellee’s Br. p. 13).


[26]   Indiana Code section 34-14-1-2 provides that “[a]ny person interested under a deed,

       will, written contract, or other writings constituting a contract, or whose rights,

       status, or other legal relations are affected by a statute, municipal ordinance,

       contract, or franchise, may have determined any question of construction or validity

       arising under the instrument, statute, ordinance, contract, or franchise and obtain a

       declaration of rights, status, or other legal relations thereunder.” The purpose of the

       statute is “to settle and to afford relief from uncertainty and insecurity with respect to

       rights, status and other legal relations; and is to be liberally construed and

       administered.” I.C. § 34-14-1-12.


[27]   In relying on the Uniform Declaratory Judgments Act, Arflack alleged in his

       complaint that “[t]he Town Council’s action in purporting to remove Arflack from

       his appointed position on the [Advisory Plan Commission] without notice has

       operated to deprive Arflack of his due process right to appeal the removal through

       judicial review[.]” (Appellant’s App. p. 7). In other words, by removing Arflack

       from his appointed position in a purported violation of the notice requirement of I.C.

       § 36-7-4-128(f ), Arflack’s due process rights were violated, and he is now seeking a

       declaration as to the validity of his removal. Linked to Arflack’s requested judicial

       declaration is his uncontested request for a permanent injunction, directing Chandler


       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 10 of 15
       to recognize him as the properly appointed member of the Advisory Plan

       Commission and to institute him for the remainder of his term.


[28]   Unlike Chandler, we find that Arflack’s complaint sufficiently asserted a factual

       scenario in which a legally actionable injury has occurred. Id.


                                               C. Uncertified Attachments


[29]   Lastly, while Chandler sought the dismissal of Arflack’s cause before the trial court

       based on the unsigned, uncertified copies of the Town Council’s meeting minutes

       attached to the verified complaint, Chandler now concedes on appeal that “the trial

       court’s dismissal [] was not based solely upon Arflack’s failure to attach signed,

       certified copies[.]” (Appellees Br. p. 16).


[30]   While we agree with Chandler’s concession to a certain extent, we hold that a trial

       court cannot dismiss a party’s complaint based solely on the party’s failure to file a

       properly certified attachment with its pleading. Indiana Trial Rule 9.2(A) provides

       that when a pleading, allowed by the rules, is founded on a written instrument, the

       original, or a copy thereof, must be included or filed with the pleading. These

       documents, if not objected to under oath in a responsive pleading, are “deemed

       admitted into evidence” pursuant to T.R. 9(B). However, it is undeniable that

       Chandler objected to the admission of the unsigned and uncertified attachments.


[31]   Without having to address Arflack’s assertion that his complaint is not based on a

       written instrument, the effect of noncompliance with T.R. 9.2(A) is governed by T.R.

       9.2(F), in which the correction of an essential written document may be subject to a

       trial court order to amend the complaint and rectify the attachments or the trial
       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 11 of 15
       court, in its discretion, may allow the action to continue without further pleading.

       As such, Arflack’s “failure to comply with the pleading requirements of T.R. 9.2(A)

       does not warrant dismissal of the complaint.” Wilson v. Palmer, 452 N.E.2d 426, 429

       (Ind. Ct. App. 1983).


[32]   We are mindful that we view motions to dismiss for failure to state a claim with

       disfavor because such motions undermine the policy of deciding causes of action on

       their merits. Hill v. Beghin, 644 N.E.2d 893, 895 (Ind. Ct. App. 1994), trans. denied.

       Based on our review, we conclude that Arflack’s complaint sufficiently states a set of

       allegations upon which a trial court may grant relief. Runde v. Vigus Realty, Inc., 617

       N.E.2d 572, 575 (Ind. Ct. App. 1993). Therefore, we reverse the trial court’s grant of

       Chandler’s motion to dismiss and remand this cause to the trial court for proceedings

       on the merits.1


                                                       CONCLUSION

[33]   Based on the foregoing, we conclude that the trial court’s order to dismiss was a

       final, appealable order and the trial court erred by granting Chandler’s motion to

       dismiss based on a failure to state a claim.


[34]   Reversed and remanded for further proceedings.


[35]   Baker J. concurs




       1
        Even though Arflack fully briefed its cause on the merits, at this point in time, only the trial court’s grant of
       Chandler’s motion to dismiss is properly before this court and subject to our review.
       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                                  Page 12 of 15
[36]   Vaidik, C.J. concurs in result with separate opinion




       Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015   Page 13 of 15
                                                IN THE
        COURT OF APPEALS OF INDIANA

Thomas Arflack,                                                [Add Hand-down date]

Appellant-Plaintiff,                                           Court of Appeals Case No.
                                                               87A01-1406-PL-273
        v.                                                     Appeal from the Warrick Circuit Court
                                                               The Honorable David O. Kelley, Judge
Town of Chandler, Indiana,                                     Trial Court Cause No. 87C01-1404-PL-
Chandler Town Council, and Town                                472
of Chandler Advisory Plan
Commission,
Appellees-Defendants




Vaidik, Chief Judge, concurring in result.

The majority concludes that the trial court’s dismissal order was a final, appealable

order and the court erred by granting Chandler’s motion to dismiss based on a failure

to state a claim. I agree with this result; however, I write separately because I believe

the majority improperly resolves the ultimate issue of whether Arflack could only be

removed for cause and was entitled to written notice of his removal from the Town

Council.


A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint,

not the facts that support it. See Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602,

604 (Ind. 2007) (citation omitted). A court should accept as true the facts alleged in

the complaint, and should not only consider the pleadings in the light most favorable

to the plaintiff, but also draw every reasonable inference in favor of the non-moving
Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                    Page 14 of 15
party. Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.2d 1, 4 (Ind. 2014)

(citation omitted).


The parties dispute whether Arflack’s complaint, filed on April 4, 2014, is time-

barred. The Town Council argues that the thirty-day window for filing began on

January 21, 2014, when Arflack’s appointment was rescinded by Town Council vote,

and Arflack’s complaint, filed seventy-three days later, was thus untimely. Arflack

argues that the thirty-day window began on March 14, 2014, when his Town

Council successor was appointed, and his complaint, filed twenty-one days later, is

therefore timely. Arflack’s claim hinges on his argument that the Town Council

could only remove him for cause and with written notice, which it did not provide,

and in the absence of written notice, he did not learn of his cause of action until

March 14, 2014. At this stage, we should accept Arflack’s assertions as true. We

should not, however, decide the ultimate issue.


The majority notes that “no cause of action accrued [as of January 21, 2014] because

the Town Council failed to notify [Arflack] in writing of [its] decision . . . .” Slip op.

at 9. To me, this suggests that the majority has gone beyond testing the legal

sufficiency of Arflack’s complaint and resolved (in his favor) Arflack’s claim that he

could only be removed for cause and was entitled to written notice from the Town

Council. I would not go so far: accepting Arflack’s assertions as true, I would simply

reject the Town Council’s claim that Arflack’s complaint is untimely and leave the

determination regarding for-cause removal for the trial court. To that end, I

respectfully concur in result.


Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 15 of 15
