      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  Apr 05 2018, 9:15 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.


      APPELLANT PRO SE
      Matthew E. Koch
      Bunker Hill, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Matthew E. Koch,                                          April 5, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                17A-MI-3018
              v.                                                Appeal from the Vanderburgh
                                                                Superior Court
      The Vanderburgh County                                    The Honorable Leslie C. Shively,
      Treasurer,                                                Judge
      Appellee-Respondent                                       Trial Court Cause No.
                                                                82D01-1702-MI-608



      Altice, Judge.


                                                Case Summary


[1]   Matthew E. Koch, pro se, filed a petition against the Vanderburgh County

      Treasurer (the Treasurer) to compel access to public records. The parties filed



      Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018                       Page 1 of 6
      cross motions for summary judgment, and the trial court granted summary

      judgment in favor of the Treasurer.


[2]   We affirm.


                                        Facts & Procedural History


[3]   Koch is serving a thirty-year prison sentence for committing robbery,

      kidnapping, and battery in 2008. His grandfather Norman W. Koch (Norman)

      passed away in 2005, and Koch expected to eventually inherit through a trust

      that would vest at the passing of Koch’s grandmother Pauline A. Koch

      (Pauline). In March 2015, Koch learned that Pauline had died nearly five years

      earlier. Koch then immediately began investigating the disposition of his

      expected inheritance. He sought documents from, among others, the

      Vanderburgh County Clerk, the Vanderburgh County Recorder, the

      Vanderburgh County Assessor, and Old National Bank. Koch was unable to

      discover any valid trust instrument under which he was a beneficiary, and his

      aunt expressly wrote to him that his grandparents’ estates were handled by will

      and that no trust was left for him. Yet Koch continued to believe that members

      of his family were concealing and withholding a trust account from him.


[4]   On December 27, 2016, from the Miami Correctional Facility, Koch mailed an

      access to public records request to the Treasurer, seeking copies of any and all

      inheritance tax records relating to Norman that the Treasurer possessed. In his

      request, Koch noted that he was Norman’s biological grandson and that he

      believed himself to be a defrauded beneficiary.

      Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018   Page 2 of 6
[5]   Candance Nance, a First Deputy Treasurer, received the records request on

      January 3, 2017, and responded by letter the following day with a denial of the

      request. In this letter to Koch, Nance first set out the law related to disclosure

      of inheritance tax information. She explained that Ind. Code § 6-4.1-12-12

      forbade the disclosure of any information related to inheritance tax files except

      in limited instances set out in the statute. Nance noted two of the statutory

      exceptions in which disclosure is allowed – (1) to the attorney listed on the

      inheritance tax return and (2) to a devisee, an heir, a successor in interest, or a

      surviving joint tenant of the decedent for whom an inheritance tax return was

      filed or upon the receipt of a written request, to an agent or attorney of a

      devisee, an heir, a successor in interest, or a surviving joint tenant of the

      decedent. See I.C. § 6-4.1-12-12(a)(10), (11). After setting out the law, Nance

      stated in the letter:


              I have spoken with the Department of Inheritance and the Public
              Access Counselor, both advised me to quote you the law. Based
              on this information I cannot send you any record we maintain.
              The Department of Inheritance has also informed me that you
              have been in contact with them for the same information. I am
              to let all correspondence go through them.


      Appendix at 16.


[6]   On January 20, 2017, Koch filed in the Vanderburgh Superior Court a petition

      to compel access to public records. In its answer, the Treasurer asserted a

      number of affirmative defenses, including that pursuant to I.C. § 6-4.1-12-12 the



      Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018   Page 3 of 6
      requested records are confidential and may not be produced to Koch. The

      parties eventually filed cross motions for summary judgment.


[7]   Included within the Treasurer’s designated evidence was Nance’s affidavit,

      dated July 10, 2017. In her affidavit, Nance reiterated that the records

      requested by Koch are confidential and may not be produced to him.

      Moreover, in paragraph 6, Nance averred that the Treasurer’s Office does not

      have any documents in its possession relative to Norman’s estate.


[8]   On August 8, 2017, the trial court held a telephonic hearing regarding the

      summary judgment motions. Koch has not provided us with a transcript, but

      the CCS reveals that at the conclusion of the hearing, the trial court granted the

      Treasurer ten days to amend its answer. The Treasurer filed an amended

      answer two days later, adding “Mistake” to the list of affirmative defenses.

      Appendix at 25. Koch responded with a motion to strike “materials concerning

      the affirmative defense of mistake from the record.” Id. at 27. Koch argued

      that the affirmative defense was not pled with the specificity as required by

      Indiana Trial Rule 9(B)1 and, therefore, should be stricken. He also challenged

      Nance’s affidavit to the extent that it indicated that none of the requested

      documents were in the possession of the Treasurer’s Office.




      1
        T.R. 9(B) provides in relevant part: “In all averments of fraud or mistake, the circumstances constituting
      fraud and mistake shall be specifically averred.”

      Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018                       Page 4 of 6
[9]    The trial court held a telephonic hearing on October 26, 2017, for which we

       have not been provided with a transcript. On November 20, 2017, the trial

       court issued an order denying Koch’s motion to strike and taking the summary

       judgment motions under advisement. Thereafter, on November 28, 2017, the

       trial court issued an order summarily granting summary judgment in favor of

       the Treasurer.


                                               Discussion & Decision


[10]   We begin by observing that the Treasurer has not filed an appellee’s brief. As a

       result, we will not undertake the burden of developing arguments on the

       Treasurer’s behalf and will reverse if Koch establishes prima facie error. See

       Duty v. CIT Group/Consumer Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017).

       Prima facie, in this context, means at first sight, on first appearance, or on the

       face of it. Id. This standard, however, “does not relieve us of our obligation to

       correctly apply the law to the facts in the record in order to determine whether

       reversal is required.” Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015).


[11]   On appeal, Koch argues that the trial court erred by denying his motion to

       strike the newly added affirmative defense of mistake.2 Further, he argues that




       2
         Koch also baldly asserts that paragraph 6 of Nance’s affidavit must be stricken, but he provides no cogent
       argument in this regard. Indiana Trial Rule 56(E) provides in part: “Supporting and opposing affidavits shall
       be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matters stated therein.” Paragraph 6 of the affidavit
       is clearly based on Nance’s personal knowledge and addresses a matter with which she is competent to
       testify. Moreover, the fact to which Nance avers – that the Treasurer’s Office does not possess the requested
       documents – is relevant and admissible evidence.

       Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018                          Page 5 of 6
       even if not stricken, Nance’s original letter and her subsequent affidavit

       contradict each other and present a genuine issue of material fact regarding

       whether the Treasurer has possession of the requested documents.


[12]   Whether the Treasurer properly amended the complaint to allege the defense of

       mistake is of no moment here. The designated evidence plainly establishes that

       the Treasurer does not possesses the documents sought by Koch. Indeed,

       Nance averred, “the Vanderburgh County Treasurer’s Office does not have any

       documents in their possession relative to the Estate of Norman Koch.”

       Appendix at 15. Contrary to Koch’s assertion on appeal, the letter that Nance

       originally sent to him did not indicate that the Treasurer actually possessed the

       requested records. Rather, the letter simply advised Koch – a prolific filer in the

       county – of the general law regarding the confidentiality and disclosure of

       inheritance tax documents. Based on this law, Nance indicated that she could

       not send Koch “any record we maintain.” Id. at 16.


[13]   Because it is axiomatic that the Treasurer cannot produce records that it does

       not possess, the trial court properly granted summary judgment in favor of the

       Treasurer. See, e.g., Quirk v. Delaware County, 91 N.E.3d 1008, 1013 (Ind. Ct.

       App. 2018) (summary judgment is appropriate where the designated evidence

       shows there is no genuine issue of material fact and the moving party is entitled

       to judgment as a matter of law).


[14]   Judgment affirmed.


[15]   Najam, J. and Robb, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018   Page 6 of 6
