MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Dec 29 2016, 8:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David M. Brooks                                          Gregory F. Hahn
Brooks, Koch & Sorg                                      Bryan H. Babb
Indianapolis, Indiana                                    Joel T. Nagle
                                                         Bose McKinney & Evans, LLP
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Election of the Mayor                          December 29, 2016
of the City of Mitchell                                  Court of Appeals Case No.
                                                         47A04-1602-MI-402
                                                         Appeal from the Lawrence Circuit
Dan Terrell,                                             Court
Appellant-Petitioner,                                    The Honorable E. Michael Hoff,
                                                         Jr., Special Judge
        v.
                                                         Trial Court Cause No.
                                                         47C01-1511-MI-1311
John “JD” England,
Appellee-Respondent



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016      Page 1 of 13
[1]   Dan Terrell (“Terrell”) ran against John England (“England”) and others for

      the mayoralty of Mitchell in Lawrence County, Indiana. England prevailed

      over Terrell by four votes. Terrell contested that result in Lawrence Circuit

      Court and lost. Twice defeated, Terrell now appeals and asks this court to order

      a special election.


[2]   We affirm.


                                      Facts and Procedural Posture

[3]   On November 3, 2015, the city of Mitchell, Indiana, went to the polls to elect a

      new mayor. Four candidates held themselves out for that office: Terrell,

      England, Eugene “Pud” Terrell,1 and William “Bill the Truck Driver” Conley.

      The office of the Lawrence County Clerk, then and now held by Myron Rainey

      (“Rainey”), administered the election. The county election board certified the

      following returns:

                                      J. England                             499
                                      D. Terrell                             495
                                      E. Terrell                             229
                                      W. Conley                                 8

[4]   By statute, Terrell had fourteen days after election day to challenge the results.

      On November 13, 2015, ten days after the election, Terrell filed a “Verified

      Petition for Recount and to Contest Election” in Lawrence Circuit Court. As




      1
          No relation to petitioner-appellant.


      Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 2 of 13
      required by statute, the petition alleged that Terrell “in good faith believe[d]”

      that one or more grounds for a recount and contest existed. Appellee’s App. p.

      12. However, the petition made no factual allegations in support of this belief; it

      simply recited the statute defining permissible grounds for challenge. The

      petition was signed by Terrell but not by his counsel.


[5]   Four days later, on November 17, 2015, the last day of the fourteen-day

      statutory period, due to the importance and sensitive nature of the case,

      England moved for a change of judge. The motion was granted and the matter

      venued to Judge E. Michael Hoff, Jr., of Monroe Circuit Court for appointment

      of a special judge. Judge Hoff was appointed and assumed jurisdiction the same

      day.


[6]   Also on November 17, 2015, England moved to strike Terrell’s petition for lack

      of counse’s signature. On November 20, 2015, seventeen days after the election,

      Terrell asked the court’s leave to amend his petition to supply the missing

      signature. Terrell further asked that the amendment relate back to the date of

      the first filing, to evade the running of the fourteen-day period. On December 3,

      2015, the court granted Terrell’s request in full.

[7]   On November 24, 2015, the court appointed a recount commission and ordered

      the election materials impounded. The commission was to meet for the first

      time on December 7, 2015. On December 2, 2015, at a status conference called

      by Terrell, the parties agreed to dispose of the recount before moving on to the

      election contest, and to postpone the recount to allow time for party review of


      Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 3 of 13
       the election materials. The commission was sworn and charged, and the

       recount rescheduled for December 16, 2015.


[8]    On December 10, 2015, the parties reviewed the election materials. On

       December 15, 2015, the day before the recount was to be conducted, Terrell

       moved for dismissal of the recount, which the court granted. Terrell’s contest

       petition, now the sole remaining claim, was set for a bench trial on January 4,

       2016, continued on Terrell’s motion to January 13, 2016.


[9]    On December 23, 2015, Terrell moved for a temporary restraining order and a

       preliminary injunction against England taking office until Terrell’s contest

       petition could be heard. Terrell complained of numerous errors in the

       administration of the election revealed by the parties’ review of the election

       materials on December 10, 2015. In support of the motion, Terrell submitted

       the affidavit of his local counsel, William Mullis (“Mullis”), who had served as

       a poll inspector for two of Mitchell’s four precincts on election day. Mullis

       affirmed inter alia that, on election day, Rainey directed him to allow several

       voters to vote in person who appeared to have already received absentee ballots

       by mail. On December 28, 2015, the court denied Terrell’s motion for a

       restraining order and injunction.


[10]   On December 31, 2015, England moved to dismiss Terrell’s contest petition.

       England claimed that the errors alleged by Terrell in his motion for a restraining

       order and injunction could not have been discovered before the parties first

       accessed the election materials on December 10, 2015. Accordingly, England


       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 4 of 13
       argued, Terrell could not have “in good faith believe[d]” that grounds for a

       recount and contest existed when he so alleged in his verified petition on

       November 13, 2015. Dismissal was warranted, England concluded, because

       Terrell had verified a falsehood, because he had failed to prosecute his petition

       in a statutorily timely manner, and because he had failed to state a claim under

       the terms of the statute.


[11]   On January 4, 2016, England submitted what he styled a “Supplemental

       Designation of Evidence” in support of this motion to dismiss. The evidence

       was an article about the election challenge published in a local daily newspaper

       on January 1, 2016, quoting Terrell’s Indianapolis counsel: “Of course we

       didn’t know [what the grounds for contest would be] beforehand. . . . You

       really never know in a recount or contest what you’re going to find until you

       look. . . . This is the way it’s done all the time.” Appellee’s App. p. 44. Terrell

       did not respond to England’s motion for nine days, until the parties were in

       open court on January 13, 2016, to try the contest petition.


[12]   On January 13, 2016, the day set for trial on the petition, the court first

       conducted a hearing on the motion to dismiss. The court heard the testimony of

       Terrell, Mullis, and the author of the January 1, 2016, newspaper article on the

       issue of whether Terrell and Mullis “in good faith believe[d]” that grounds for a

       recount and contest existed on November 13, 2015.


[13]   Mullis testified, as in his affidavit, that he had seen voters vote in person on

       election day who were marked in the poll books as having received absentee


       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 5 of 13
       ballots by mail. Mullis testified further that, although he had voted early in

       person, he was not marked in the poll books on election day as having already

       voted. Finally, Mullis testified that, after election day but before November 13,

       2015, he was made aware of unspecified problems with voter registration in

       connection with absentee voting, two absentee voters having received primary

       rather than general election ballots, and two voters having voted from addresses

       where they did not reside. Terrell testified that he had complained to Rainey

       before election day that Rainey was accepting absentee ballots from voters who

       had not submitted the identification necessary to register to vote.


[14]   Before, during, and after this testimony, the court heard extensive argument

       from both sides on the propriety and the merits of the motion. At the

       conclusion of the hearing, the court took the motion under advisement, and

       proceeded to trial on the merits of the contest petition.


[15]   On January 29, 2016, the court entered its findings of fact, conclusions of law,

       and two orders. On the basis of the evidence submitted on the motion to

       dismiss, the trial court found that, as a matter of historical fact, Terrell and

       Mullis did not have an adequate basis for a good faith belief that grounds for

       contest existed on November 13, 2015, when the verified contest petition was

       first filed. The court therefore granted England’s motion to dismiss on those

       grounds.


[16]   Out of an abundance of caution in such an important and sensitive case, the

       court then proceeded to consider the merits of Terrell’s petition. The court


       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 6 of 13
       found, and the parties do not now dispute, several apparently well-intentioned

       violations of election law committed by Rainey and his office in the

       administration of the election. These violations resulted in the erroneous

       counting of certain ballots that had not been properly cast. The court held that

       these errors were saved by a statutory exception allowing unlawful ballots to be

       counted if rendered unlawful solely by the acts or omissions of election officials,

       and that, in any event, Rainey’s maladministration did not rise to the level of

       election misconduct required to trigger judicial review and correction by our

       supreme court’s decision in Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004). The

       court therefore entered an “alternative order” denying Terrell’s contest petition

       and request for a special election on their merits. Appellee’s App. p. 45.


[17]   This appeal followed. Terrell asked our supreme court to grant emergency

       transfer under Indiana Appellate Rule 56(A). Docket, “Verified Motion for

       Transfer” (Apr. 1, 2016). The motion was denied. Docket, “Order” (May 6,

       2016). This court therefore retains jurisdiction over Terrell’s appeal.


                                          Standard of Review

[18]   When a trial court enters findings and conclusions, we apply a two-tiered

       standard of review. Anderson v. Ivy, 955 N.E.2d 795, 800 (Ind. Ct. App. 2011),

       trans. denied. First, we determine whether the evidence supports the findings;

       second, we determine whether the findings support the judgment. Id. Out of

       deference to the trial court’s proximity to the issues, we disturb the judgment

       only where no evidence supports the findings or the findings fail to support the


       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 7 of 13
       judgment. Id. (quotations and citations omitted). The findings will stand unless

       clearly erroneous. Id. Pure conclusions of law are reviewed de novo. Id.


                                      Discussion and Decision

[19]   We need not, however, proceed to review the trial court’s findings and

       conclusions. The trial court correctly granted England’s motion to dismiss. This

       was sufficient to resolve the case, and the “alternative order” denying Terrell’s

       petition on its merits should not have been undertaken. Because the grounds for

       dismissal were plain on the face of Terrell’s petition, the “alternative order,” as

       well as the factual findings and legal conclusions on which both orders rested,

       are moot. The trial court characterized Terrell’s petition as a “fishing

       expedition.” Appellee’s App. p. 48. We agree. The expedition should not have

       been allowed to proceed.


[20]   Indiana law supplies two methods for challenging the results of an election:

       recounts and contests. Ind. Code ch. 3-12-6 (recounts in local elections), ch. 3-

       12-8 (contests in local elections). A successful contestor is entitled to a special

       election. I.C. § 3-12-8-17(d). To guard against overuse of judicial review to

       nullify the electorate’s free and considered choices, “[a] special election should

       be ordered only in rare and exceptional cases.” Pabey v. Pastrick, 816 N.E.2d

       1138, 1150 (Ind. 2004).


[21]   The statutes giving rise to the contest action “fall into the class of laws referred

       to as ‘nonclaim statutes.’” State ex rel. Bodine v. Elkhart Cty. Election Bd., 466

       N.E.2d 773, 776 (Ind. Ct. App. 1984). The procedures required by such statutes

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 8 of 13
       are not severable from the substance of the claims which they authorize. The

       procedure is, so to speak, baked into the substance, as a “condition precedent

       for the enforcement of [the] right of action” itself. Id. Failure to comply with the

       statutory procedure is not subject to the ordinary limitations of waiver and

       estoppel, leaving the underlying claim intact. Rather, procedural default here

       means that the right of action itself “becomes unenforceable” and is “forever

       barred.” Id. Thus, it is usually said that “one seeking relief under the [recount

       and contest] statute must bring himself strictly within its terms.” Slinkard v.

       Hunter, 209 Ind. 475, 199 N.E. 560, 562 (1936); see also, e.g., Young v. Noble Cir.

       Ct., 263 Ind. 353, 332 N.E.2d 99 (1975) (failure to caption correctly results in

       dismissal); Marra v. Clapp, 255 Ind. 97, 262 N.E.2d 630 (1970) (same).


[22]   A candidate wishing to contest an election must file a verified contest petition

       no later than noon fourteen days after election day. I.C. § 3-12-8-5(a). Among

       other requirements, the petition must state that the petitioner “in good faith

       believes” that one or more statutory grounds for contest exist. Id. § 6(a)(3) (“the

       good faith requirement”). As relevant here, grounds for contest exist where:


               (2) [a] mistake occurred in the printing or distribution of ballots
               used in the election that makes it impossible to determine which
               candidate received the highest number of votes[,]

               (3) [a] mistake occurred in the programming of an electronic
               voting system, making it impossible to determine the candidate
               who received the highest number of votes[,]

               (4) [a]n electronic voting system malfunctioned, making it
               impossible to determine the candidate who received the highest

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 9 of 13
                number of votes[, or]

                (5) [a] deliberate act or series of actions occurred making it
                impossible to determine the candidate who received the highest
                number of votes cast in the election.


       Id. § 2(2) to (5) (“Grounds for contest”); see also id. § 6(a)(3)(B) to (E) (nearly

       identical language with respect to “contents of verified petition”), § 17(d)

       (nearly identical language with respect to “[h]earing and determination of

       contest”). If the petition was not filed in compliance with the statutory

       requirements, it may not be amended after the fourteen-day period has run. Id. §

       6.5(b)(1).


[23]   On receipt of the petition, the trial court gives notice of the contest to the

       contestee and directs him to appear and answer the petition on a return day

       fixed in the notice. Id. § 8(a). The return day may be extended for “good cause.”

       Id. § 10. The court must set the petition for trial on a day no later than twenty

       days after the return day. Id. § 16. This too may be extended under exceptional

       circumstances. State ex rel. Arredondo v. Lake Cir. Ct., 271 Ind. 176, 391 N.E.2d

       597 (1979).2




       2
         That the trial court may extend or toll these periods shows that they cannot be jurisdictional. England’s
       jurisdictional argument on these grounds therefore fails. We note that it is ten years now since our supreme
       court made clear that ordinary procedural errors are not jurisdictional defects, and that whatever remains of
       the notion of “jurisdiction over the individual case” is no longer good law. K.S. v. State, 849 N.E.2d 538, 542
       (Ind. 2006).
       More specifically, procedural default in the context of nonclaim statutes extinguishes the litigant’s cause of
       action; it does not extinguish the court’s power to hear a claim the litigant may have. See discussion of
       nonclaim statutes ¶ 21supra.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016            Page 10 of 13
[24]   The contest process is governed by the Indiana Rules of Trial Procedure unless

       the contest statute requires otherwise. I.C. § 3-12-8-5.5(2) (contest petition filed

       as a “miscellaneous civil action.”); id. § 17(a) (Contest “shall be heard and

       determined by the court without a jury subject to the [Trial Rules].”); Ind. Trial

       Rule 1 (“Except as otherwise provided, these rules govern the procedure and

       practice in all courts of th[is] state . . . in all suits of a civil nature whether

       cognizable as cases at law, in equity, or of statutory origin.” (emphasis added)).

       The trial court must determine the issues raised by the contestor’s petition and

       the contestee’s answer. I.C. § 3-12-8-17(b). If the court finds that one or more of

       the grounds for challenge have been proved, such that it is impossible to

       determine which candidate received the most legal votes, the court must order a

       special election. Id. § 17(d); Dobyns v. Weadon, 50 Ind. 298, 302 (1875) (The

       “true gravamen of the case, whatever may be the ground of contest, is the

       highest number of legal votes.”) (emphasis added and internal quotation

       omitted) (quoted in Pabey, 816 N.E.2d at 1149).


[25]   Terrell’s petition was subject to dismissal because Terrell did not bring himself

       strictly within the terms of the contest statute. The petition was not in

       compliance with the statute and the Trial Rules because it was not properly

       verified when filed and not later amended before the fourteen-day nonclaim

       limitations period had run.


[26]   Contest petitions must be verified. I.C. § 3-12-8-5(a). Verification is governed by

       Trial Rule 11. See State ex rel. Kosciusko Cir. Ct., 273 Ind. 101, 103, 402 N.E.2d

       1231, 1232 (1980) (applying T.R. 11 to contest statute). Trial Rule 11 requires

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016   Page 11 of 13
       “[e]very pleading . . . of a party represented by an attorney [to] be signed by

       least one attorney of record . . . .” T.R. 11(A). On November 13, 2015, Terrell

       was represented by Mullis. On that day, Terrell filed a pleading, which was

       required under the rule to be signed by Mullis but was not. The pleading was

       therefore not in compliance with the statute and the Trial Rules. See T.R. 41(E)

       (dismissal for failure to comply with Trial Rules); Appellee’s App. p. 27

       (England’s motion to dismiss under same rule).

[27]   The election was held on November 3, 2015. The fourteen-day nonclaim

       limitations period expired at noon on November 17, 2015. Terrell moved to

       amend his improperly verified pleading on November 20, 2015, the third day

       after the fourteen-day period had run. The trial court granted the motion to

       amend and allowed the amendment to relate back to the original filing date.

       This was error. Because the petition was not originally filed in compliance with

       the statutory requirements, amendment was not permitted after the fourteen-

       day period. I.C. § 3-12-8-6.5(b)(1); see also, e.g., Gossard v. Vawter, 215 Ind. 581,

       21 N.E.2d 416 (1939) (no error where contest petition was dismissed as

       improperly verified for failure to include the jurat before statutory deadline).

[28]   Dismissal was therefore proper on these grounds. We need not and do not

       decide more.3




       3
         As at trial, so on appeal: principles of judicial restraint counsel that a court should not decide more than is
       necessary to dispose of the case before it. To do otherwise, to issue a ruling that will not further alter the legal
       relations of parties, is to issue an advisory opinion, which this court will not do. Reed v. State, 796 N.E.2d
       771, 775 (Ind. Ct. App. 2003); see generally 20 Am. Jur. 2d Courts § 43 (2015) (“Unnecessary decisions by a

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016               Page 12 of 13
                                                      Conclusion

[29]   England’s motion to dismiss Terrell’s petition for failure to comply with the

       contest statute and the Trial Rules was properly granted. Once that order was

       entered, Terrell’s cause of action was extinguished, and the trial court’s

       alternative order had no object on which to operate. That order, as well as the

       findings and conclusions on which it rests, are therefore void and of no force

       and effect.


[30]   Affirmed.


       Robb, J., and Brown, J., concur.




       court are to be avoided.”); 21 C.J.S. Courts § 179 (2007) (“Under the cardinal principle of judicial restraint, if
       it is not necessary to decide more, then it is necessary not to decide more.”).

       Court of Appeals of Indiana | Memorandum Decision 47A04-1602-MI-402 | December 29, 2016              Page 13 of 13
