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                       Sep 18 2019, 8:33 am
the defense of res judicata, collateral
                                                                        CLERK
estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Kevin C. Smith                                           Christopher Cooper
Kristen D. Hill                                          Law Office of Christopher Cooper,
Smith Sersic                                             Inc.
Munster, Indiana                                         Griffith, Indiana

Angela M. Jones
Law Offices of Angela M. Jones
Munster, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lake County, Indiana,                                    September 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PL-420
        v.                                               Appeal from the Lake Superior
                                                         Court
Guy Mikulich,                                            The Honorable John M. Sedia,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45D01-1803-PL-32



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019            Page 1 of 6
                                          Case Summary
[1]   In May of 2017, Guy Mikulich filed a disability-retirement-benefit application

      with the Lake County Sheriff’s Merit Board (“Merit Board”). In January of

      2018, the Merit Board denied Mikulich’s application, causing Mikulich to file a

      complaint seeking administrative review. In August of 2018, Lake County (“the

      County”) moved to dismiss Mikulich’s complaint pursuant to Indiana Trial

      Rules 12(B)(1) and 12(B)(6) (“Rule 12 Motion”). In November of 2018, the trial

      court denied the County’s motion and remanded the matter to the Merit Board

      for a full evidentiary hearing. The County contends that the trial court erred by

      (1) remanding the matter to the Merit Board as part of its order denying the

      County’s Rule 12 Motion and (2) failing to dismiss Count IV of Mikulich’s

      complaint. Because we agree, we affirm in part, reverse in part, and remand for

      further proceedings consistent with this memorandum decision.



                            Facts and Procedural History
[2]   On May 27, 2017, Mikulich, a former Lake County Sheriff’s Department police

      officer, filed his third disability-retirement-benefit application with the Merit

      Board. During its July 20, 2017, public meeting, the Merit Board reviewed

      Mikulich’s application and directed the application to the Pension Committee

      for its review and recommendation. At its January 18, 2018, public meeting, the

      Merit Board adopted the Pension Committee’s recommendation and denied

      Mikulich’s application.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019   Page 2 of 6
[3]   On January 30, 2018, Mikulich filed for administrative review of the Merit

      Board’s denial of his disability application. On August 6, 2018, the County filed

      a Rule 12 Motion. On November 14, 2018, the trial court held a hearing on the

      County’s motion. On November 15, 2018, the trial court denied the County’s

      motion and remanded the matter to the Merit Board, ordering the Merit Board

      to conduct a full evidentiary hearing on Mikulich’s disability application. On

      December 14, 2018, the County filed its answer to Mikulich’s complaint, a

      motion to correct error, and a motion to stay enforcement of the trial court’s

      order. On January 24, 2019, the trial court denied the County’s motion to

      correct error but granted its motion to stay.



                                 Discussion and Decision
[4]   The County contends that the trial court erred by (1) ordering that the matter be

      remanded to the Merit Board before allowing the County an opportunity to file

      an answer to Mikulich’s complaint pursuant to Trial Rule 6(C), and (2) failing

      to dismiss Count IV of Mikulich’s complaint. Indiana Trial Rule 12(B)(1) is a

      motion to dismiss for “[l]ack of jurisdiction over the subject matter[.]”


              The standard of review for Trial Rule 12(B)(1) motions to dismiss
              is a function of what occurred in the trial court. If the facts before
              the trial court are not in dispute, then the question of subject
              matter jurisdiction is purely one of law. Under those
              circumstances no deference is afforded the trial court’s
              conclusion because appellate courts independently, and without
              the slightest deference to trial court determinations, evaluate
              those issues they deem to be questions of law. Thus, we review
              de novo a trial court’s ruling on a motion to dismiss under Trial

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019   Page 3 of 6
              Rule 12(B)(1) where the relevant facts before the trial court are
              undisputed.


      Bellows v. Bd. of Comm’rs of Cty. of Elkhart, 926 N.E.2d 96, 111 (Ind. Ct. App.

      2010) (internal citations and quotations omitted). Indiana Trial Rule 12(B)(6) is

      a motion to dismiss for “[f]ailure to state a claim upon which relief can be

      granted[.]”


              A motion to dismiss for failure to state a claim tests the legal
              sufficiency of the claim, not the facts supporting it. When ruling
              on a motion to dismiss, the court must view the pleadings in the
              light most favorable to the nonmoving party, with every
              reasonable inference construed in the non-movant’s favor. We
              review a trial court’s grant or denial of a Trial Rule 12(B)(6)
              motion de novo. We will not affirm such a dismissal unless it is
              apparent that the facts alleged in the challenged pleading are
              incapable of supporting relief under any set of circumstances.


      Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal citations and

      quotations omitted).


                                          I. Trial Rule 6(C)
[5]   The County contends that the trial court erred by ordering that this matter be

      remanded to the Merit Board when it denied the County’s motion to dismiss.

      Indiana Trial Rule 6(C) provides that


              (C) Service of Pleadings and Rule 12 Motions. A responsive
              pleading required under these rules, shall be served within twenty
              [20] days after service of the prior pleading. Unless the court
              specifies otherwise, a reply shall be served within twenty [20]
              days after entry of an order requiring it. The service of a motion
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019   Page 4 of 6
              permitted under Rule 12 alters the time for service of responsive
              pleadings as follows, unless a different time is fixed by the court:


              (1) if the court does not grant the motion, the responsive pleading
              shall be served in ten [10] days after notice of the court’s action[.]


[6]   Here, the trial court denied the County’s Rule 12 motion to dismiss; however, it

      also granted Mikulich a remedy by remanding the matter to the Merit Board for

      a full evidentiary hearing. Said remedy was not at issue in the County’s Rule 12

      motion but, rather, a prayer for relief sought by Mikulich in his complaint, a

      complaint to which the County had the right to file a responsive pleading after

      the trial court denied its Rule 12 Motion. We conclude that the trial court was

      required to allow the County to file a responsive pleading to Mikulich’s

      complaint and consider it before determining whether a remedy was

      appropriate. Therefore, the trial court’s order remanding this matter to the

      Merit Board was erroneous.


                   II. Exhaustion of Administrative Remedies
[7]   The County contends that the trial court erroneously denied its Rule 12 Motion

      regarding Count IV of Mikulich’s complaint. Count IV of Mikulich’s complaint

      alleges that he was denied due process as a result of Justin Murphy’s service as

      the Merit Board’s attorney in the appellate proceedings regarding the denial of

      Mikulich’s first application and the current proceedings regarding Mikulich’s

      third application, both of which were occurring simultaneously. Specifically,

      the County argues that because Mikulich failed to raise this issue before the

      Merit Board, he failed to exhaust the administrative remedies available to him.
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019   Page 5 of 6
[8]   Indiana law requires a claimant with an administrative remedy available to

      pursue that remedy before being allowed access to the courts. Lake Cty. Sherriff’s

      Merit Bd. v. Peron, 756 N.E.2d 1025, 1028 (Ind. Ct. App. 2001). If a party fails to

      exhaust available administrative remedies, the trial court lacks jurisdiction over

      the subject matter. Id. “By requiring a party to first pursue all available

      administrative remedies before allowing access to the courts, premature

      litigation may be avoided, an adequate record for judicial review may be

      compiled, and agencies retain the opportunity and autonomy to correct their

      own errors.” Id. A review of the record in this matter demonstrates that

      Mikulich failed to raise his concern with Murphy’s representation before the

      Merit Board. Because Mikulich failed to exhaust the administrative remedies

      available to him, we conclude that the trial court lacked subject matter

      jurisdiction over Count IV of Mikulich’s complaint and erroneously denied the

      County’s motion to dismiss said count.


[9]   The judgment of the trial court is affirmed in part, reversed in part, and

      remanded for further proceedings consistent with this memorandum decision.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-420| September 18, 2019   Page 6 of 6
