                                                                         Feb 10 2016, 6:03 am




ATTORNEYS FOR APPELLANT                                    APPELLEE PRO SE
Brian J. Paul                                              Dennis Foreman
Daniel E. Pulliam                                          Indianapolis, Indiana
Anne K. Ricchiuto
Faegre Baker Daniels LLP
Indianapolis, Indiana

Amy B. Jones
Silvia B. Miller
Health and Hospital Corporation of
Marion County
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Health and Hospital Corporation                            February 10, 2016
of Marion County,                                          Court of Appeals Case No.
Appellant-Plaintiff,                                       49A02-1504-OV-229
                                                           Appeal from the Marion Superior
        v.                                                 Court,
                                                           Environmental/Community
Dennis Foreman,                                            Division
                                                           The Honorable David Certo, Judge
Appellee-Defendant.
                                                           The Honorable David Hooper,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G21-1412-OV-70843



May, Judge.



Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016                     Page 1 of 6
[1]   Health and Hospital Corporation of Marion County (HHC) 1 appeals an

      interlocutory order granting Dennis Foreman a change of judge. We reverse

      and remand.


                                     Facts and Procedural History
[2]   In 2014, 2 HHC filed a complaint for injunction and fine against Foreman based

      on allegations a residence he owned did not meet certain HHC code

      requirements. At the initial hearing, the trial court heard arguments regarding

      Foreman’s pro se motion for change of judge. HHC objected to Foreman’s

      motion, citing Ind. Code § 16-22-8-31(e), which outlines the process whereby a

      “change of venue from a judge” may be achieved for HHC-related proceedings,

      and Ind. Code § 34-35-3-3, which is cited as the source of the requirements for a

      change of judge under Ind. Code § 16-22-8-31(e).


[3]   The trial court granted Foreman’s motion for a change of judge. On March 3,

      2015, HHC filed a motion for certification for interlocutory appeal, and the trial

      court certified its order for interlocutory appeal. We accepted jurisdiction on

      May 19, 2015.




      1
          HHC is “a municipal corporation as created by Indiana Code 16-22-8, et seq.” (App. at 6.)
      2
        The Chronological Case Summary indicates HHC filed its complaint on December 12, 2014. However, the
      complaint is file stamped November 10, 2014. The date the complaint was filed does not affect the issues in
      this appeal.

      Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016                     Page 2 of 6
                                      Discussion and Decision
[4]   We first note Foreman proceeded at trial and proceeds in this appeal pro se. A

      litigant who proceeds pro se is held to the same established rules of procedure

      that trained counsel is bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555

      (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a litigant takes when

      he proceeds pro se is that he will not know how to accomplish all the things an

      attorney would know how to accomplish. Id. When a party elects to represent

      himself, there is no reason for us to indulge in any benevolent presumption on

      his behalf or to waive any rule for the orderly and proper conduct of his appeal.

      Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).


[5]   We review de novo questions involving the interpretation of statutes and Indiana

      Trial Rules. See State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind.

      2012) (interpretation of statutes are questions of law and questions of law are

      reviewed de novo); see also Miller v. Danz, 36 N.E.3d 455, 457 (Ind. 2015)

      (interpretation of Indiana Trial Rules is question of law to be reviewed de novo),

      reh’g denied.


              Appellate courts independently, and without the slightest
              deference to trial court determinations, evaluate those issues they
              deem to be questions of law. A pure question of law is one that
              requires neither reference to extrinsic evidence, the drawing of
              inferences therefrom, nor the consideration of credibility
              questions for its resolution.


      Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000).



      Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016   Page 3 of 6
[6]   In State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 400, 157 N.E.2d 475,

      478 (1959), our Indiana Supreme Court decided the procedural rule, which

      required a litigant to file a change of judge motion within ten days “after the

      issues were first closed on the merits,” superseded the more lenient filing

      requirements of the statute governing a request for change of judge in a levee

      proceeding. It held “the right to change judge granted by [the statute] is a

      substantive right which can be conferred only by the Legislature, but the method

      and time of asserting such right are matters of procedure and fall within the

      category of procedural rules.” Id. (emphasis in original).


[7]   In Sayeed v. Dillon, 573 N.E.2d 468, 471 (Ind. Ct. App. 1991), Sayeed, the

      owner of an insolvent prepaid health care delivery plan, sought to change venue

      from Marion County to Lake County of the claim against it brought under a

      portion of the Indiana Code that required liquidation proceedings for those

      types of organizations to be brought in Marion County. Sayeed filed a motion

      for change of venue pursuant to the relevant civil procedure statute in effect at

      the time, which requires the court to change the venue of a civil action “made

      upon affidavit . . . [s]howing to the satisfaction of the court that the

      conveniences of witnesses and the ends of justice would be promoted by the

      change.” Ind. Code § 34-1-13-1 (repealed 1998). However, “[w]hen a change

      of venue is directed for any of the causes mentioned in the third, fourth, and

      fifth specifications of [Ind. Code § 35-1-13-1], the court or judge shall designate

      the county to which the venue shall be changed, which may be in the same or in

      an adjoining court[.]” Ind. Code § 34-1-13-2 (1983) (repealed 1998).


      Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016   Page 4 of 6
[8]   We held, regarding the interaction between the statutes and T.R. 76:

              As a practical matter, the fifth specification of I.C. 34-1-13-1 has
              been superseded in modern times by T.R. 76 which allows an
              automatic change of venue in civil actions to an adjoining county
              without the necessity of showing inconvenience or other
              prejudice. We believe that the only logical interpretation of I.C.
              34-1-13-2 - to the extent it needs interpretation - is to read it as
              being consistent with T.R. 76, that is, as permitting a change of
              venue only to an adjoining circuit/county. We believe it is clear
              that the General Assembly, in enacting the special venue
              provisions for the liquidation of prepaid health care delivery
              plans, intended to limit the ability of litigants to change venue
              from the Marion County circuit court. The automatic change of
              venue provisions of T.R. 76 were eliminated. We hold that
              change of venue provisions applicable to the present liquidation
              proceeding must be read consistently with T.R. 76. We cannot
              believe that our legislature intended to authorize the transfer of
              insurance liquidation cases from Marion County to the far
              corners of the state.


      Sayeed, 573 N.E.2d at 471 (citations omitted). The holdings in Blood and Sayeed

      apply here.


[9]   As in Blood, T.R. 76 controls the time frame in which Foreman could file for a

      change of judge. See T.R. 76(c) (providing time frames for filing motion for

      change of judge under certain situations). However, like in Sayeed, the

      requirements of filing, specifically that Foreman file an affidavit alleging a

      reason for the change of judge, are substantive because they apply to

      requirements for special types of actions, such as those initiated by the HHC.

      See Ind. Code § 16-22-8-31(e) (requiring request for change of judge in actions


      Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016    Page 5 of 6
       regarding the HHC “meet the requirements in IC 34-35-3-3”); see also Ind. Code

       § 34-35-3-3(b) (requiring litigant seeking change of judge to file an affidavit

       concerning why a change of judge is appropriate). As in Sayeed, considering the

       specialized nature of HHC cases, we believe the legislature, in enacting Ind.

       Code § 16-22-8-31(e) and requiring the extra step of providing an affidavit

       regarding the reason for the request for change of judge pursuant to Ind. Code §

       34-35-3-3(b), intended to supersede the more lenient provision regarding change

       of judge in T.R. 76.


                                                  Conclusion
[10]   Because the provisions of Ind. Code § 16-22-8-31(e) and Ind. Code § 34-35-3-3

       required Foreman to file an affidavit concerning why he wanted a change of

       judge, and Foreman did not do so, the trial court erred when it granted

       Foreman’s request for change of judge. We accordingly reverse and remand for

       proceedings consistent with this opinion.


[11]   Reversed and remanded.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1504-OV-229 | February 10, 2016   Page 6 of 6
