MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Feb 09 2017, 7:53 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT
Clifford M. Robinson
Office of Corporation Counsel
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

City of Indianapolis,                                    February 9, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1510-OV-1721
        v.                                               Appeal from the Marion Superior
                                                         Court
Erick Amaro-Sanchez,                                     The Honorable Patrick J. Dietrick,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1507-OV-25072



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 1 of 13
[1]   The City of Indianapolis (the “City”) appeals from the trial court’s order of

      judgment entered in favor of Erick Amaro-Sanchez. The City raises one issue,

      which we revise and restate as whether the court abused its discretion in

      denying the City’s motion to correct error when it did not consider evidence

      presented at a bond hearing in rendering its judgment. We affirm.


                                       Facts and Procedural History

[2]   On July 29, 2015, the City filed a complaint against Amaro-Sanchez alleging

      violations of various city ordinances of the Revised Code of the Consolidated

      City of Indianapolis and Marion County (the “Revised Code”) relating to an

      incident occurring on July 21, 2015, in which three dogs owned or kept by him

      “escaped from his property and attacked at [sic] ten (10) year old girl, causing

      severe injuries to her back and legs.” 1 Appellant’s Appendix at 22. That same

      day, the City filed a Petition for Bond to Cover Costs of Impoundment and for

      an Order on Disposition of Animals (the “Bond Petition”) under Section 531-

      727 of the Revised Code requesting bonding fees for the three dogs, including

      an impoundment fee of twenty dollars per dog and kenneling fees of five dollars

      per dog, per day, for thirty days. On August 5, 2015, the court held a hearing




      1
       The record on appeal does not contain the complaint. As stated in the Bond Petition referenced below, the
      violations alleged included:
            Three (3) violations of Section 531-401 (Care and Treatment); three (3) violations of 531-202
            (No Permanent Identification); three (3) violations of 531-301 (No Rabies Vaccinations); three
            (3) violations of 531-302 (No Rabies Tags); two (2) violations of 531-109 (Owner Responsibility
            for Animal Bite); and two (2) violations of 531-102(c)(2) (At-Large Attack on a Person) . . . .”
      Appellant’s Appendix at 23.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017         Page 2 of 13
on the Bond Petition at which the victim, victim’s mother, City of Indianapolis

Animal Care and Control employees Officer Newinski and Sergeant Webb, 2

and Amaro-Sanchez testified. At the hearing, the City’s attorney noted that

Amaro-Sanchez had surrendered two of the dogs and that they were seeking

impoundment fees for the third dog, which was the oldest of the three dogs.

The court discussed the following regarding the standard of review at the

hearing:


           [T]he City has to come forward and put forth some evidence[.]
           And the standard for today’s hearing is almost akin to a TRO
           hearing. The standard is not a preponderance, they don’t have to
           prove their case on the merits of the underlying ordinance
           violation. The rule required to, and I’m quoting from section 5-
           32-7-27 B, “IF the Court finds there Is a reasonable likelihood
           that the City will prevail in the merits of the ordinance
           enforcement action then the Court shall order the owner to post a
           cash bond as provided in this section to cover the fees and other
           costs in the care of the animal for a specific period of time not
           less than thirty days beginning on the date of the impoundment.”
           . . . And what that means is that the – if we had our trial on the
           merits of the case on or before [August 21], and the defendant did
           post that bond and prevailed on the merits of the case, where we
           have our preponderance of evidence standard then the dog would
           be returned The [sic] dog would be kept alive.


Transcript at 98-99. It granted the City’s Bond Petition in the amount of $170.




2
    The transcript lists “?” as the first names for Officer Newinski and Sergeant Webb. Transcript at 33, 70.


Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017             Page 3 of 13
[3]   On August 26, 2015, the court held a bench trial on the complaint. At the

      outset of the trial, the following exchange occurred:

              THE COURT: All right, is there anything that we need to take
              up before we get into evidence?


              [City’s Counsel]: No, You Honor. We are just going to ask that
              you incorporate the evidence that we had at the Bonding.


              THE COURT: All right, [defense counsel], the City has made a
              request that the evidence, and I am looking through the file it
              looked like there’s twenty-one photographs that were admitted
              into evidence as well as testimony of various witnesses be
              admitted into this hearing. Does [Amaro-Sanchez] have any
              response to that request?


              [Defense Counsel]: Well, Your Honor, ultimately we were – are
              we going to have witnesses?


              [City’s Counsel]: Today, no.


              [Defense Counsel]: Your Honor, based on the preliminary
              testimony that was given, I don’t believe that the State has
              reached its burden. And therefore, I mean without cross
              examining these defendants, or these alleged victims we believe
              that the State has not met its burden to even proceed.


              THE COURT: Let me ask you this, [City’s Counsel]. Does the
              State have any witnesses that they are going to be calling today?


              [City’s Counsel]: No, Your Honor. We called our witnesses at
              the bond hearing. We got all the information that we wanted on
              the record at that hearing.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 4 of 13
        THE COURT: Okay. So the City – the City in this case is
        basically going to incorporate the witness testimony and exhibits
        that were entered in the bond hearing back on the 5th, I believe.
        And rest?


        [City’s Counsel]: Yes, Your Honor.


        THE COURT: Okay. [Defense Counsel], notwithstanding your
        motion, did the defendant intend to put on any additional
        evidence today?


        [Defense Counsel]: We --- well, we were planning on it
        depending on what the alleged victim may state today, but short
        of that.


        THE COURT: Okay. Okay, interesting. All right, well again
        it’s the City’s burden so if the City’s position is that the evidence
        that was presented on the 5th was sufficient to meet their burden
        for the alleged violations, I guess that’s the City’s position. Do
        we want to – or is there going to be argument made on that,
        [City’s Counsel]?


        [City’s Counsel]: Just in closing, Your Honor, I mean I can do a
        brief introduction as well, just to kind of refresh the Court. I
        know it’s been about three weeks.


        THE COURT: Well, The Court – the Court’s familiar with the
        case. Okay, Yea, well let’s go ahead and do – we’ll do that and
        then [Defense Counsel] certainly I’ll give the defendant an
        opportunity to present any evidence that it wishes to present and
        then make argument as well. Okay?


        [Defense Counsel]: That’s fine.


Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 5 of 13
      Id. at 105-107.


[4]   Following this exchange, the parties gave opening statements, the City rested,

      and Amaro-Sanchez testified. The court took the matter under advisement.


[5]   On September 3, 2015, the court issued its Order of Judgment stating that

      Amaro-Sanchez admitted to one violation each as to Sections 531-202, 531-301,

      and 531-302 of the Revised Code, that the City had to prove by a

      preponderance of the evidence the defendant’s violation of each of the other

      violations charged in the complaint, and that the City

              has not met its burden in proving the same more specifically that
              [Amaro-Sanchez] allowed his dog(s) to attack and injure a person
              who did not provoke the animal prior to the attack and that two
              (2) of [his] dogs were three (3) months of age or older as a
              condition precedent to certain violations alleged in the
              complaint.


      Appellant’s Appendix at 5. The court found Amaro-Sanchez guilty on the three

      counts he admitted to violating and not guilty on the remaining violations.


[6]   On September 25, 2015, the City filed its motion to correct error asserting that it

      satisfied its burden and proved each violation by a preponderance of the

      evidence based upon the evidence presented at the Bond Petition hearing. On

      September 28, 2015, the court issued its order on the City’s motion to correct

      error stating as follows:




      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 6 of 13
        This matter is before the court on the [City’s] Motion to Correct
        Error filed September 25, 2015. For the reasons stated herein,
        the [City’s] Motion is DENIED.


        The [City] in its present motion contends that the Court erred in
        its Order of Judgement against [Amaro-Sanchez] dated
        September 3, 2015. Specifically, the [City] states that it “fully
        satisfied its burden in proving by a preponderance of the evidence
        that the violations alleged in its complaint did occur and that
        [Amaro-Sanchez’s] dogs did bite K.C. on July 21, 2015.”
        Plaintiff’s Motion, p. 1.


        The Court is at a loss to understand how the [City] can so
        contend when it put on no witnesses and introduced no evidence
        at the trial in this case held on August 26, 2015. At trial, the
        [City] orally moved to introduce and incorporate evidence from
        an August 5, 2015 animal bonding hearing. [Amaro-Sanchez]
        objected and did not so stipulate. The [City] thereafter rested
        without calling any witnesses or introducing any evidence.


                                             *****


        . . . [Amaro-Sanchez] at trial on August 26, 2015 did not
        stipulate, and in fact objected to, the [City’s] request to
        incorporate the testimony presented at the prior bond hearing.
        [Amaro-Sanchez] rightfully demanded that the [City], the party
        who brought the Complaint and bore the burden of proving by a
        preponderance of the evidence each element of its claims, put on
        its case and meet its burden of proof. . . .




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 7 of 13
      Id. at 17, 19. 3


                                                          Discussion

[7]   At the outset, we note that Amaro-Sanchez has failed to file an appellee’s brief.

      When an appellee fails to submit a brief, we do not undertake the burden of

      developing its arguments, and we apply a less stringent standard of review, that

      is, we may reverse if the appellant establishes prima facie error. D & D NAPA,

      Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce Dev., 44 N.E.3d 67, 73

      (Ind. Ct. App. 2015). This rule was established so that we might be relieved of

      the burden of controverting the arguments advanced in favor of reversal where

      that burden properly rests with the appellee. Id. Questions of law are still

      reviewed de novo. Id.


[8]   The issue is whether the court abused its discretion in denying the City’s motion

      to correct error when it did not consider evidence presented at a bond hearing in

      rendering its judgment. Generally, we review rulings on motions to correct

      error for an abuse of discretion. Fifty Six LLC v. Metro. Dev. Comm’n of Marion

      Cty., 38 N.E.3d 726, 731 (Ind. Ct. App. 2015), reh’g denied; trans. denied; see also

      Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g

      denied. An abuse of discretion occurs if the trial court’s decision is against the

      logic and effect of the facts and circumstances before it, or the reasonable




      3
          Page 18 of the Appellant’s Appendix is blank.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 8 of 13
       inferences drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind. Ct.

       App. 2008), reh’g denied.


[9]    The City argues that the court abused its discretion when it did not consider the

       evidence presented at the Bond Petition hearing after the City requested that it

       incorporate by reference such evidence at the outset of the bench trial. It asserts

       that the court “never indicated that it would not incorporate the evidence –

       multiple authority exists to permit the incorporation of evidence in similar

       proceedings.” Appellant’s Brief at 7. It directs the Court’s attention to a

       previous opinion holding that “[a] trial court may take judicial notice of law, a

       fact, or of the contents of the pleadings and filings in the case before it.” Arms v.

       Arms, 803 N.E.2d 1201, 1209 (Ind. Ct. App. 2004) (citing Sanders v. State, 782

       N.E.2d 1036 (Ind. Ct. App. 2003); Ind. Evidence Rule 201).


[10]   The court in Arms held that “incorporating by reference evidence presented in

       an earlier hearing” is allowable “when doing so would prevent redundancy.

       That is, courts allow it when it will minimize needless and time-consuming

       duplication of effort that results in nothing more than the presentation of

       evidence that is identical to or cumulative of evidence previously placed before

       the court in the same case.” Id. at 1209-1210. However, the Court in Arms also

       discussed whether the objecting party would be unfairly prejudiced by the

       incorporation of the earlier-heard evidence. See id. at 1210 (reviewing whether

       evidence at the earlier hearings was “admitted for a different purpose”). At the

       August 26, 2015 bench trial, the City asked the court to incorporate the

       evidence presented at the Bond Petition hearing, noting that it “called [its]

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 9 of 13
       witnesses at the bond hearing. We got all the information that we wanted on

       the record at that hearing.” Transcript at 106. During this exchange, Defense

       Counsel stated its belief that the City had not met its burden of proof based on

       the testimony presented at the Bond Petition hearing and that, while he was

       planning on putting on a defense “depending on what the alleged victim may

       state today, but short of that,” he was unclear how to proceed at trial. Id. at

       107. The court in its order on the City’s motion to correct error stated that

       Amaro-Sanchez did not stipulate to the City’s motion to incorporate and that

       its statements during the relevant exchange at the bench trial constituted an

       objection to the same.


[11]   For guidance, we turn to the case of L.H. v. State, 878 N.E.2d 425 (Ind. Ct.

       App. 2007), in which this Court explained that evidence from a preliminary

       child-hearsay evidentiary hearing should not be incorporated into the fact-

       finding hearing on the merits of the delinquency petition because the fact-

       finding hearing provided more procedural safeguards than the preliminary

       hearing. 878 N.E.2d at 429-430. For example, evidence could be received at

       the preliminary hearing that would not be admissible at the trial. See Ind.

       Evidence Rule 104(a) (when court is deciding preliminary questions, “the court

       is not bound by evidence rules”). In addition, a party “would clearly approach

       a child hearsay hearing differently than he would a trial as far as the making of

       objections and the scope of his questioning.” L.H., 878 N.E.2d at 430.


[12]   We find that the same logic applies in this instance. As noted above, at the

       Bond Petition hearing the court applied a reasonable likelihood of success on

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 10 of 13
       the merits standard, which is a lower standard than a preponderance standard.

       Importantly, there is nothing in the record to indicate that the City gave Amaro-

       Sanchez notice of its intent to incorporate the testimony from the Bond Petition

       hearing. The different standards being employed may have led Defense

       Counsel to alter the scope of his questioning and not question the City’s

       witnesses as forcefully at the Bond Petition hearing as he would have at trial.

       See id. (noting the differences between a preliminary hearing and the trial on the

       merits may lead counsel to alter “the scope of his questioning”). We conclude

       that the court did not abuse its discretion in denying the City’s motion to

       correct error.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm the trial court’s denial of the City’s motion

       to correct error.


[14]   Affirmed.


       May, J., concurs.


       Baker, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 11 of 13
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       City of Indianapolis,                                    Court of Appeals Case No.
                                                                49A02-1510-OV-1721
       Appellant-Plaintiff,

               v.

       Erick Amaro-Sanchez,
       Appellee-Defendant.




       Baker, Judge, dissenting.


[15]   I respectfully dissent, because I do not believe that the defendant raised a

       sufficient objection to the City’s request to incorporate the evidence presented at

       the Bond Petition hearing. I acknowledge the portions of argument where

       counsel indicated that Amaro-Sanchez had intended to cross-examine the City’s

       witnesses and present his own evidence at that final hearing, but at no point did

       counsel actually object to the City’s request. I assume that the City’s attorney

       arrived at the hearing without witnesses present to testify; if that was, indeed,

       the case, the defendant’s attorney should have requested a continuance so that

       he could subpoena those witnesses to be present at a future hearing.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 12 of 13
[16]   It is true, as the majority points out, that an objecting party may have a valid

       argument that he would be unfairly prejudiced by the incorporation of the

       earlier-heard evidence. Arms, 803 N.E.2d at 1210. Here, however, I do not

       believe that Amaro-Sanchez was an objecting party. Furthermore, at no point

       did the trial court indicate that the City’s request to incorporate the evidence

       from the preliminary hearing would be fatal to its case. Had either of these

       instances occurred—had Amaro-Sanchez objected or moved for a continuance,

       or the trial court indicated that it expected the City to make its case anew at the

       final hearing—the City could have adapted and presented evidence. But I do

       not believe it fair to penalize the City where no objection or concern was raised

       either by opposing counsel or by the trial court. As a result, I would reverse the

       trial court’s order and remand with instructions that it consider the evidence

       presented at the Bond Petition hearing.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-OV-1721 | February 9, 2017   Page 13 of 13
