MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                                           May 25 2016, 9:11 am
this Memorandum Decision shall not be
                                                                                      CLERK
regarded as precedent or cited before any                                         Indiana Supreme Court
                                                                                     Court of Appeals
court except for the purpose of establishing                                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
John J. Schwarz, II                                      John R. Gastineau
Schwarz Law Office, PC                                   Larry L. Barnard
Hudson, Indiana                                          Carson Boxberger LLP
                                                         Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Fiedler and                                    May 25, 2016
Dianne C. Fiedler,                                       Court of Appeals Case No.
Appellants-Respondents,                                  44A03-1512-MI-2316
                                                         Appeal from the LaGrange Circuit
        v.                                               Court
                                                         The Honorable Randy Coffey,
LaGrange County Regional                                 Special Judge
Utility District,                                        Trial Court Cause No.
Appellee-Petitioner                                      44C01-1308-MI-56




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016              Page 1 of 9
[1]   Robert and Dianne Fiedler appeal the trial court’s order denying their motion

      for relief from judgment pursuant to Trial Rule 60(B) on the complaint filed

      against them by the LaGrange County Regional Utility District (Utility

      District). Finding no error, we affirm.


                                                    Facts
[2]   In February 2008, the Utility District entered into an agreement to provide

      sewer services to the residences located around Shipshewana Lake. Some or all

      of the funding for the sewer project was provided by the United States

      Department of Agriculture (USDA). The Code of Federal Regulations requires

      that the Utility District, having accepted USDA funding, was obligated to

      comply with the Uniform Relocation Assistance and Real Property Acquisition

      Act (URA). 49 CFR 24.101(c)(1).


[3]   For the Utility District to provide sewer services to the affected residences, a

      grinder pump and other equipment had to be installed on each lot. The Utility

      District notified the affected homeowners that it would install all necessary

      equipment, at no cost to the homeowners, if the homeowners granted a

      voluntary easement to the Utility District for the installation and maintenance

      of the equipment. The Fiedlers owned a lot on Shipshewana Lake and declined

      to grant a voluntary easement to the Utility District. Rather than proceed with

      condemnation proceedings, as allegedly required by the URA, the Utility

      District merely stated that it would not install the equipment, that the Fiedlers

      would have to do so at their own cost, and that the Fiedlers were required to


      Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016   Page 2 of 9
      disconnect their private septic tank system by a certain date. At Utility District

      meetings held on July 11 and August 8, 2012, an attorney for the Utility District

      and a Board member told Robert Fiedler that the Utility District was not

      required to comply with the URA. Appellants’ App. p. 70-72. The Fiedlers did

      not comply with the directives issued by the Utility District.


[4]   On August 22, 2013, the Utility District filed a complaint against the Fiedlers,

      seeking an order to force the Fiedlers to connect to the District’s sewer line, to

      discontinue use of their own private septic system, and to pay the costs and

      attorney fees stemming from the litigation.1 The Utility District filed a motion

      for summary judgment on March 6, 2014, and the Fiedlers, pro se, filed a cross-

      motion for summary judgment on June 4, 2014.


[5]   The trial court held a hearing on the cross-summary judgment motions on

      October 15, 2014. On October 24, 2014, the Fiedlers—newly represented by

      counsel—filed a motion to amend their answer and to file counterclaims,

      alleging for the first time that the Utility District was required—and failed—to

      comply with the URA and acted fraudulently throughout its dealings with the

      Fiedlers. On November 19, 2014, the trial court entered partial summary

      judgment in favor of the Utility District, finding that the Fiedlers were required

      to connect to the sewer system and reserving the calculation of damages, to

      include attorney fees and hook-up fees, for a later proceeding. The Fiedlers



      1
       There were other named defendants in the Utility District’s complaint, but they are not participating in this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016                Page 3 of 9
      sought an interlocutory appeal of this order, but their appeal was eventually

      dismissed.


[6]   As the appellate proceedings were ongoing, counsel for the Fiedlers sought

      documentation pursuant to the Freedom of Information Act. Eventually, he

      received the documents he had been seeking, which confirmed that the Utility

      District was aware from the inception of the agreement with the USDA that it

      would be bound by the URA.


[7]   On October 22, 2015, the Fiedlers filed a motion for relief from judgment

      pursuant to Indiana Trial Rule 60(B), alleging that the fraudulent behavior of

      the Utility District and/or newly discovered evidence warranted a ruling in

      their favor. On November 25, 2015, the trial court summarily denied the

      motions. The Fiedlers now appeal.


                                   Discussion and Decision
[8]   The Fiedlers contend that the trial court erroneously denied their motion for

      relief from judgment. In this case, the Fiedlers argue that they are entitled to

      relief pursuant to Trial Rule 60(B), which provides, in pertinent part, as follows:

              On motion and upon such terms are just the court may relieve a
              party or his legal representative from a judgment, . . . for the
              following reasons:


                                                      ***


              (2)     any ground for a motion to correct error, including
                      without limitation newly discovered evidence, which by
      Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016   Page 4 of 9
                        due diligence could not have been discovered in time to
                        move for a motion to correct errors under Rule 59;


               (3)      fraud . . . , misrepresentation, or other misconduct of an
                        adverse party . . . .


      We review a motion for relief from judgment under Trial Rule 60 for an abuse

      of discretion. Elliott v. Dyck O’Neal, Inc., 46 N.E.3d 448, 456 (Ind. Ct. App.

      2015), trans. denied. We will reverse only if the trial court’s ruling is clearly

      against the logic and effect of the facts and circumstances before it as well as the

      reasonable and probable inferences to be drawn therefrom. Id.


[9]   The Fiedlers contend that, until they received documentation pursuant to their

      Freedom of Information Act request, they were unaware and/or unable to

      prove that the Utility District was required to comply with the URA. 2 We

      disagree. The USDA’s website contains a wealth of readily accessible

      information. Among other things, there is a “Water and Waste Processing

      Checklist” setting forth the documentation that an applicant must provide to

      receive USDA funding. Water and Waste Processing Checklist, RUS Bulletin

      1780-6, http://www.rd.usda.gov/files/UWP-rb-06.pdf. That Checklist

      references, in relevant part, the requirement that the applicant provide evidence

      of “Right-of-Way and Easement,” “Evidence of Title to Assets,” and “Opinion




      2
        There is no dispute that at all times, the Fiedlers have known that the sewer project was fully or partially
      funded by the USDA. Indeed, at a Utility District meeting, Robert Fiedler made abundantly clear that he
      understood the role of the federal financing when he sharply questioned the Utility District attorney about
      compliance with the URA.

      Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016                   Page 5 of 9
of Counsel Relative to Rights-of-Way.” Id. at p. 8. Each of these documents,

in turn, references a citation to the Code of Federal Regulations. 7 CFR

1780.44. A relevant section of the Code of Federal Regulations reads as

follows:


        (g)     Acquisition of land, easements, water rights, and existing
                facilities. Applicants are responsible for acquisition of all
                property rights necessary for the project and will determine
                that prices paid are reasonable and fair. RUS may require
                an appraisal by an independent appraiser or Agency
                employee.


                (1)      Rights-of-way and easements. Applicants will
                         obtain valid, continuous and adequate rights-of-way
                         and easements needed for the construction,
                         operation, and maintenance of the facility.


                         (i)     The applicant must provide a legal opinion
                                 relative to the title to rights-of-way and
                                 easements. Form RD 442-22, “Opinion of
                                 Counsel Relative to Rights-of-Way,” may be
                                 used. When a site is for major structures
                                 such as a reservoir or pumping station and
                                 the applicant is able to obtain only a right-of-
                                 way or easement on such a site rather than a
                                 fee simple title, the applicant will furnish a
                                 title report thereon by the applicant’s attorney
                                 showing ownership of the land and all
                                 mortgages or other lien defects, restrictions,
                                 or encumbrances, if any.


                         (ii)    For user connections funded by RUS,
                                 applicants will obtain adequate rights to
                                 construct and maintain the connection line or
Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016   Page 6 of 9
                                          other facilities located on the user’s property.
                                          This right may be obtained through formal
                                          easement or user agreements.


[10]   7 CFR 1780.44(g). In addition to these specific rules by which the applicant

       must abide, the URA itself is explicitly applicable to projects receiving federal

       financial assistance that require the acquisition of permanent and/or temporary

       easements. 49 CFR 24.101(c)(1).3 As to what the URA itself does and does not

       require, that analysis can be made based upon the text of the law and

       regulations.


[11]   We now turn to the specific claims raised by the Fiedlers. First, under Rule

       60(B)(2), the Fiedlers argue that they are entitled to relief because of the newly-

       discovered evidence they received as a result of their Freedom of Information

       Act request. We acknowledge that they did not receive the documentation until

       after the conclusion of the litigation. But they could have requested this

       documentation long before they actually did.4 Moreover, the “evidence” to

       which they direct our attention is not evidence at all. At the heart of their claim

       is the applicability of the URA to the Utility District; this is an issue of law that

       could have been answered without the documents on which they rely. We do

       not find that they are entitled to relief on this basis.




       3
           The URA is adopted by the Rural Development branch of the USDA at 7 CFR Part 21.
       4
        We note that much or all of this documentation could have been procured during the discovery process,
       had the Fiedlers requested it.

       Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016            Page 7 of 9
[12]   Second, under Rule 60(B)(3), they contend that they are entitled to relief

       because of the Utility District’s alleged fraud or misrepresentation. Specifically,

       they direct our attention to statements made by the Utility District’s attorney at

       public meetings—the attorney stated that the Utility District was not required to

       comply with the URA. They also point to statements made by the attorney

       during a hearing before the trial court. To establish fraud under this rule, a

       party must show (1) a material misrepresentation of past or existing fact; (2)

       that was untrue; (3) that was made with knowledge of or in reckless ignorance

       of its falsity; (4) that was made with the intent to deceive; (5) that was rightly

       relied upon by the complaining party; and (6) that proximately caused the

       injury or damage complained of. Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30

       (Ind. Ct. App. 2005). In this case, any alleged misrepresentation was one of

       law, not of fact. And as stated above, the text of the relevant laws and

       regulations are, and always have been, publicly available. Therefore, the

       Fiedlers cannot be said to have reasonably relied on these statements.5 We find

       no error in the trial court’s denial of the motion for relief from judgment

       pursuant to Trial Rule 60(B).


[13]   Finally, the Fiedlers argue that the trial court abused its discretion by failing to

       have a hearing on their motion for relief from judgment. Trial Rule 60(D)




       5
         We acknowledge that through much of these proceedings, the Fiedlers were not represented by counsel.
       We sympathize with their statement that they relied on an interpretation of law made by an attorney. But it
       is well established that pro se litigants are held to the same standards as practicing attorneys. Akiwumi v.
       Akiwumi, 23 N.E.3d 734, 740 (Ind. Ct. App. 2014). Therefore, this argument is unavailing.

       Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016               Page 8 of 9
       states that “the court shall hear any pertinent evidence[.]” It is well established

       that “where there is no ‘pertinent evidence,’ a hearing is unnecessary.”

       Benjamin v. Benjamin, 798 N.E.2d 881, 889 (Ind. Ct. App. 2003). In this case, as

       noted above, the primary issue is one of law. There was no “pertinent

       evidence” that would have assisted the trial court in ruling on an issue of law.

       Therefore, we find no error in this regard.


[14]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 44A03-1512-MI-2316 | May 25, 2016   Page 9 of 9
