                                                                                 FILED
                                                                             Nov 08 2018, 7:30 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David W. Stone IV                                         Ann M. Trzynka
      Stone Law Office & Legal Research                         Andrew P. Simmons
      Anderson, Indiana                                         Van Gilder & Trzynka, P.C.
                                                                Fort Wayne, Indiana
      Loren K. Allison
      Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Stephan M. Poiry,                                         November 8, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-MI-1066
              v.                                                Appeal from the
                                                                Allen Superior Court
      City of New Haven, Indiana,                               The Honorable
      Appellee-Defendant.                                       Craig J. Bobay, Judge
                                                                Trial Court Cause No.
                                                                02D02-1711-MI-1046



      Kirsch, Judge.


[1]   Stephan M. Poiry (“Poiry”) appeals the trial court’s order granting summary

      judgment in favor of the City of New Haven, Indiana (“the City”) and the

      denial of his motion to correct error. Poiry raises the following issue for our

      review: whether the trial court erred when it granted summary judgment to the

      City and denied his motion to correct error because Poiry failed to file a bond
      Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018                           Page 1 of 9
      simultaneously with his verified petition for judicial review of the City of New

      Haven Police Department’s Merit Board decision.


[2]   We reverse and remand with instructions.


                                  Facts and Procedural History
[3]   Poiry was and currently is a police officer employed with the City of New

      Haven Police Department. On August 7, 2017, the Chief of Police for the City

      filed disciplinary charges against Poiry. Appellant’s App. Vol. II at 35-36. On

      September 26, 2017, the New Haven Police Department Merit Board (“the

      Board”) conducted a hearing on the disciplinary charges. The parties attended

      the hearing with their attorneys, testimony was heard, and exhibits introduced.

      On September 28, 2017, the Board issued its ruling, in which it found that the

      disciplinary charges had been proven and that Poiry should be demoted in rank.

      Id. at 44-46. Poiry filed an appeal with the Board on September 28, 2017,

      which the Board denied on October 27, 2017. Id. at 55.


[4]   On November 16, 2017, Poiry filed a complaint against the City seeking judicial

      review of the Board’s decision. Poiry did not post a bond at the time he filed

      his complaint. Poiry knew that the statute for appeals from municipal merit

      boards applied and was “fully aware that a bond was required as part of [the]

      filing for this judicial review.” Id. at. 110, 145. At the time that the complaint

      was filed, Poiry inquired with employees of the Allen County Clerk’s Office

      (“Clerk’s Office”) about posting a bond and was told that the Clerk’s Office

      would not accept a bond without a judge setting the amount. Id. at 110, 146.

      Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018       Page 2 of 9
[5]   After Poiry filed his complaint, he did not file anything with the trial court to

      attempt to set a bond amount. On January 11, 2018, Poiry filed a motion for

      summary judgment against the City, alleging that the City failed to file a

      transcript pursuant to Indiana Code section 36-8-3.5-18(b)(5). On January 29,

      2018, the City filed a motion to dismiss based on Poiry’s failure to post a bond

      pursuant to Indiana Code section 36-8-3.5-18(b)(4). A case management

      conference was held on the same day, and after the conference, Poiry went to

      the Clerk’s Office, where he spoke to a deputy clerk about posting a bond and

      was told the court had to determine the bond amount. Id. at 115. The deputy

      clerk then allowed Poiry to post whatever amount Poiry “wished,” and Poiry

      paid the sum of $100. Id. at 116-17.


[6]   On March 8, 2018, the trial court heard oral arguments on both motions filed

      by the parties. Because matters outside the pleadings were presented in the

      City’s motion to dismiss, the trial court treated the motion as a motion for

      summary judgment. Id. at 11. On April 5, 2018, the trial court issued its order

      granting summary judgment in favor of the City. Id. at 8-16. Poiry filed a

      motion to correct error on April 20, 2018. The trial court denied Poiry’s

      motion on May 23, 2018. Poiry now appeals.


                                      Discussion and Decision
[7]   Poiry is appealing after a denial of a motion to correct error. Generally, a trial

      court’s ruling on a motion to correct error is reviewed for an abuse of discretion.

      Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App. 2017).


      Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018       Page 3 of 9
      An abuse of discretion occurs when the trial court’s decision is against the logic

      and effect of the facts and circumstances before the court or if the court has

      misinterpreted the law. Id. However, where the issues raised in the motion are

      questions of law, the standard of review is de novo. City of Indianapolis v. Hicks,

      932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. Here, Poiry’s motion to

      correct error raised questions regarding the trial court’s interpretation of a

      statute. Because the interpretation of a statute presents questions of law, our

      standard of review is de novo. Watson, 70 N.E.3d at 384.


[8]   Poiry’s motion to correct error alleged that the trial court had erred when it

      granted summary judgment in favor of the City. When reviewing the grant of

      summary judgment, our standard of review is the same as that of the trial court.

      Webb v. City of Carmel, 101 N.E.3d 850, 860 (Ind. Ct. App. 2018) (citing FLM,

      LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012), trans.

      denied). We stand in the shoes of the trial court and apply a de novo standard of

      review. Id. Our review of a summary judgment motion is limited to those

      materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E.

      Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary

      judgment is appropriate only where the designated evidence shows there are no

      genuine issues of material fact and the moving party is entitled to judgment as a

      matter of law. T.R. 56(C). We view the pleadings and designated materials in

      the light most favorable to the non-moving party. Webb, 101 N.E.3d at 860.

      Additionally, all facts and reasonable inferences from those facts are construed

      in favor of the non-moving party. Id. (citing FLM, 973 N.E.2d at 1173). The

      Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018        Page 4 of 9
       initial burden is on the moving party to demonstrate the absence of any genuine

       issue of fact as to a determinative issue, at which point the burden shifts to the

       non-movant to come forward with contrary evidence showing an issue for the

       trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[9]    A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. We will affirm upon any theory or basis supported by the designated

       materials. Id. When a trial court grants summary judgment, we carefully

       scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.


[10]   Where, as here, the interpretation of a statute is at issue, such statutory

       interpretation presents a pure question of law for which summary judgment

       disposition is particularly appropriate. Miller v. Town Bd. of Sellersburg, 88

       N.E.3d 217, 218 (Ind. Ct. App. 2017) (citing Pike Tp. Educ. Found., Inc. v.

       Rubenstein, 831 N.E.2d 1239, 1241 (Ind. Ct. App. 2005)). The first step in

       interpreting a statute is to determine whether the legislature has spoken clearly

       and unambiguously on the point in question. Id. (citing Rheem Mfg. Co. v. Phelps

       Heating & Air Conditioning Inc., 746 N.E.2d 941, 947 (Ind. 2001)). When a

       statute is clear and unambiguous, we need not apply any rules of construction

       other than to require that the words and phrases be taken in their plain,



       Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018          Page 5 of 9
       ordinary, and usual sense. Id. at 219 (citing Sees v. Bank One, Ind., N.A., 839

       N.E.2d 154, 157 (Ind. 2005)).


[11]   Poiry argues that the trial court erred in granting summary judgment in favor of

       the City and in denying his motion to correct error. He asserts that Indiana

       Code section 36-8-3.5-18(b)(4) is ambiguous in that it requires that a bond be

       filed but does not state in what amount the bond should be and how the

       required bond is to be determined. Because of this ambiguity, Poiry contends

       that he was not aware of the amount he should pay to satisfy the bond

       requirement when he filed his appeal of the commission’s decision.


[12]   In the present case, Poiry filed an appeal with the trial court after he had been

       disciplined by the Board. When he filed his appeal, he was not aware of the

       required bond amount, so he did not file a bond simultaneously with his appeal.

       At the time that summary judgment was entered by the trial court, a bond

       amount had still not been determined.


[13]   When a member of a municipality’s police or fire department is aggrieved by a

       decision of the commission to suspend the member for more than ten days,

       demote the member, or dismiss the member, he or she may appeal the decision

       to the circuit or superior court of the county where the municipality is located.

       Ind. Code § 36-8-3.5-18(a). When the plaintiff files his complaint, a bond must

       be filed, and Indiana Code section 36-8-3.5-18 states in pertinent part:


               (b) The appeal shall be made according to the Indiana rules of
               trial procedure with the following exceptions:


       Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018       Page 6 of 9
               ....


               (4) The plaintiff must file a bond at the time of filing the
               complaint conditioned on the plaintiff prosecuting the appeal to a
               final determination and paying the court costs incurred in the
               appeal.


       Ind. Code § 36-8-3.5-18(b)(4). While subsection (b)(4) is clear that a bond must

       be filed when an appeal is filed, the statute is not clear or unambiguous in

       directing how that bond is to be determined and in what amount it is to be paid.


[14]   Under Indiana Code section 34-49-1-1, which controls the fixing of bonds by

       judges, it states that the statutory section applies whenever “any bond . . . is

       required in connection with any civil action or proceeding brought in any court

       in Indiana” and “in the absence of any provision of law specifying the amount

       of the bond.” Ind. Code § 34-49-1-1(a). When these conditions apply, the

       statute provides that “the judge of the court shall fix the penalty is an amount

       that the judge considers adequate, but not less than $100.” Ind. Code § 34-49-1-

       1(b) (emphasis added). Here, a bond was required, pursuant to Indiana Code

       section 36-8-3.5-18, in connection with Poiry’s appeal to the trial court, which

       was a civil action brought in an Indiana court, and as discussed above, Indiana

       Code section 36-8-3.5-18 does not contain a provision specifying the amount of

       bond to be filed. Therefore, in accordance with Indiana Code section 34-49-1-

       1(b), the judge of the trial court in which Poiry filed his appeal shall fix the bond

       in an amount the judge considers adequate, but not less than $100.




       Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018        Page 7 of 9
[15]   Here, the trial judge never fixed a bond amount. Because the trial court failed

       to fix a bond amount, Poiry was unable to pay the bond required under Indiana

       Code section 36-8-3.5-18 for his appeal of the Board’s decision. Based on this,

       we conclude that the trial court erred when it granted summary judgment in

       favor of the City and when it denied Poiry’s motion to correct error. We,

       therefore, reverse the trial court and remand with instructions for the trial court

       to set a bond amount it considers adequate and a time frame within which the

       bond must be posted. If Poiry does not post the bond within the time frame,

       the trial court may enter an order dismissing the appeal. If the bond is properly

       paid in the amount set by the trial court and within the time frame, the case is

       to continue on the merits.


[16]   Ind. Code 29-1-7-19, relating to the filing of will contests, includes language

       similar to the bond statute in this case. It provides that “[a]t the time of filing”

       a will contest, “the plaintiff in the action, or some other person on the plaintiff's

       behalf, shall file a bond with sufficient sureties in an amount approved by the

       court, conditioned for the due prosecution of the proceedings and for the

       payment of all costs if in the proceedings judgment is rendered against the

       plaintiff.” This statute requires the filing of the bond at the time the will contest

       is filed, but it does not provide a mechanism for determining the amount of the

       bond that shall be filed. Instead, it requires that the amount of the bond be

       approved by the court.


[17]   Interpreting the statute, in Harper v. Boyce, 809 N.E.2d 344, 348 (Ind. Ct. App.

       2004), this court explained that the filing of a bond is not a condition precedent

       Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018         Page 8 of 9
       to the filing of a will-contest complaint, but the plaintiff must file a bond “before

       being permitted to proceed with the contest.” In that case, the will contest was

       filed without a bond, and the estate filed a motion to set a bond of $2,500. The

       trial court granted the motion, but the will contestant failed to file the bond.

       The trial court dismissed the will contest, and this court affirmed.


[18]   As did the court in Harper, we hold that the filing of a bond is not a “condition

       precedent” to filing of an appeal of a police disciplinary action and that failing

       to file a bond at the time of filing the appeal cannot be the basis for dismissal.

       Dismissal, however, would be appropriate if the plaintiff fails to file a bond after

       the amount is set by the trial court.


[19]   Reversed and remanded with instructions.


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




       Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018        Page 9 of 9
