Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Matthew E. Koch

Bunker Hill, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew E. Koch,

Appellant-Petitioner,

v.

The Vanderburgh County 

Treasurer,

Appellee-Respondent

April 5, 2018

Court of Appeals Case No.

17A-MI-3018

Appeal from the Vanderburgh 

Superior Court

The Honorable Leslie C. Shively, 

Judge

Trial Court Cause No.

82D01-1702-MI-608

Altice, Judge.

Case Summary

[1] Matthew E. Koch, pro se, filed a petition against the Vanderburgh County 

Treasurer (the Treasurer) to compel access to public records. The parties filed 
Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018 Page 2 of 6

cross motions for summary judgment, and the trial court granted summary 

judgment in favor of the Treasurer.

[2] We affirm.

Facts & Procedural History

[3] Koch is serving a thirty-year prison sentence for committing robbery, 

kidnapping, and battery in 2008. His grandfather Norman W. Koch (Norman) 

passed away in 2005, and Koch expected to eventually inherit through a trust 

that would vest at the passing of Koch’s grandmother Pauline A. Koch 

(Pauline). In March 2015, Koch learned that Pauline had died nearly five years 

earlier. Koch then immediately began investigating the disposition of his 

expected inheritance. He sought documents from, among others, the 

Vanderburgh County Clerk, the Vanderburgh County Recorder, the 

Vanderburgh County Assessor, and Old National Bank. Koch was unable to 

discover any valid trust instrument under which he was a beneficiary, and his 

aunt expressly wrote to him that his grandparents’ estates were handled by will 

and that no trust was left for him. Yet Koch continued to believe that members 

of his family were concealing and withholding a trust account from him.

[4] On December 27, 2016, from the Miami Correctional Facility, Koch mailed an

access to public records request to the Treasurer, seeking copies of any and all 

inheritance tax records relating to Norman that the Treasurer possessed. In his 

request, Koch noted that he was Norman’s biological grandson and that he 

believed himself to be a defrauded beneficiary.
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[5] Candance Nance, a First Deputy Treasurer, received the records request on 

January 3, 2017, and responded by letter the following day with a denial of the 

request. In this letter to Koch, Nance first set out the law related to disclosure 

of inheritance tax information. She explained that Ind. Code § 6-4.1-12-12 

forbade the disclosure of any information related to inheritance tax files except 

in limited instances set out in the statute. Nance noted two of the statutory 

exceptions in which disclosure is allowed – (1) to the attorney listed on the 

inheritance tax return and (2) to a devisee, an heir, a successor in interest, or a 

surviving joint tenant of the decedent for whom an inheritance tax return was 

filed or upon the receipt of a written request, to an agent or attorney of a 

devisee, an heir, a successor in interest, or a surviving joint tenant of the 

decedent. See I.C. § 6-4.1-12-12(a)(10), (11). After setting out the law, Nance 

stated in the letter:

I have spoken with the Department of Inheritance and the Public 

Access Counselor, both advised me to quote you the law. Based 

on this information I cannot send you any record we maintain. 

The Department of Inheritance has also informed me that you 

have been in contact with them for the same information. I am 

to let all correspondence go through them.

Appendix at 16.

[6] On January 20, 2017, Koch filed in the Vanderburgh Superior Court a petition 

to compel access to public records. In its answer, the Treasurer asserted a 

number of affirmative defenses, including that pursuant to I.C. § 6-4.1-12-12 the 
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requested records are confidential and may not be produced to Koch. The 

parties eventually filed cross motions for summary judgment. 

[7] Included within the Treasurer’s designated evidence was Nance’s affidavit, 

dated July 10, 2017. In her affidavit, Nance reiterated that the records 

requested by Koch are confidential and may not be produced to him. 

Moreover, in paragraph 6, Nance averred that the Treasurer’s Office does not 

have any documents in its possession relative to Norman’s estate.

[8] On August 8, 2017, the trial court held a telephonic hearing regarding the 

summary judgment motions. Koch has not provided us with a transcript, but 

the CCS reveals that at the conclusion of the hearing, the trial court granted the 

Treasurer ten days to amend its answer. The Treasurer filed an amended 

answer two days later, adding “Mistake” to the list of affirmative defenses. 

Appendix at 25. Koch responded with a motion to strike “materials concerning 

the affirmative defense of mistake from the record.” Id. at 27. Koch argued 

that the affirmative defense was not pled with the specificity as required by 

Indiana Trial Rule 9(B)1 and, therefore, should be stricken. He also challenged 

Nance’s affidavit to the extent that it indicated that none of the requested 

documents were in the possession of the Treasurer’s Office.

 

1 T.R. 9(B) provides in relevant part: “In all averments of fraud or mistake, the circumstances constituting 

fraud and mistake shall be specifically averred.”
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[9] The trial court held a telephonic hearing on October 26, 2017, for which we 

have not been provided with a transcript. On November 20, 2017, the trial 

court issued an order denying Koch’s motion to strike and taking the summary 

judgment motions under advisement. Thereafter, on November 28, 2017, the 

trial court issued an order summarily granting summary judgment in favor of 

the Treasurer. 

Discussion & Decision

[10] We begin by observing that the Treasurer has not filed an appellee’s brief. As a 

result, we will not undertake the burden of developing arguments on the 

Treasurer’s behalf and will reverse if Koch establishes prima facie error. See

Duty v. CIT Group/Consumer Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017).

Prima facie, in this context, means at first sight, on first appearance, or on the 

face of it. Id. This standard, however, “does not relieve us of our obligation to 

correctly apply the law to the facts in the record in order to determine whether 

reversal is required.” Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015).

[11] On appeal, Koch argues that the trial court erred by denying his motion to 

strike the newly added affirmative defense of mistake.

2

 Further, he argues that 

 

2 Koch also baldly asserts that paragraph 6 of Nance’s affidavit must be stricken, but he provides no cogent 

argument in this regard. Indiana Trial Rule 56(E) provides in part: “Supporting and opposing affidavits shall 

be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters stated therein.” Paragraph 6 of the affidavit 

is clearly based on Nance’s personal knowledge and addresses a matter with which she is competent to 

testify. Moreover, the fact to which Nance avers – that the Treasurer’s Office does not possess the requested 

documents – is relevant and admissible evidence.
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even if not stricken, Nance’s original letter and her subsequent affidavit 

contradict each other and present a genuine issue of material fact regarding 

whether the Treasurer has possession of the requested documents. 

[12] Whether the Treasurer properly amended the complaint to allege the defense of 

mistake is of no moment here. The designated evidence plainly establishes that 

the Treasurer does not possesses the documents sought by Koch. Indeed, 

Nance averred, “the Vanderburgh County Treasurer’s Office does not have any 

documents in their possession relative to the Estate of Norman Koch.” 

Appendix at 15. Contrary to Koch’s assertion on appeal, the letter that Nance 

originally sent to him did not indicate that the Treasurer actually possessed the 

requested records. Rather, the letter simply advised Koch – a prolific filer in the 

county – of the general law regarding the confidentiality and disclosure of 

inheritance tax documents. Based on this law, Nance indicated that she could 

not send Koch “any record we maintain.” Id. at 16. 

[13] Because it is axiomatic that the Treasurer cannot produce records that it does 

not possess, the trial court properly granted summary judgment in favor of the 

Treasurer. See, e.g., Quirk v. Delaware County, 91 N.E.3d 1008, 1013 (Ind. Ct. 

App. 2018) (summary judgment is appropriate where the designated evidence 

shows there is no genuine issue of material fact and the moving party is entitled 

to judgment as a matter of law).

[14] Judgment affirmed.

[15] Najam, J. and Robb, J., concur.