FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:

DALE W. ARNETT CARRIE HAWK GUTMAN

Winchester, Indiana Hawk Haynie Kammeyer & 

 Chickedantz, LLP

Fort Wayne, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBERT GRABER, JR. and )

BARBARA GRABER, )

)

Appellants, )

)

vs. ) No. 02A05-1209-MI-485

)

ALLEN COUNTY, INDIANA )

BUILDING DEPARTMENT, )

)

Appellee. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Nancy Eshcoff Boyer, Judge

Cause No. 02D01-1206-MI-17565

May 8, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
2

Robert Graber, Jr. and Barbara Graber appeal the trial court’s dismissal of their 

verified complaint for review in favor of the Allen County, Indiana, Building Department 

(the “Building Department”). The Grabers raise one issue, which we revise and restate as

whether the court erred in granting the Building Department’s motion to dismiss. We 

reverse and remand.

PROCEDURAL HISTORY 

On April 24, 2012, the Building Commissioner (the “Commissioner”) of the 

Building Department issued to the Grabers an Order to Bring into Compliance or 

Demolish. The order provided that inspection of the building(s) identified on the 

property with a street address of “14903 Notestine Road” in Grabill, Indiana, was unsafe 

and required compliance with local ordinance and state code and ordered the Grabers to 

have the building brought into compliance by May 18, 2012. Appellant’s Appendix at 

56. The order notified the Grabers that a hearing would be held on May 22, 2012 and

was recorded in the office of the Allen County Recorder on April 27, 2012. 

On May 22, 2012, an administrative hearing was held before Hearing Officer

Anthony Burrus. Burrus issued a Record of Hearing and Findings of the Hearing Officer,

signed May 24, 2012, affirming the order of the Commissioner. 

On June 4, 2012, the Grabers filed a Verified Complaint for Review with the trial 

court. The complaint alleged that on May 24, 2012, the Building Department issued an 

order which affirmed a previous order made on April 24, 2012, and which found that a 

building on the Grabers’ property is a health hazard and public nuisance. The complaint 

stated that it attached, as Exhibit A, the Record of Hearing and Finding of Hearing 
3

Officer. The complaint requested the court to find in the Grabers’ favor and against the 

Building Department. 

The document attached to the June 4, 2012 complaint as Exhibit A was entitled 

Record of Hearing and Findings of Hearing Officer and related to an action taken after a 

hearing on May 22, 2012, before Hearing Officer Anthony Burrus regarding an affected 

parcel of real estate with a street address of “14909 Notestine Rd” in Grabill, Indiana, in 

which Marvin and Ada Schmucker were named as having a substantial property interest. 

Id. at 15. The findings of fact indicated that the building(s), structure(s), and/or tract of 

real property was a hazard to public health and a public nuisance, and the findings 

included the comment: “Owner states they are exempt from local ordinance and 

regulations however courts have ruled differently, and therefore, Allen County local 

ordinance(s) and or regulations are enforceable. Therefore, owner must comply with the 

County’s orders of inspections and permits by June 01, 2012.” Id. at 16. 

On July 9, 2012, the Grabers filed a Motion for Leave to File an Amended 

Verified Complaint for Review together with an Amended Verified Complaint for 

Review. In their motion, the Grabers indicated that the Commissioner’s order issued on 

April 24, 2012 had been affirmed on May 24, 2012, by Hearing Officer Anthony Burrus, 

that “[o]n the same date [their] counsel represented Marvin and Ada Schmucker before 

the same hearing officer,” and that “[i]nadvertently, [the Grabers’] Counsel attached the 

record of hearing and findings of Hearing Officer for the Schmucker case as Exhibit A to 

the Verified Complaint for Review. However all of the findings of fact in both cases 

were exactly the same.” Id. at 32. The Grabers’ motion stated that Ind. Code § 36-7-9-8 
4

requires the findings of fact and action taken by the hearing authority to be included in 

the complaint and that they “have substantially complied with the spirit of the 

requirements for judicial review in that their petition was timely filed and there was 

sufficient information for the Building Department to investigate the claim.” Id. The 

Grabers requested leave to file their Amended Verified Complaint for Review with the 

correct Exhibit A in order to comply with the letter of the law pursuant to Ind. Code § 36-

7-9-8. The Grabers also noted that the case management conference in the cause was not 

scheduled until August 20, 2012, and the Building Department would not be prejudiced 

in any manner if they were allowed to amend their complaint. 

The document attached to the July 9, 2012 Amended Verified Complaint for 

Review as Exhibit A was entitled Record of Hearing and Findings of Hearing Officer and 

related to the action taken after a hearing on May 22, 2012, before Hearing Officer 

Anthony Burrus. The hearing concerned an affected parcel of real estate with a street 

address of “14903 Notestine Rd” in Grabill, Indiana, in which the Grabers were named as 

having a substantial property interest. Id. at 29. The findings of fact indicated, identical 

to those findings related to the Schmucker property, that the building(s), structure(s), 

and/or tract of real property was a hazard to public health and a public nuisance, and 

included the comment: “Owner states they are exempt from local ordinance and 

regulations however courts have ruled differently, and therefore, Allen County local 

ordinance(s) and or regulations are enforceable. Therefore, owner must comply with the 

County’s orders of inspections and permits by June 01, 2012.” Id. at 30. 
5

On July 13, 2012, the Building Department filed a motion to dismiss the Grabers’ 

complaint under Trial Rule 12(B)(6) and, in the alternative, for summary judgment and a 

memorandum in support of the motion. In the memorandum, the Building Department 

stated that the Grabers failed to obtain any permits prior to the construction of a structure 

which they have identified as a meeting place for their church community which will 

include plumbing. An affidavit of the Commissioner attached to the memorandum stated 

that the Grabers have “placed a structure on their real estate . . . which is attached to 

[their] home by a breeze-way,” that Robert Graber “stated at the administrative hearing 

that this structure has plumbing and that the intended use is for gatherings of public, 

specifically the Amish community for holding church and other church functions,” that 

the Grabers “have failed to obtain the requisite Septic System Permits, Land Use Permits 

and Building Permits . . . for the construction of the structure . . . ,” and that the failure to 

obtain permits is a violation of the Allen County Code. Id. at 47-48. The Building 

Department, in its memorandum, argued that the Grabers failed to properly file a request 

for judicial review pursuant to Ind. Code § 36-7-9-8(b), namely, the portion of the 

provision which provides that “[a] person requesting judicial review under this section 

must file a verified complaint including the findings of fact and the action taken by the 

hearing authority.” The Building Department argued that the Grabers’ verified complaint 

for review “attached a decision for another property and another owner,” that the 

complaint fails to conform to Ind. Code § 36-7-9-8(b), that “the failure to timely file the 

requisite verified complaint along with the findings [of] fact and the action taken by the 

hearing authority, deprives this Court of jurisdiction for a de novo review of the facts,” 
6

and that the Grabers’ complaint should therefore be dismissed. Id. at 41. The Building 

Department also argued that the Grabers’ complaint fails to assert facts which support 

their request to reverse the decision of the hearing officer. 

On July 23, 2012, the court entered an order granting the Grabers’ July 9, 2012 

Motion for Leave of Court to File an Amended Verified Complaint for Review. 

On August 14, 2012, the Grabers filed a document entitled “Facts in Dispute” 

which stated that the following pertinent facts are genuinely in dispute: “Whether or not 

the barn is a private barn for the Grabers[’] exclusive use as stated in Robert Graber’s 

affidavit or [if] it is a ‘public church’ as the Building Department attempts to assert.” Id.

at 78. 

Also on August 14, 2012, the Grabers filed a response to the Building 

Department’s motion to dismiss and/or for summary judgment on their verified complaint

and their designation of evidence. In the response, the Grabers argued that, although the 

findings of fact attached to their initial complaint were those of the neighboring property 

of Marvin and Ada Schmucker, after discovering this error they filed a motion for leave 

to file an amended complaint which the court granted, that courts favor having cases 

decided on their merits rather than on technicalities, that in this instance the findings and 

orders of the hearing officer were precisely the same in the Schmucker case as in the 

Graber case, that there could be no prejudice to the Building Department if they had the 

same findings and order, and that the error was merely a clerical error and was remedied. 

The Grabers also asserted that Ind. Code § 36-7-8-3(d),1the “Log Cabin Rule,” applies in 

 

1

Ind. Code § 36-7-8-3(d) provides: “An ordinance adopted under this section does not apply to 

private homes that are built by individuals and used for their own occupancy.” 
7

this case and that no permits were required, that the Building Department “is trying to 

twist the facts elicited at the administrative hearing by claiming the barn is ‘to be used for 

public church meetings’ and does not fall within the I.C. 36-7-8-3(d) exception,” that 

“[t]he building is at the Graber homestead and will only be used for ‘church’ about once a 

year, just as will the ‘homes’ of other families in the Church District of the Grabers,” that 

the building “in fact is a company shed and safely built,” and that “[t]here is no evidence 

that the building is in any way a hazard to public health and in fact the building is a safe 

building.” Id. at 80-82. The Grabers requested the court to deny the Building 

Department’s motion to dismiss and to grant summary judgment in their favor. The 

Grabers’ designated evidence included an affidavit of Robert Graber and a letter 

regarding an inspection of the building by an engineer noting that the structure is 

sufficient to resist the intended “live, dead, snow, and wind loads.” Id. at 87.

On August 27, 2012, the court held a hearing on the Grabers’ motion at which the 

parties presented arguments. At the start of the hearing, the trial court made the 

following comments: 

Allen County Indiana Building Department has filed its Motion to Dismiss 

the Verified Complaint filed in this action for judicial review asserting that, 

under the statute, a person must file a Verified Complaint including the 

findings of fact and the action taken by the hearing authority within ten 

days after the date when the action was taken. [The Grabers] admit that in 

filing their Verified Complaint to review the findings of fact and action 

taken by the hearing officer were those of the neighboring property of 

Marvin and Ada Schmucker. And what I have to do is follow what the law 

is, and the state statutes that govern a verified petition for review are 

specific. The Courts have no discretion in whether they are to grant leeway 

or somehow vary the time limits required or the content of what must be 

filed. So it’s my opinion that I’m bound by those statutes and that I must 

dismiss this case, even though it was an honest error. 
8

Transcript at 4. 

Counsel for the Grabers presented argument consistent with the arguments in the 

their pleadings and filings, including that courts favor deciding cases on their merits, that 

the findings and action taken were exactly the same in the Schmucker and Graber cases, 

that both cases were heard on the same day by the same hearing officer, that the error was 

a clerical error in the office of the Grabers’ counsel, and that the error was remedied 

before the Building Department filed its motion to dismiss. Counsel for the Grabers 

further argued that the court granted its motion for leave to file an amended complaint 

and that there is no way the Building Department could be prejudiced by having the 

neighbor’s findings and results attached to the Grabers’ petition because they were 

exactly the same and the Building Department knew that they were exactly the same. 

The court stated that it did not believe it had any discretion in the matter and 

intended to grant the motion to dismiss. The court also stated that “[n]ow that leaves [the 

Grabers] with the choice of doing nothing, which means the building will be torn down, 

or seeking a building permit or whatever other kind of permit is required,” that “[t]his 

isn’t going to be decided on the merits,” that “even if you proceed to appeal the case, 

there’s no way I’m going to be enjoining the Building Department from proceeding 

because, again, this isn’t on the merits,” and that “[i]t’s on whether or not the statutes 

were complied with in filing for a verified petition for judicial review.” Id. at 6. The 

court entered an order granting the Building Department’s motion to dismiss. 
9

ISSUE

The issue is whether the trial court erred in granting the Building Department’s 

motion to dismiss the Grabers’ complaint for judicial review. The standard of appellate 

review of rulings on motions to dismiss on the grounds presented here “depends on 

whether the trial court resolved disputed facts, and if so, whether the trial court conducted 

an evidentiary hearing or ruled on a paper record.” Wayne Cnty. Prop. Tax Assessment 

Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 

(Ind. 2006). We review de novo a ruling on such a motion to dismiss if the facts are not 

disputed or the court rules on a paper record. Id. 

DISCUSSION

The Grabers contend that the court erred in dismissing their complaint as the 

original error was a clerical error, the original complaint was filed timely, and the 

Building Department could not have been prejudiced. The Grabers argue that Ind. Trial 

Rule 15 allows amendment to a pleading once as a matter of course any time before a 

responsive pleading is served and that is exactly what they did upon the discovery of the 

clerical error. The Grabers argue that the Building Department could not have been 

prejudiced as the same Hearing Officer wrote the identical orders for the Schmuckers and 

the Grabers, that the findings and action actually are included with the complaint as they 

are identical and the caption and body of the original complaint refer to the Grabers so 

there is no confusion as to who is seeking judicial review, and that courts favor deciding 

cases on their merits rather than mere technicalities. The Grabers also assert that the 
10

Indiana Supreme Court has stated that clerical errors may be amended if done so 

promptly. 

The Building Department maintains that the trial court has no authority to extend

the time to file a verified petition for review under Ind. Code § 36-7-9-8(b) and that the 

court did not obtain jurisdiction. The Building Department also argues that the statute 

specifically required the Grabers to file a complaint which included the findings of fact 

and the action taken within ten days, that the statutory language is clear and 

unambiguous, and that the Grabers failed to comply with the prerequisite for a review 

under the statute. The Building Department notes that on or about July 9, 2012, forty-six 

days after findings of fact and the action were issued, the Grabers attempted to remedy 

the error by filing a motion for leave to file an amended complaint, that the Grabers 

argued that its pleadings had substantially complied with the spirit of the requirement for 

judicial review, that substantial compliance is not the standard for the court to obtain 

subject matter jurisdiction of an appeal, and that the statute sets forth the content of what 

the petitioner must file with the trial court. Further, the Building Department contends

that there is no statutory authority to extend the time for filing the verified petition which 

must include the findings and that the trial rules cannot work to resurrect an untimely 

petition for review. In their reply brief, the Grabers argue that their complaint was timely 

filed and that the Building Department glosses over the fact that the findings and action 

in the Schmucker case are exactly the same as those in the Graber case. 

Ind. Code § 36-7-9-8 provides: 
11

(a) An action taken under section 7(d) or 7(e) of this chapter is subject 

to review by the circuit or superior court of the county in which the 

unsafe premises are located, on request of:

(1) any person who has a substantial property interest in 

the unsafe premises; or

(2) any person to whom that order was issued.

(b) A person requesting judicial review under this section must file a 

verified complaint including the findings of fact and the action taken 

by the hearing authority. The complaint must be filed within ten (10) 

days after the date when the action was taken. 

(c) An appeal under this section is an action de novo. The court may 

affirm, modify, or reverse the action taken by the hearing authority. 

(Emphasis added). 

We initially note that this case does not involve subject matter jurisdiction or 

personal jurisdiction. The Indiana Supreme Court clarified jurisdiction concepts in K.S. 

v. State, 849 N.E.2d 538 (Ind. 2006), holding: 

Like the rest of the nation’s courts, Indiana trial courts possess two kinds of 

“jurisdiction.” Subject matter jurisdiction is the power to hear and 

determine cases of the general class to which any particular proceeding 

belongs. Personal jurisdiction requires that appropriate process be effected 

over the parties. 

Where these two exist, a court’s decision may be set aside for legal error 

only through direct appeal and not through collateral attack. Other phrases 

recently common to Indiana practice, like “jurisdiction over a particular 

case,” confuse actual jurisdiction with legal error, and we will be better off 

ceasing such characterizations. 

849 N.E.2d at 540. See Packard v. Shoopman, 852 N .E.2d 927 (Ind. 2006) (holding that 

statutory deadlines for filing a petition for judicial review in the Tax Court referred to 

what was previously known as “jurisdiction over a particular case”); Druids-Grove, 847 

N.E.2d at 926 (“The timing of filing the agency record implicates neither the subject 
12

matter jurisdiction of the Tax Court nor personal jurisdiction over the parties. Rather, it 

is jurisdictional only in the sense that it is a statutory prerequisite to the docketing of an 

appeal in the Tax Court.”). Regardless of whether the verified complaint including the 

findings of fact and the action taken by the hearing authority was timely filed in this case, 

the trial court had subject matter jurisdiction to consider a petition for judicial review 

challenging a final agency decision. See Izaak Walton League of Am., Inc. v. DeKalb 

Cnty. Surveyor’s Off., 850 N.E.2d 957, 962 (Ind. Ct. App. 2006) (noting that 

“[r]egardless of whether the agency record was timely filed in this case, the trial court 

had subject matter jurisdiction to consider a petition for judicial review challenging a 

final agency decision”), reh’g denied, trans. denied. 

The crux of the matter in this case is whether the Grabers’ initial June 4, 2012 

complaint for review, notwithstanding the fact that the findings related to the 

Schmucker’s property were inadvertently attached, constituted an adequate petition for 

judicial review of a final agency action where the trial court subsequently granted the 

Grabers’ July 9, 2012 motion to amend their complaint for review which attached the 

correct findings of the hearing officer related to their property. 

Under Ind. Code § 36-7-9-8, the Grabers as the petitioners had the duty to file a 

verified complaint within ten days after the date when the agency action was taken, and 

the Building Department has not asserted that the Grabers’ initial June 4, 2012 complaint 

for review was untimely. The substance of the Building Department’s argument is that 

the Grabers mistakenly attached the incorrect agency findings, that the Grabers were not 

permitted to amend the complaint to attach the correct findings, and thus that the trial 
13

court was required to dismiss their request for judicial review. The Building Department 

does not point to authority, other than Ind. Code § 36-7-9-8(b) itself, for the proposition 

that the Grabers were not permitted to request to amend their initial complaint or petition 

for judicial review under Ind. Code § 36-7-9-8(b). While the subsection does not 

specifically provide that a petitioner may amend a complaint, it also does not specifically 

provide that a petitioner is precluded from doing so, and we note that the Indiana Rules of 

Trial Procedure provide that a party may amend pleadings by leave of court or once as a 

matter of course under certain circumstances.2 We observe that the initial complaint 

referred to the April 24 and May 24, 2012 orders related to the Grabers’ property issued 

by the Commissioner and the Building Department, respectively, but that the complaint 

attached the agency action taken by the Building Department in connection with the 

property of the Grabers’ neighbors, the Schmuckers. On July 9, 2012, the Grabers filed 

their motion for leave to file an amended complaint which attached the correct findings 

and final agency action, noting that the Grabers’ counsel inadvertently attached the 

findings of a case related to the Schmuckers, which had been heard on the same day as 

the Grabers’ case by the same hearing officer, and that all of the findings of fact in both 

 

2

Ind. Trial Rule 15(A) provides: 

Amendments. A party may amend his pleading once as a matter of course at any time 

before a responsive pleading is served or, if the pleading is one to which no responsive 

pleading is permitted, and the action has not been placed upon the trial calendar, he may 

so amend it at any time within thirty [30] days after it is served. Otherwise a party may 

amend his pleading only by leave of court or by written consent of the adverse party; and 

leave shall be given when justice so requires. A party shall plead in response to an 

amended pleading within the time remaining for response to the original pleading or 

within twenty [20] days after service of the amended pleading, whichever period may be 

the longer, unless the court otherwise orders. 
14

cases were identical. On July 23, 2012, the trial court granted the Grabers’ July 9, 2012 

motion to file an amended complaint. 

Despite the fact that the Grabers amended their complaint to include the correct 

agency findings and action, which was permitted by the trial court, the Building 

Department asserts that the language of Ind. Code § 36-7-9-8(b) precludes the Grabers 

from obtaining judicial review because their original complaint attached findings related 

to the Schmuckers’ case. In the case of Izaak Walton, this court addressed the issue of 

whether an agency record that the petitioner filed constituted an adequate record for 

purposes of a petition for judicial review of an agency action. 850 N.E.2d at 963. 

Although the opinion addressed a different agency action and a requirement of filing an 

agency record rather than the inclusion of the findings and agency action in a complaint, 

the discussion of the principles of statutory interpretation and judicial review of agency 

actions provide some guidance here. The court noted that, in following principles of 

statutory interpretation, we must determine, give effect to, and implement the legislative 

intent underlying the statute and construe it in such a way as to prevent absurdity and 

hardship and to favor public convenience, that because statutes are examined as a whole, 

it is often necessary to avoid excessive reliance on a strict literal meaning of the words or 

phrases in the statute, and that we must consider the objects and purposes of the statute as 

well as the effects and repercussions of such an interpretation. Id. at 964-965. The court 

further noted: “We think the purposes of the statutes governing what constitutes an 

adequate agency record for purposes of a petition for judicial review are clear. The 

record must include all that is necessary in order for the reviewing court to accurately 
15

assess the challenged agency action.” Id. at 965. The court held that the petitioner had 

submitted an adequate agency record even though several documents were excluded 

where those documents concerned matters not relevant to the issue, and the court 

reversed the trial court’s dismissal of the petition for judicial review and remanded for 

further proceedings. Id. at 965-968. 

In this case, we note that the purpose of the requirement in subsection (b) of Ind. 

Code § 36-7-9-8 that a verified complaint include the findings of fact and the action taken 

by the hearing authority is that the relevant agency action and the reasoning of the 

hearing authority, if applicable, are before the reviewing court. In construing the statute 

in such a way as to prevent absurdity and hardship and to favor public convenience and in 

considering the effects and repercussions of our interpretation, we cannot say that the 

inadvertent inclusion or attachment of the hearing officer’s findings related to the 

Schmuckers’ property, which were identical to the findings related to the Grabers’ 

property, to the original complaint precludes the Grabers from obtaining judicial review 

of the hearing officer’s action, particularly in light of the fact that the Grabers amended 

their complaint with the approval of the trial court and there was no prejudice to the 

Building Department as a result of filing the amended complaint. 

Based upon the record and under the circumstances, we conclude that the trial 

court erred in granting the Building Department’s motion to dismiss. See Izaak Walton,

850 N.E.2d at 968. Accordingly, we reverse the dismissal of the Grabers’ complaint and 

remand for further proceedings on their amended verified complaint for review. 
16

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of the motion to 

dismiss and remand for further proceedings. 

Reversed and remanded. 

RILEY, J., and BRADFORD, J., concur.