FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

TODD ESS R. ERIC SANDERS

Indianapolis, Indiana Assistant Corporation Counsel

Office of Corporation Counsel

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ROBERT M. GATES, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1210-OV-503

)

CITY OF INDIANAPOLIS, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David J. Certo, Judge

Cause No. 49F12-1204-OV-14334

July 11, 2013

OPINION - FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Robert Gates appeals the trial court’s order denying his demand for a jury trial in 

this action in which the City of Indianapolis (“the City”) alleged that Gates violated three 

municipal ordinances. Gates presents a single issue for our review, namely, whether the 

trial court erred when it denied his demand for a jury trial.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On February 22, 2012, Indianapolis Animal Care and Control Officer Tiffany 

Compton issued three citations to Gates for violations of three ordinances of the Revised 

Code of the Consolidated City of Indianapolis and Marion County (“Revised Code”). On 

April 10, the City filed a civil complaint against Gates alleging that he had violated the 

following ordinances: Section 531-401 (General Requirements for Animal Care and 

Treatment); Section 531-202 (Permanent Identification of Dogs and Cats Required); and 

Section 531-203 (Curbing). In particular, Officer Compton observed that Gates had 

permitted his dog to defecate on a public street without cleaning up after it, and he had hit 

his dog multiple times. In addition, Gates’ dog had neither permanent identification nor 

proof of rabies vaccination. On June 22, Gates filed his demand for a jury trial,1 which 

the trial court denied. This appeal ensued.2

DISCUSSION AND DECISION

Gates contends that he is entitled to a jury trial under Article I, Section 20 of the 

Indiana Constitution, which provides that, “[i]n all civil cases, the right of trial by jury 

 

1

 The trial court found that Gates’ demand for jury trial was timely filed.

2

 Gates filed this interlocutory appeal pursuant to Indiana Appellate Rule 14(B).
3

shall remain inviolate.” As we observed in Cunningham v. State, 835 N.E.2d 1075, 1076 

(Ind. Ct. App. 2005), trans. denied, an issue presented on appeal is a pure question of law 

when the question does not require reference to extrinsic evidence, inferences drawn 

from that evidence, or the consideration of credibility questions. We review purely legal 

issues de novo. Id. This is such a question, and we review Gates’ claim de novo. In 

doing so, we give no deference to a trial court’s legal conclusions. Id.

It is well settled that Article I, Section 20 of the Indiana Constitution serves to 

preserve the right to a jury trial only as it existed at common law. Songer v. Civitas 

Bank, 771 N.E.2d 61, 63 (Ind. 2002). And Indiana Trial Rule 38(A) provides:

Causes triable by court and by jury.

Issues of law and issues of fact in causes that prior to the eighteenth day of 

June, 1852, were of exclusive equitable jurisdiction shall be tried by the 

court; issues of fact in all other causes shall be triable as the same are now 

triable. In case of the joinder of causes of action or defenses which, prior to 

said date, were designated as actions at law and triable by jury—the former 

shall be triable by the court, and the latter by a jury, unless waived; the trial 

of both may be at the same time or at different times, as the court may 

direct.

In a concurring opinion in Midwest Security Life Insurance Co. v. Stroup, 730 N.E.2d 

163, 169-70 (Ind. 2000), Justice Boehm explained the right to a jury trial as follows:

Both Article I, Section 20 and Indiana Trial Rule 38(A) provide for the 

right of a trial by jury in certain instances. The right to a jury trial is a 

“fundamental right in our democratic judicial system” that must be 

“scrupulously guarded” against encroachment. Levinson v. Citizens Nat’l 

Bank, 644 N.E.2d 1264, 1267 (Ind. Ct. App. 1994). In my view, the crucial 

inquiry, however, is not, as the Court of Appeals put it, whether a cause of 

action existed at common law. Rather, it is whether the cause of action is 

essentially legal or equitable, as those terms were used in 1852. See

Midwest Fertilizer Co. v. Ag-Chem Equip. Co., 510 N.E.2d 232, 233 (Ind.

Ct. App. 1987) (“[T]he key determination to be made is whether the claim 

involved is legal or equitable in character.”). If an action is essentially legal 
4

in nature, a jury demand must be honored, but those causes of action that 

are equitable may be tried to the court. This formulation can be found in 

several Indiana decisions, both recent and ancient. See, e.g., Fager v. 

Hundt, 610 N.E.2d 246, 253 n.9 (Ind. 1993); Dean v. State ex rel. Bd. of 

Med. Registration & Examination, 233 Ind. 25, 31-32, 116 N.E.2d 503, 507 

(1954); Fish v. Prudential Ins. Co., 225 Ind. 448, 452-53, 75 N.E.2d 57, 59 

(1947); Martin v. Martin, 118 Ind. 227, 237, 20 N.E. 763, 767-68 (1889).

If the cause of action existed on June 18, 1852, then this issue is 

decided by history. Legal actions at that time included replevin, ejectment, 

fraudulent conveyances, and actions for money damages, see City of Terre 

Haute v. Deckard, 243 Ind. 289, 293, 183 N.E.2d 815, 817 (1962); Howell 

v. State Farm Fire & Cas. Co.,530 N.E.2d 318, 319-20 (Ind. Ct. App.

1988), while equitable actions included injunctions, reformations, 

derivative actions, accounting, discovery, and land transactions, see Dean,

233 Ind. at 31-32, 116 N.E.2d at 507; Sikich v. Springmann, 221 Ind. 483, 

487-88, 48 N.E.2d 808, 809-10 (1943); Lewandowski v. Beverly, 420 

N.E.2d 1278, 1282 (Ind. Ct. App. 1981).

If, however, the cause of action is one that was not in existence in 

1852, it is necessary to determine whether it is closer to a claim at law or 

one in equity. “To determine whether or not a party is entitled to a trial by 

jury, we look beyond the label given a particular action and evaluate the 

nature of the underlying substantive claim.” Hacienda Mexican Restaurant 

v. Hacienda Franchise Group, Inc., 641 N.E.2d 1036, 1041 (Ind. Ct. App.

1994). This involves evaluating “the complaint, the rights and interest[s] 

involved, and the relief demanded.” Levinson, 644 N.E.2d at 1267.

In this appeal, Gates contends that our opinion in Cunningham is dispositive and 

requires reversal of the trial court’s order denying a jury trial. In Cunningham, we held 

that the defendant was entitled to a jury trial after he was issued a traffic ticket for 

speeding, a Class C infraction. We agreed with the defendant that he was entitled to a 

jury trial under Article I, Section 20 of the Indiana Constitution, and our reasoning was as 

follows:

Clearly, the simplest way to determine whether a respondent has the right 

to a jury trial in a proceeding for a speeding infraction would be to look at 

the 1852 statutes governing speed zones. That approach is of little help 

here, however, because the earliest versions of today’s speed zone statutes 
5

were not codified until 1939. We must therefore proceed to the alternative 

path of analysis that Justice Boehm discusses [in his concurring opinion in 

Midwest Sec. Life Ins. Co.]: whether the cause of action at issue is 

equitable or legal in nature. We must determine whether an action for a 

traffic infraction would have been considered equitable had it existed in 

1852. We hold that it would not have been an equitable action.

In making this determination, we note that, until 1981, an infraction 

was considered a criminal action and was not governed by what were then 

titled the Indiana Rules of Civil Procedure. Wirgau, 443 N.E.2d at 329, 

n.1. . . . It is clear that from the time of their inception until 1981, when the 

Indiana Rules of Civil Procedure and, now, the Indiana Rules of Trial 

Procedure began to govern the enforcement of infraction violations, such 

offenses were criminal actions and, as such, were not equitable in nature.

* * *

Though they are now governed by the Indiana Rules of Trial 

Procedure, speeding infractions remain quasi-criminal in nature—they are 

enforced by the police; complaints are initiated and litigated by a 

prosecuting attorney on behalf of the State; and violators are fined by the 

government. Because of this, it logically follows that, just as criminal 

actions were outside the scope of equitable actions as provided by our case 

history, so, too, would quasi-criminal actions have been historically non[-

]equitable. Instead, in 1852, actions criminal in nature would necessarily 

have been legal. In such actions, a jury trial demand must be honored.

Midwest Sec. Life Ins. Co., 730 N.E.2d at 169. We therefore hold that the 

trial court improperly denied Cunningham’s request for a jury in violation 

of Article I, Section 20 of the Indiana Constitution.

835 N.E.2d at 1077-79 (emphases added, footnotes omitted).

Here, the trial court found, and the parties agree, that the ordinances at issue did 

not exist prior to 1852. Accordingly, we must determine whether this cause of action 

would have been considered a claim of equity or law in 1852. See id. at 1077. With 

respect to the nature of the underlying substantive claim, namely, the ordinance 

violations, our supreme court has held that “the violation of city ordinances” are “of a 
6

quasi criminal nature.” See Lickey v. City of South Bend, 206 Ind. 636, 640, 190 N.E. 

858, 860 (1934).3

We also find Cunningham instructive on this question. While the nature of the 

ordinances at issue in this case has not previously been considered by this court, the 

violations at issue are quasi-criminal because they are enforced by the Indianapolis 

Department of Public Safety,

4

complaints are initiated and litigated by a prosecuting 

attorney on behalf of the City, and violators are fined by the government. See

Cunningham, 835 N.E.2d at 1079. And we agree with Gates that the mandatory fines

imposed in this case are akin to claims for money damages, which were “exclusively 

legal actions in 1852[.]” See id. at 1078.

The City is correct that it is well established that “prosecution for the violation of a 

city ordinance in which a monetary penalty only is sought is a civil and not a criminal 

action.” See Boss v. State, 944 N.E.2d 16, 21 (Ind. Ct. App. 2011). But in Boss, we 

addressed only the question of double jeopardy where the defendant’s criminal charges 

“stemmed from the same incident involving Boss’s dogs from which the ordinance 

violations arose.” Id. That question is entirely distinct from the question of whether the

violation of the same ordinances would have been addressed in a court of equity or a 

court of law in 1852. As such, Boss is not instructive here.

 

3

 In Lickey, the defendant allegedly violated an ordinance that “provided for the licensing of 

peddlers and hawkers[.]” 206 Ind. 636, 190 N.E. 858, 860.

4

 The Indianapolis Department of Public Safety (“DPS”) is described as a “police agency” on the 

complaints filed against Gates, and DPS oversees both the Indianapolis Metropolitan Police Department 

and the Animal Care and Control Division. See Indianapolis-Marion County, Ind., City-County 

General Ordinance No. 251-101.
7

While the ordinances at issue here can be used to abate and prevent nuisances, the 

City has not sought injunctive relief but will impose mandatory fines as provided for in 

Section 531-401 and Section 531-203. The trial court points out that the City “likely will 

follow its practice and request an injunction against future violations of Chapter 531 if it 

prevails against Mr. Gates.” Appellant’s App. at 12. But there is no injunctive relief 

requested in the case as it now stands, and it would be improper for us to speculate as to 

what the City might do in the future.

The City’s request for monetary relief under the ordinances is unlike, for example, 

a foreclosure action, in which a court in equity would be permitted to hear a legal claim 

for breach of contract in conjunction with the injunctive relief sought. See Songer, 771 

N.E.2d at 66 (holding where the essential features of a suit sound in equity, the entire 

controversy is drawn into equity, including incidental questions of a legal nature). Here, 

again, only monetary damages are sought and there is no basis for drawing that legal 

claim into equity. The nature of the underlying substantive claims brought against Gates

is quasi-criminal, and he is entitled to a jury trial under Article I, Section 20 of the 

Indiana Constitution. We reverse and instruct the trial court to grant Gates’ jury trial 

request.

Reversed and remanded with instructions.

BAILEY, J., and BARNES, J., concur.