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.

ATTORNEY FOR APPELLANTS : ATTORNEYS FOR APPELLEES:

DALE W. ARNETT GREGORY F. ZOELLER Winchester, Indiana Attorney General of Indiana

FRANCES BARROW Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

DAVID JOHNSON and IEVA S. JOHNSON ) and EVA G. SANDERS and JOSEPH K. and ) MICHELLE YEARY, ) ) Appellants

- Petitioners, ) )

vs. ) No. 06A05

- 1310

- PL

- 506 ) INDIANA DEPARTMENT OF ) ENVIRONMENTAL MANAGEMENT and ) TOWN OF WHITESTOWN, ) ) Appellees

- Respondents. )

APPEAL FROM THE BOONE CIRCUIT COURT The Honorable J. Jeffrey Edens, Judge Cause No. 06C01

- 1302

- PL

- 1482 November 5, 2014

OPINION ON REHEARING

- NOT FOR PUBLICATION

ROBB, Judge

David Johnson, Ieva S. Johnson, Eva G. Sanders, Joseph K. Yeary, and Michelle
Yeary (collectively, “Appellants”) have petition ed for re hearing of this court’s

memorandum decision in Johnson v. Indiana Dept. of Envtl. Mgmt.
, No. 06A05

- 1310

-

PL

- 506, (Ind. Ct. App.
, Aug. 20, 2014)

. We grant the petition to address Appellants’
assertion that our decision incorrectly applied the standard of review.
As explained in Johnson
, the trial court dismissed Appellants’ appeal of an
administrative agency decision because the Town of Whitestown, a party to the agency

action
, was not served with a summons. Appellants argued before the trial court and on
appeal that the lack of service was the product of a clerical error attributable to the Boone
County Clerk’s Office. We affirmed the trial court, holding that Johnson procedurally
defaulted his claim by failing to serve all necessary parties as required by the

Administrative Orders and Procedures Act. Our decision set out the following standard

of review:
The standard of appellate review of ruling 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. When the facts are in dispute, as here, our standard of review focuses on whether the trial court engaged in its fact

- finding function and held an evidentiary hearing . When the facts are in dispute but3

the trial court rules on a paper record without an evident iary hearing, we affor d the trial court no deference

. We therefore employ a de novo review

.

Id. , slip op. at 3

- 4 (citations and quotation marks omitted) (emphasis added). However,
at the close of our opinion, after recounting the facts favorable to the t rial court’s

decision, we dismissed Appellant s ’ “clerical error” argument by stating it “amounts to a
request to reweigh the evidence

. ” Id. at 6

. Simply stated, we gave deference to the trial

court’s view of the facts whe n none was owed.
Appellants are correct in their assertion that we faltered in adhering to a de novo
standard of review. That said, our view of the facts and the paper record before us

reflects the view of the trial court. The evidence relied on by Appellants to show a

p ossible clerical error is an affidavit filed by Appellants ’ attorney in resp onse to the
motion to dismiss, in which the attorney stated th at he prepared two summonses and that
when he paid the filing fee “it was [his] understanding that IDEM and Whitestown were
both going to be served a summons.” Appellants’ Appendix at 39. This is belied by

other evidence in the record.

T he chronological case summary is devoid of any indication that Whitestown was

to be served, 1 a nd in fact, Whitestown did not receive a summons. Even m ore convincing

are the facts that Whitestown was not listed as a party in the caption of Appellants’

Verified Petition for Judicial Review
, id. at 57 , and the filing fee of $139 paid by
Appellants was the precise amount required to serve a single summons

. See id. at 17

- 18.
Appellants’ own affidavit admits that the attorney “paid t he filing fee in case [sic] of

1 The chronological case summary noted “SUMMONS issued,” as opposed to the plural “summonses.” See Appellant’s App. at 3.4

$139,” id. at 39, which was an amount insu fficient to issue a summons to an additional

party. Because we believe the evidence in the record shows that Appellants’ fai led to
serve all necessary parties as required by the Administrative Orders and Procedures Act
,

we again affirm the trial court’s d ismissal of Appellants’ petition for judicial review.

BRADFORD, J., concur s

. RILEY, J., w ould deny rehearing.