Court of Appeals of Indiana | Opinion 18A

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A TTORNEY S FOR A PPELLANT David W. Stone IV Stone Law Office & Legal Research Anderson, Indiana Loren K. Allison Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE Ann M. Trzynka Andrew P. Simmons Van Gilder & Trzynka, P.C. Fort Wayne, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Stephan M. Poiry , Appellant

- Plaintiff , v. 

### City of New Haven, Indiana , Appellee

- Defendant

. November 8, 2018 Court of Appeals Ca se No. 18A

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- 1066 Appeal from the Allen Superior Court The Honorable Craig J. Bobay, Judge Trial Co urt Cause No. 02D02

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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 grante d summary judgment to the City and denied h is motion to correct error because Poiry failed to file a bondCourt of Appeals of Indiana | Opinion 18A

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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

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. 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 denie d 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 Off ice (“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

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[5] After Poiry filed his complaint, he did not file anything with the trial court to attempt to se t 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

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- 18(b)(5) . On January 29, 2018, the City filed a motion to dismi ss based on Poiry’s failure to post a bond pursuant to Indiana Code section 36

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- 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 postin g a bond and was told the court ha d 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 11 6

- 1 7.

[6] On March 8, 201 8, the trial court heard oral argum ents on both motions filed by the parties

. Because matters outside the pleadings were presented in the City’s motion to d ismiss, the trial court treated the motion as a motion for summary judgment. Id . at 11. On April 5, 2018, the trial court issued its o rder g ranti ng summary j udgment in favor of the City. Id

. at 8

- 16. Poiry filed a motion to correct e rror on April 20, 2018

. The trial court denied Poiry’s

m otion on May 23, 2018. Poiry now appeal s .



### 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

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An a buse 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 inter pretation 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. den ied ) . 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 ). TheCourt of Appeals of Indiana | Opinion 18A

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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 i ssue 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 summ ary 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 pur e 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 l egislature 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) )

. Whe n 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

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ordinary, and usual sense. Id . at 219 (citing Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 157 (In d. 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

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- 18(b)(4 ) is ambiguous in that it requires that a bon d 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 tha t he was not aware of the a mount he should pay to satisfy the bond requirement when he filed his ap peal 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 simultaneous ly with his appeal

. At the time that summary judgment was entered by the trial court, a bond amount ha d 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 memb er 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

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- 18(a). When the plaintiff files his complaint, a bond must be filed, and Indiana Code section 36

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- 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

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. . . . (4) The plaintiff must file a bond at the time of fili ng 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

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- 18(b)(4). While subsection (b)(4) is clear that a bond must be filed when an appeal is fi led, 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

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- 1, which controls the fixing of bonds by judges, it states that the statutory section appl ies 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

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- 1(a). When these conditions ap ply, 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

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- 1(b) (emphasis added). Here, a bond was required, pursuant to Indiana Code section 3 6

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- 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

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- 18 does not contain a provision specifying the amount of bond to be filed. Theref ore, in accordance with Indiana Code section 34

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- 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

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[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

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- 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 adeq uate 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 t o continue on the merits.

[16] Ind. Code 29

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- 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 r endered 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 t he 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 precedentCourt of Appeals of Indiana | Opinion 18A

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to the filing of a will

- contest complaint, but the plain tiff must file a bond “before being permitte d 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 t o file a bond at the time of filing the appeal cann ot 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.