Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018 Page 1 of 9

ATTORNEYS FOR APPELLANT

David W. Stone IV

Stone Law Office & Legal Research

Anderson, Indiana

Loren K. Allison

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-MI-1066

Appeal from the 

Allen Superior Court

The Honorable 

Craig J. Bobay, Judge

Trial Court Cause No.

02D02-1711-MI-1046

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 granted summary judgment to the 

City and denied his motion to correct error because Poiry failed to file a bond 
Court of Appeals of Indiana | Opinion 18A-MI-1066 | November 8, 2018 Page 2 of 9

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 35-36. 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 denied 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 Office 

(“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 set 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 36-8-3.5-18(b)(5). On January 29, 

2018, the City filed a motion to dismiss based on Poiry’s failure to post a bond 

pursuant to Indiana Code section 36-8-3.5-18(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 posting a bond and 

was told the court had 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 116-17. 

[6] On March 8, 2018, the trial court heard oral arguments on both motions filed 

by the parties. Because matters outside the pleadings were presented in the 

City’s motion to dismiss, the trial court treated the motion as a motion for 

summary judgment. Id. at 11. On April 5, 2018, the trial court issued its order 

granting summary judgment in favor of the City. Id. at 8-16. Poiry filed a 

motion to correct error on April 20, 2018. The trial court denied Poiry’s 

motion on May 23, 2018. Poiry now appeals. 

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). 
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An abuse 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 interpretation 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. 

denied). 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). The 
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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 issue 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 summary 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 pure 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 legislature 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)). When 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, 
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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 (Ind. 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 36-8-3.5-18(b)(4) is ambiguous in that it requires that a bond 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 

that he was not aware of the amount he should pay to satisfy the bond 

requirement when he filed his appeal 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 simultaneously with his appeal. 

At the time that summary judgment was entered by the trial court, a bond 

amount had 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 member 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 § 36-8-3.5-18(a). When the plaintiff files his complaint, a bond must 

be filed, and Indiana Code section 36-8-3.5-18 states in pertinent part:

(b) The appeal shall be made according to the Indiana rules of 

trial procedure with the following exceptions:
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. . . .

(4) The plaintiff must file a bond at the time of filing the 

complaint conditioned on the plaintiff prosecuting the appeal to a 

final determination and paying the court costs incurred in the

appeal.

Ind. Code § 36-8-3.5-18(b)(4). While subsection (b)(4) is clear that a bond must 

be filed when an appeal is filed, 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 34-49-1-1, which controls the fixing of bonds by 

judges, it states that the statutory section applies 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 § 34-49-1-1(a). When these conditions apply, 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 § 34-49-1-

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

section 36-8-3.5-18, 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 36-8-3.5-18 does not contain a provision specifying the amount of 

bond to be filed. Therefore, in accordance with Indiana Code section 34-49-1-

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. 
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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 36-8-3.5-18 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 adequate 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 

to continue on the merits.

[16] Ind. Code 29-1-7-19, 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 rendered 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 the 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 precedent 
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to the filing of a will-contest complaint, but the plaintiff must file a bond “before 

being permitted 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 

to file a bond at the time of filing the appeal cannot 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.