Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Nov 05 2014, 10:33 am
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-148
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OPINION ON REHEARING - NOT FOR PUBLICATION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 petitioned for rehearing 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 but
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the trial court rules on a paper record without an evidentiary hearing, we
afford 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 trial court’s
decision, we dismissed Appellants’ “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 when 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
possible clerical error is an affidavit filed by Appellants’ attorney in response to the
motion to dismiss, in which the attorney stated that 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.
The chronological case summary is devoid of any indication that Whitestown was
to be served,1 and in fact, Whitestown did not receive a summons. Even more 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 the 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.
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$139,” id. at 39, which was an amount insufficient to issue a summons to an additional
party. Because we believe the evidence in the record shows that Appellants’ failed to
serve all necessary parties as required by the Administrative Orders and Procedures Act,
we again affirm the trial court’s dismissal of Appellants’ petition for judicial review.
BRADFORD, J., concurs.
RILEY, J., would deny rehearing.
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