David Johnson and Ieva S. Johnson and Eva G. Sanders and Joseph K. and Michelle Yeary v. Indiana Department of Environmental Management and Town of Whitestown

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OPINION ON REHEARING - NOT FOR PUBLICATION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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