Roy Defries v. Board of Commissioners of Posey County (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 9:34 am

this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Christopher C. Wischer Beth McFadin Higgins
Raymond P. Dudlo Mount Vernon, Indiana
Evansville, Indiana
Jacob P. Weis
Poseyville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Roy Defries, et al., April 12, 2017
Appellants-Defendants, Court of Appeals Case No.
65A05-1508-MI-1249
v. Appeal from the Posey Circuit
Court
Board of Commissioners of The Honorable James M.
Posey County, et al., Redwine, Judge
Appellees-Plaintiffs The Honorable Robert R.
Aylsworth, Special Judge
Trial Court Cause No.
65C01-1401-MI-18

Altice, Judge.

Case Summary

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[1] This case revolves around a small piece of land in unincorporated Posey

County known as South Road, which was dedicated as a public road nearly two

centuries ago. In 2013, a group of adjacent landowners, made up of Donald

and Virginia Alsop, Janice Heinlin, and Alvin and Jennifer Blaylock

(collectively, the Petitioners), filed a petition asking the Board of

Commissioners of Posey County (the Board) (collectively with the Petitioners,

the Appellees) to vacate South Road. A competing group of landowners and

nearby business owners, made up of Roy and Nancy DeFries, Indian Mound

Farm, LLC, David Flanders, and Johnathan Scott1 (collectively,

Remonstrators), remonstrated. After a public hearing, the Board voted

unanimously to grant the petition to vacate South Road and adopted an

ordinance to that effect. The Remonstrators appealed to the Posey County

Circuit Court, which affirmed the Board’s decision. On appeal to this court, the

Remonstrators raise a number of issues which we consolidate and restate as the

following two:

1. Must the Board’s decision be set aside due to its failure to
hold a hearing within thirty days as required by Ind. Code § 36-7-
3-12(c)?

2. Was the Board’s decision to vacate South Road arbitrary,
capricious, or an abuse of discretion?

1
Remonstrators Roy and Nancy DeFries and Indian Mound Farm own land adjacent to South Road.
Remonstrators Flanders and Scott are not adjacent landowners, but they own a business in nearby New
Harmony.

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[2] We affirm.2

Facts & Procedural History

[3] South Road is located in unincorporated Posey County and runs east to west,

abutting the southern boundary of the town of New Harmony. South Road is

approximately 738.11 feet long and 41.5 feet wide and intersects on its west end

with Main Street. The Alsops and Heinlin use a short paved or gravel portion

of the west end of South Road as a driveway, and an outbuilding owned by

Heinlin is located within the strip of land platted as South Road. East of this

structure, the road gives way to dense underbrush and forest. There is no actual

roadway on this portion of the land platted as South Road, and a ditch runs

through part of the right-of-way. On its east end, the land platted as South

Road dead-ends into the Blaylocks’ back yard. South Road has never been

maintained by the county for public travel and it is not listed on the state

highway inventory for purposes of the allocation of road maintenance funding.

[4] The current petition to vacate is not the first legal proceeding involving South

Road. In 1977, the Posey Circuit Court resolved a dispute between then-

owners of the land adjacent to South Road, one of whom had erected

obstructions on the land and claimed ownership through adverse possession.

Cook v. Rosebank Dev. Corp., 376 N.E.2d 1196, 1197 (Ind. Ct. App. 1978). The

2
We held oral argument in this matter on March 9, 2017, at DePauw University in Greencastle. We thank
the students, faculty, and staff for their hospitality, and we commend counsel for the quality of their
advocacy.

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 trial court found that South Road was a public road, rejected the claim of

adverse possession, and ordered the defendants to remove all obstructions from

the road and enjoined them from interfering with the use of South Road in the

future. Id. at 1198-99. This court affirmed the trial court on appeal. Id. at

1200-01. The record also indicates that the Board denied a previous petition to

vacate South Road in 2005.

[5] The current petition to vacate South Road was filed on June 17, 2013, but

hearing on the matter was delayed due to uncertainty as to whether South Road

was a county road,3 as well as the adjacent landowners’ attempts to reach a

settlement. In December 2013, Remonstrators Flanders and Scott filed another

objection to the proposed vacation of South Road, this time also asserting that

the Board lacked jurisdiction to rule on the petition due to its failure to hold a

public hearing within thirty days as required by Ind. Code § 36-7-3-12(c). The

matter proceeded to public hearing on December 17, 2013. At the conclusion

of the hearing, the Board voted unanimously to grant the petition and signed an

ordinance vacating South Road.

[6] Indian Mound Farm and Roy and Nancy DeFries filed an appeal of the

ordinance in the Posey Circuit Court. Shortly thereafter, Flanders and Scott

filed a motion to intervene, which was granted. The parties submitted briefs

and exhibits, and on July 27, 2015, the trial court issued its findings and

3
It appears that the interested parties were initially uncertain as to whether South Road was located within
the Town of New Harmony or in unincorporated Posey County.

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 judgment affirming the Board’s decision to vacate South Road. This appeal

ensued.

1. Timeliness of Public Hearing

[7] The Remonstrators first argue that the Board’s decision must be set aside for

lack of jurisdiction because the hearing on the petition to vacate South Road

was untimely. “Where, as here, the facts are not in dispute, the question of

subject matter jurisdiction is a pure question of law and the trial court’s decision

should be reviewed de novo.” Richardson v. Bd. Of Comm’rs of Owen Cnty., 965

N.E.2d 738, 742 (Ind. Ct. App. 2012), trans. denied.

[8] Ind. Code § 36-7-3-12(c) provides that a hearing on a petition to vacate a public

way shall be held within thirty days after the petition was received. The parties

do not dispute that the hearing in this case was held well outside this thirty-day

timeframe. Indeed, the hearing was not held until approximately six months

after the petition was filed. The parties disagree, however, on the effect of this

delay on the Board’s authority to issue a decision on the petition. The

Remonstrators argue that the delay deprived the Board of jurisdiction to

consider the petition to vacate, while the Petitioners and the Board argue that a

timely hearing was not a jurisdictional prerequisite and that the delay was

harmless.

[9] The Remonstrators cite no authority supporting their argument that a timely

hearing is a jurisdictional prerequisite to the Board’s consideration of a petition

to vacate. Instead, they argue that “Indiana law does not favor vacating public

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 roads” and “actions vacating public roads require full and substantial

compliance with the governing provisions of such vacations.” Appellants’ Brief

at 13 (citing Cook, 376 N.E.2d at 1196).

[10] Although not directly on point, we find our Supreme Court’s decisions in K.S.

v. State, 849 N.E.2d 538, 541 (Ind. 2006), and In re Adoption of O.R., 16 N.E.3d

965 (Ind. 2014), to be instructive. In K.S., the respondent in a proceeding to

revoke juvenile probation sought to set aside his original delinquency

adjudication based on a procedural error—the failure of the court to approve

the filing of the delinquency petition. 849 N.E.2d at 541. The respondent

characterized the defect as a jurisdictional one, which would leave the

delinquency adjudication open to such a collateral attack. Id. In rejecting this

argument, our Supreme Court noted that “[a]ttorneys and judges alike

frequently characterize a claim of procedural error as one of jurisdictional

dimension. The fact that a trial court may have erred along the course of

adjudicating a dispute does not mean it lacked jurisdiction.” Id. The court

explained that “[r]eal jurisdictional problems would be, say, a juvenile

delinquency adjudication entered in a small claims court, or a judgment

rendered without any service of process.” Id. at 542. The court noted that

“[t]he question of subject matter jurisdiction entails a determination of whether

a court has jurisdiction over the general class of actions to which a particular

case belongs” and that the juvenile court had exclusive jurisdiction over cases

involving juvenile delinquency. Id. Thus, the respondent’s claim was one of

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 procedural error, not jurisdiction, and not a proper basis for a collateral attack.

Id.

[11] In O.R., the biological father of a minor child attempted to appeal an order

granting an adoption petition filed by his daughter’s guardians. 16 N.E.3d at

968. This court dismissed the appeal, concluding that it lacked jurisdiction

because father’s notice of appeal was not timely filed pursuant to Ind. Appellate

Rule 9, which provides that the right to appeal “shall be forfeited” unless a

notice of appeal is filed within thirty days of the entry of final judgment. On

transfer, our Supreme Court acknowledged that it “ha[d] long taken the

position that timely filing is a jurisdictional prerequisite to the consideration of

an appeal.” O.R., 16 N.E.3d at 969. The court went on to explain, however,

that it had subsequently made note of the “tendency in procedural law to treat

various kinds of serious procedural errors as defects in subject matter

jurisdiction” and held that its prior case law characterizing the untimely filing

of a notice of appeal as a jurisdictional defect reflected that misapprehension.

Id. at 970 (quoting K.S., 849 N.E.2d at 541). The court reasoned that App. R. 9

uses the language of forfeiture, not jurisdiction, and that there is a crucial

distinction between the two. O.R., 16 N.E.3d at 970-71. A forfeiture means

that a party has lost a right, while a lack of jurisdiction deprives a court of the

authority to hear a case. Id. Thus, where a party has forfeited the right to

appeal by failing to file a timely notice of appeal, the question becomes

“whether there are extraordinarily compelling reasons why this forfeited right

should be restored.” Id. at 971. In that case, the court found that such reasons

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 existed based on father’s attempts to perfect a timely appeal and the

constitutional dimensions of the parent-child relationship. Id. at 972. See also

Hunter v. Ind. Dep’t of Transp., 67 N.E.3d 1085, 1089 (Ind. Ct. App. 2016)

(holding that former state employee’s failure to timely file petition for judicial

review of administrative order affirming his termination was not a jurisdictional

error because the relevant statute was written “in terms of waiver and not

subject matter jurisdiction”), trans. pending.

[12] The Remonstrators’ arguments concerning the Board’s jurisdiction reflect the

tendency, noted by our Supreme Court in K.S. and O.R., to treat certain types of

procedural errors as defects in subject matter jurisdiction. The statute setting

forth the thirty-day time limit for holding a public hearing makes no mention of

jurisdiction—indeed, it does not even mention waiver or forfeiture for failure to

hold a hearing within that timeframe. See I.C. § 36-7-3-12(c). We will not

presume that I.C. § 36-7-3-12(c) sets forth a jurisdictional requirement in the

absence of statutory language to that effect. See Hancock Cnty. Rural Elec.

Membership Corp. v. City of Greenfield, 494 N.E.2d 1294, 12-95-97 (Ind. Ct. App.

1986) (construing the word “shall” appearing in a statute setting a ninety-day

time limit for issuing a ruling on a petition to change a utility service area as

directory rather than jurisdictional in the absence of statutory language

providing that a timely ruling was a jurisdictional requirement and where the

time limit “d[id] not go to the essence of the statutory purpose”), trans. denied.

[13] We further conclude that any error resulting from the Board’s failure to hold the

hearing within thirty days in accordance I.C. § 36-7-3-12(c) was harmless

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 because it did not affect the substantial rights of the parties. See Ind. Trial Rule

61 (providing that “[t]he court at every stage of the proceeding must disregard

any error or defect in the proceeding which does not affect the substantial rights

of the parties”). As the Petitioners note, “[n]o party was prejudiced from the

time the Petition was filed until the hearing date, because the status quo of

South Road was maintained.” Appellees’ Brief at 10. Although the

Remonstrators claim that they were prejudiced because they “were forced to

wait nearly five months to voice their objections[,]” they do not explain why

such delay, standing alone, prejudiced their rights. Reply Brief at 7. If anything,

the delay benefitted the Remonstrators by preserving their right to access to

South Road for several additional months while the petition was pending.

Because the Remonstrators cannot demonstrate prejudice resulting from the

delayed hearing, they have not established reversible error on that basis.

2. Merits of the Board’s Decision

[14] The Remonstrators also challenge the merits of the Board’s decision to vacate

South Road. I.C. § 36-7-3-12 provides that within thirty days of the adoption of

an ordinance vacating a public road, any aggrieved person may appeal to the

circuit, superior, or probate court of the county, which “shall try the matter de

novo[.]” This court has noted, however, that the phrase “de novo,” when used

in statutes granting judicial review of administrative or legislative proceedings,

has not been construed in the usual sense because “our constitutional

relationship with the other branches of government precludes such a review.”

Smith v. City of Shelbyville, 462 N.E.2d 1052, 1055-56 (Ind. Ct. App. 1984)

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 (quoting City of Indianapolis v. Nickel, 331 N.E.2d 760, 769 (Ind. Ct. App. 1975)).

Rather, the trial court is limited to determining whether the decision was

arbitrary, capricious, or an abuse of discretion. Id.

[15] Moreover, when a trial court’s findings are based on a paper record, the

appellate court conducts its own de novo review of the record. Equicor Dev., Inc.

v. Westfield-Washington Twp. Plan Comm’n, 758 N.E.2d 34, (Ind. 2001). See also

West v. Office of Ind. Sec’y of State, 54 N.E.3d 349, 352 (Ind. 2016) (explaining

that when a trial court reviews a paper record only, “we are in just as good of a

position as the trial court was to resolve the case, and thus need not defer to its

ruling”). “To navigate our analysis, we thus follow the same guideposts relied

upon by the reviewing courts below.” West, 54 N.E.3d at 352. Because the

trial court in this case ruled on a paper record only, we need not defer to its

judgment; instead, we review the record applying the same standard as the trial

court. That is, we will reverse only if the Board’s decision is arbitrary,

capricious, or an abuse of discretion. See Smith, 462 N.E.2d at 1055-56. A

decision is arbitrary and capricious if it is made without any consideration of

the facts and lacks any basis that may lead a reasonable person to reach the

same decision. Ind. Pesticide Review Bd. v. Black Diamond Pest & Termite Control,

Inc., 916 N.E.2d 168, 179 (Ind. Ct. App. 2009), trans. denied. In other words, a

decision is arbitrary and capricious if it lacks a reasonable basis. Id.

[16] I.C. § 36-7-3-12(e) provides that “[a]fter a hearing on the petition, the legislative

body may, by ordinance, vacate the public way or public place.” This court has

noted that “[t]he statute, by use of the word ‘may’[,] . . . confers discretionary

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 authority on the legislative body.” Smith, 462 N.E.2d at 1056. The

Remonstrators’ arguments on appeal are based on I.C. § 36-7-3-13, which

provides as follows:

A remonstrance or objection permitted by section 12 of this
chapter may be filed or raised by any person aggrieved by the
proposed vacation, but only on one (1) or more of the following
grounds:

(1) The vacation would hinder the growth or orderly
development of the unit or neighborhood in which it is located or
to which it is contiguous.

(2) The vacation would make access to the lands of the aggrieved
person by means of public way difficult or inconvenient.

(3) The vacation would hinder the public’s access to a church,
school, or other public building or place.

(4) The vacation would hinder the use of a public way by the
neighborhood in which it is located or to which it is contiguous.

The Remonstrators argue that if any one of these circumstances is found to

exist, the legislative body considering a petition to vacate must deny a petition

to vacate. They argue further that they presented evidence indicating that all

four bases for remonstration existed and, consequently, the petition to vacate

should have been denied.

[17] The Appellees note, however, that I.C. § 36-7-3-13 refers only to the grounds

upon which remonstrations may be made; it says nothing concerning the

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 Board’s authority to grant a petition to vacate a public road notwithstanding

such objections.4 According to the Appellees, the only necessary prerequisite to

the vacation of a public road is the filing of a petition meeting the statutory

requirements of I.C. § 36-7-3-12. We need not resolve this question because

even if we assume that I.C. § 36-7-3-13 limits the Board’s discretion in the

manner the Petitioners suggest, we cannot conclude that the Board’s decision

was arbitrary and capricious or an abuse of discretion.

[18] We must first address the Remonstrators’ argument that it was improper for the

Board to consider the prolonged nonuse of South Road in considering the

petition to vacate. There is nothing in the language of the applicable statutes

that would prohibit the Board from weighing the historical nonuse of South

Road against the Remonstrators’ evidence and arguments against vacating the

road. Indeed, this court has considered nonuse in previous opinions affirming

decisions to vacate public roads. See Richardson, 965 N.E.2d at 743 (reasoning

that “[i]n essence, the County’s abandonment and decades of non-use have

disengaged this roadbed from the active county highway system”); Kewanna,

420 N.E.2d at 1294 (affirming decision to vacate an alley based in large part on

“longstanding lack of use”). In any event, evidence that a public road has not

4
We note that Town of Kewanna v. Hollis, 420 N.E.2d 1292 (Ind. Ct. App. 1981) was decided under a now-
repealed statute that allowed petitions to vacate to be filed in the local trial court and required the court to
grant a petition to vacate a road “if, in its opinion, justice shall require it.” Id. at 1293. The court noted that
prior case law had defined “justice . . . by reference to the grounds prescribed for a remonstrance[.]” Id. The
current statute, however, has eliminated the “justice” standard and transferred authority to rule on petitions
to vacate to local legislative bodies. Thus, the continuing applicability of the standard articulated in Kewanna
is questionable.

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 been used in many years is relevant to any consideration of the grounds for

remonstrance listed in I.C. § 36-7-3-13. Accordingly, we conclude that the

Board properly considered the nonuse of South Road when ruling on the

petition to vacate.

[19] The Remonstrators also argue briefly that the evidence presented to the Board

does not support a finding of nonuse, but even the evidence most favorable to

the Remonstrators’ position supports such a finding. The only evidence

concerning use of South Road as a point of access came from Tom Smith, a

manager for Indian Mound Farm, who stated that South Road had been used

to harvest hay from the DeFries property “multiple years ago.” Appellant’s

Appendix Volume 2 at 160. Additionally, although Nancy DeFries testified that

South Road had been cleared seventeen years earlier for the installation of

utility lines, there is no indication that it was used as a means of ingress and

egress at that time. Thus, by all accounts, South Road has not been used at all

in many years, and there is no indication that it has ever been used regularly by

the public.

[20] We now turn our attention to the Remonstrators’ challenge to the Board’s

finding that the statutory grounds for remonstrance had not been proven. The

Remonstrators first argue that vacating South Road will hinder the growth and

orderly development of the neighborhood. See I.C. § 36-7-3-13(2). Specifically,

they note that the Town of New Harmony has obtained a grant to install a

storm water drainage system on South Road, which will require the land to be

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 cleared and the creation of a path.5 According to the Remonstrators, this path

could be used as part of a trail system that runs throughout New Harmony.

They fail to note, however, that evidence in the record indicates that the New

Harmony Town Council had previously voted to forgo developing South Road

as part of its trail system. South Road’s potential suitability for use as a trail,

particularly in the absence of any current plans to do so, is not enough to

establish conclusively that vacating the road would hinder the growth and

development of the neighborhood.

[21] The Remonstrators also argue that they presented uncontradicted evidence that

vacating South Road would make it difficult or inconvenient to access the

property owned by the DeFrieses and Indian Mound Farm.6 See I.C. § 36-7-3-

13(2). Smith stated at the public hearing that Indian Mound Farm had planned

to use South Road at some point in the future to harvest timber from its

property. Smith stated that there were multiple ways to access the property, but

South Road provided the best path to drag timber off of the property while

doing the least damage to existing crop land. Nancy DeFries also stated that

5
In 2011—prior to the filing of the petition to vacate South Road—Posey County granted the Town of New
Harmony an irrevocable license to install the storm water drainage system. Additionally, the ordinance
adopted by the Board provides that South Road is vacated subject to a broad utility easement that specifically
allows for the construction and maintenance of a storm water system. Thus, vacating South Road did not
affect the Town’s ability to carry out the storm water drainage project.
6
The Petitioners assert that the Board agreed with the Remonstrators’ arguments in this regard. In support,
they cite statements made during the public hearing by two of the three commissioners. We note, however,
that the Board did not enter written findings. Our review of the transcript reveals that these statements were
made in the midst of the public hearing and were part of the Board’s fact-finding and deliberative processes.
Accordingly, we do not view them as pronouncements of the facts as found by the Board.

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 she and her husband had let trees grow on the rear portion of their property

with the idea that they could later be harvested, and that it would be difficult

and expensive to do so without the use of South Road. Neither Smith nor

DeFries indicated that there were concrete plans to harvest timber any time in

the near future.

[22] It is undisputed that both the DeFrieses and Indian Mound Farm have access to

their property by way of other public roads and that they have not used South

Road to access their property in many years, if ever. At most, the DeFrieses

and Indian Mound Farm have argued that they may wish to use South Road at

some point in the future for one specific and limited purpose. Given the

speculative nature of this evidence and the uncertainty as to whether it would

be feasible to use South Road for timbering, it was within the Board’s discretion

to attribute greater weight to the lengthy history of nonuse in determining

whether vacating the road would have an actual impact on neighboring

landowners. See Kewanna, 420 N.E.2d at 1294 (finding that speculative

evidence concerning the necessity of the alley to the town’s growth did not

require denial of petition to vacate in light of the Town’s longstanding lack of

use of the alley). The Board’s finding that vacating South Road would not

make access to the Remonstrators’ lands difficult or inconvenient was not

arbitrary, capricious, or an abuse of discretion.

[23] The Remonstrators also claim that vacating South Road would hinder the

public’s access to a school. See I.C. § 36-7-3-13(3). They claim that “[i]t is

common knowledge and widely accepted that South Road led to a public

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 school which is now closed.” Appellants’ Brief at 21. They further assert that it

is irrelevant that the school is closed because it remains a public building.

Although there were a handful of vague references made at the hearing to the

existence of an abandoned public school somewhere near South Road, its

location was never established on the record and it is not shown on the map

included in the record. Moreover, given the condition of South Road and the

fact that it has been abandoned for many years, it is clear that South Road has

not been used to reach the school in the recent past, if ever. There is simply no

evidence in the record that the public has ever relied on South Road to reach a

school.

[24] Finally, the Remonstrators argue that vacating South Road would hinder the

use of a public way—namely, South Road itself. See I.C. § 36-7-3-13(4). We

are unconvinced. The evidence clearly establishes that South Road is a dead-

end road that is not being used, has not been used in many years, and has long

been in a condition such that it cannot be used as a road. The Remonstrators

have not established error in this regard.

[25] In sum, the Remonstrators have not established that the Board’s decision to

vacate South Road was arbitrary, capricious, or an abuse of discretion.

Accordingly, we must affirm.

[26] Judgment affirmed.

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[27] Robb, J. and Crone, J., concur.

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