MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 05 2018, 9:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE
Matthew E. Koch
Bunker Hill, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew E. Koch, April 5, 2018
Appellant-Petitioner, Court of Appeals Case No.
17A-MI-3018
v. Appeal from the Vanderburgh
Superior Court
The Vanderburgh County The Honorable Leslie C. Shively,
Treasurer, Judge
Appellee-Respondent Trial Court Cause No.
82D01-1702-MI-608
Altice, Judge.
Case Summary
[1] Matthew E. Koch, pro se, filed a petition against the Vanderburgh County
Treasurer (the Treasurer) to compel access to public records. The parties filed
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cross motions for summary judgment, and the trial court granted summary
judgment in favor of the Treasurer.
[2] We affirm.
Facts & Procedural History
[3] Koch is serving a thirty-year prison sentence for committing robbery,
kidnapping, and battery in 2008. His grandfather Norman W. Koch (Norman)
passed away in 2005, and Koch expected to eventually inherit through a trust
that would vest at the passing of Koch’s grandmother Pauline A. Koch
(Pauline). In March 2015, Koch learned that Pauline had died nearly five years
earlier. Koch then immediately began investigating the disposition of his
expected inheritance. He sought documents from, among others, the
Vanderburgh County Clerk, the Vanderburgh County Recorder, the
Vanderburgh County Assessor, and Old National Bank. Koch was unable to
discover any valid trust instrument under which he was a beneficiary, and his
aunt expressly wrote to him that his grandparents’ estates were handled by will
and that no trust was left for him. Yet Koch continued to believe that members
of his family were concealing and withholding a trust account from him.
[4] On December 27, 2016, from the Miami Correctional Facility, Koch mailed an
access to public records request to the Treasurer, seeking copies of any and all
inheritance tax records relating to Norman that the Treasurer possessed. In his
request, Koch noted that he was Norman’s biological grandson and that he
believed himself to be a defrauded beneficiary.
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[5] Candance Nance, a First Deputy Treasurer, received the records request on
January 3, 2017, and responded by letter the following day with a denial of the
request. In this letter to Koch, Nance first set out the law related to disclosure
of inheritance tax information. She explained that Ind. Code § 6-4.1-12-12
forbade the disclosure of any information related to inheritance tax files except
in limited instances set out in the statute. Nance noted two of the statutory
exceptions in which disclosure is allowed – (1) to the attorney listed on the
inheritance tax return and (2) to a devisee, an heir, a successor in interest, or a
surviving joint tenant of the decedent for whom an inheritance tax return was
filed or upon the receipt of a written request, to an agent or attorney of a
devisee, an heir, a successor in interest, or a surviving joint tenant of the
decedent. See I.C. § 6-4.1-12-12(a)(10), (11). After setting out the law, Nance
stated in the letter:
I have spoken with the Department of Inheritance and the Public
Access Counselor, both advised me to quote you the law. Based
on this information I cannot send you any record we maintain.
The Department of Inheritance has also informed me that you
have been in contact with them for the same information. I am
to let all correspondence go through them.
Appendix at 16.
[6] On January 20, 2017, Koch filed in the Vanderburgh Superior Court a petition
to compel access to public records. In its answer, the Treasurer asserted a
number of affirmative defenses, including that pursuant to I.C. § 6-4.1-12-12 the
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requested records are confidential and may not be produced to Koch. The
parties eventually filed cross motions for summary judgment.
[7] Included within the Treasurer’s designated evidence was Nance’s affidavit,
dated July 10, 2017. In her affidavit, Nance reiterated that the records
requested by Koch are confidential and may not be produced to him.
Moreover, in paragraph 6, Nance averred that the Treasurer’s Office does not
have any documents in its possession relative to Norman’s estate.
[8] On August 8, 2017, the trial court held a telephonic hearing regarding the
summary judgment motions. Koch has not provided us with a transcript, but
the CCS reveals that at the conclusion of the hearing, the trial court granted the
Treasurer ten days to amend its answer. The Treasurer filed an amended
answer two days later, adding “Mistake” to the list of affirmative defenses.
Appendix at 25. Koch responded with a motion to strike “materials concerning
the affirmative defense of mistake from the record.” Id. at 27. Koch argued
that the affirmative defense was not pled with the specificity as required by
Indiana Trial Rule 9(B)1 and, therefore, should be stricken. He also challenged
Nance’s affidavit to the extent that it indicated that none of the requested
documents were in the possession of the Treasurer’s Office.
1
T.R. 9(B) provides in relevant part: “In all averments of fraud or mistake, the circumstances constituting
fraud and mistake shall be specifically averred.”
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[9] The trial court held a telephonic hearing on October 26, 2017, for which we
have not been provided with a transcript. On November 20, 2017, the trial
court issued an order denying Koch’s motion to strike and taking the summary
judgment motions under advisement. Thereafter, on November 28, 2017, the
trial court issued an order summarily granting summary judgment in favor of
the Treasurer.
Discussion & Decision
[10] We begin by observing that the Treasurer has not filed an appellee’s brief. As a
result, we will not undertake the burden of developing arguments on the
Treasurer’s behalf and will reverse if Koch establishes prima facie error. See
Duty v. CIT Group/Consumer Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017).
Prima facie, in this context, means at first sight, on first appearance, or on the
face of it. Id. This standard, however, “does not relieve us of our obligation to
correctly apply the law to the facts in the record in order to determine whether
reversal is required.” Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015).
[11] On appeal, Koch argues that the trial court erred by denying his motion to
strike the newly added affirmative defense of mistake.2 Further, he argues that
2
Koch also baldly asserts that paragraph 6 of Nance’s affidavit must be stricken, but he provides no cogent
argument in this regard. Indiana Trial Rule 56(E) provides in part: “Supporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” Paragraph 6 of the affidavit
is clearly based on Nance’s personal knowledge and addresses a matter with which she is competent to
testify. Moreover, the fact to which Nance avers – that the Treasurer’s Office does not possess the requested
documents – is relevant and admissible evidence.
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even if not stricken, Nance’s original letter and her subsequent affidavit
contradict each other and present a genuine issue of material fact regarding
whether the Treasurer has possession of the requested documents.
[12] Whether the Treasurer properly amended the complaint to allege the defense of
mistake is of no moment here. The designated evidence plainly establishes that
the Treasurer does not possesses the documents sought by Koch. Indeed,
Nance averred, “the Vanderburgh County Treasurer’s Office does not have any
documents in their possession relative to the Estate of Norman Koch.”
Appendix at 15. Contrary to Koch’s assertion on appeal, the letter that Nance
originally sent to him did not indicate that the Treasurer actually possessed the
requested records. Rather, the letter simply advised Koch – a prolific filer in the
county – of the general law regarding the confidentiality and disclosure of
inheritance tax documents. Based on this law, Nance indicated that she could
not send Koch “any record we maintain.” Id. at 16.
[13] Because it is axiomatic that the Treasurer cannot produce records that it does
not possess, the trial court properly granted summary judgment in favor of the
Treasurer. See, e.g., Quirk v. Delaware County, 91 N.E.3d 1008, 1013 (Ind. Ct.
App. 2018) (summary judgment is appropriate where the designated evidence
shows there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law).
[14] Judgment affirmed.
[15] Najam, J. and Robb, J., concur.
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