text:
    Robert GRABER, Jr. and Barbara Graber, Appellants, v. ALLEN COUNTY, INDIANA BUILDING DEPARTMENT, Appellee.
    No. 02A05-1209-MI-485.
    Court of Appeals of Indiana.
    May 8, 2013.
    Ordered Published May 24, 2013.
    Rehearing Denied July 2, 2013.
    Dale W. Arnett, Winchester, IN, Attorney for Appellants.
    Carrie Hawk Gutman, Hawk Haynie Kammeyer & Chickedantz, LLP, Fort Wayne, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

Robert Graber, Jr. and Barbara Graber appeal the trial court’s dismissal of their verified complaint for review in favor of the Allen County, Indiana, Building Department (the “Building Department”). The Grabers raise one issue, which we revise and restate as whether the court erred in granting the Building Department’s motion to dismiss. We reverse and remand.

PROCEDURAL HISTORY

On April 24, 2012, the Building Commissioner (the “Commissioner”) of the Building Department issued to the Grabers an Order to Bring into Compliance or Demolish. The order provided that inspection of the building(s) identified on the property with a street address of “14903 Notestine Road” in Grabill, Indiana, was unsafe and required compliance with local ordinance and state code and ordered the Grabers to have the building brought into compliance by May 18, 2012. Appellant’s Appendix at 56. The order notified the Grabers that a hearing would be held on May 22, 2012 and was recorded in the office of the Allen County Recorder on April 27, 2012.

On May 22, 2012, an administrative hearing was held before Hearing Officer Anthony Burrus. Burrus issued a Record of Hearing and Findings of the Hearing Officer, signed May 24, 2012, affirming the order of the Commissioner.

On June 4, 2012, the Grabers filed a Verified Complaint for Review with the trial court. The complaint alleged that on May 24, 2012, the Building Department issued an order which affirmed a previous order made on April 24, 2012, and which found that a building on the Grabers’ property is a health hazard and public nuisance. The complaint stated that it attached, as Exhibit A, the Record of Hearing and Finding of Hearing Officer. The complaint requested the court to find in the Grabers’ favor and against the Building Department.

The document attached to the June 4, 2012 complaint as Exhibit A was entitled Record of Hearing and Findings of Hearing Officer and related to an action taken after a hearing on May 22, 2012, before Hearing Officer Anthony Burrus regarding an affected parcel of real estate with a street address of “14909 Notestine Rd” in Grabill, Indiana, in which Marvin and Ada Schmucker were named as having a substantial property interest. Id. at 15. The findings of fact indicated that the building(s), structure(s), and/or tract of real property was a hazard to public health and a public nuisance, and the findings included the comment: “Owner states they are exempt from local ordinance and regulations however courts have ruled differently, and therefore, Allen County local ordinance(s) and or regulations are enforceable. Therefore, owner must comply with the County’s orders of inspections and permits by June 01, 2012.” Id. at 16.

On July 9, 2012, the Grabers filed a Motion for Leave to File an Amended Verified Complaint for Review together with an Amended Verified Complaint for Review. In their motion, the Grabers indicated that the Commissioner’s order issued on April 24, 2012 had been affirmed on May 24, 2012, by Hearing Officer Anthony Burrus, that “[o]n the same date [their] counsel represented Marvin and Ada Schmucker before the same hearing officer,” and that “[inadvertently, [the Grabers’] Counsel attached the record of hearing and findings of Hearing Officer for the Schmucker case as Exhibit A to the Verified Complaint for Review. However all of the findings of fact in both cases were exactly the same.” Id. at 82. The Grabers’ motion stated that Ind. Code § 36-7-9-8 requires the findings of fact and action taken by the hearing authority to be included in the complaint and that they “have substantially complied with the spirit of the requirements for judicial review in that their petition was timely filed and there was sufficient information for the Building Department to investigate the claim.” Id. The Grabers requested leave to file their Amended Verified Complaint for Review with the correct Exhibit A in order to comply with the letter of the law pursuant to Ind. Code § 36-7-9-8. The Grabers also noted that the case management conference in the cause was not scheduled until August 20, 2012, and the Building Department would not be prejudiced in any manner if they were allowed to amend their complaint.

The document attached to the July 9, 2012 Amended Verified Complaint for Review as Exhibit A was entitled Record of Hearing and Findings of Hearing Officer and related to the action taken after a hearing on May 22, 2012, before Hearing Officer Anthony Burrus. The hearing concerned an affected parcel of real estate with a street address of “14903 Notestine Rd” in Grabill, Indiana, in which the Gra-bers were named as having a substantial property interest. Id. at 29. The findings of fact indicated, identical to those findings related to the Schmucker property, that the building(s), structure(s), and/or tract of real property was a hazard to public health and a public nuisance, and included the comment: “Owner states they are exempt from local ordinance and regulations however courts have ruled differently, and therefore, Allen County local ordinance(s) and or regulations are enforceable. Therefore, owner must comply with the County’s orders of inspections and permits by June 01, 2012.” Id. at 30.

On July 13, 2012, the Building Department filed a motion to dismiss the Grabers’ complaint under Trial Rule 12(B)(6) and, in the alternative, for summary judgment and a memorandum in support of the motion. In the memorandum, the Building Department stated that the Grabers failed to obtain any permits prior to the construction of a structure which they have identified as a meeting place for their church community which will include plumbing. An affidavit of the Commissioner attached to the memorandum stated that the Gra-bers have “placed a structure on their real estate ... which is attached to [their] home by a breeze-way,” that Robert Gra-ber “stated at the administrative hearing that this structure has plumbing and that the intended use is for gatherings of public, specifically the Amish community for holding church and other church functions,” that the Grabers “have failed to obtain the requisite Septic System Permits, Land Use Permits and Building Permits ... for the construction of the structure ...,” and that the failure to obtain permits is a violation of the Allen County Code. Id. at 47-48. The Building Department, in its memorandum, argued that the Grabers failed to properly file a request for judicial review pursuant to Ind. Code § 36-7-9-8(b), namely, the portion of the provision which provides that “[a] person requesting judicial review under this section must file a verified complaint including the findings of fact and the action taken by the hearing authority.” The Building Department argued that the Gra-bers’ verified complaint for review “attached a decision for another property and another owner,” that the complaint fails to conform to Ind. Code § 36-7-9-8(b), that “the failure to timely file the requisite verified complaint along with the findings [of] fact and the action taken by the hearing authority, deprives this Court of jurisdiction for a de novo review of the facts,” and that the Grabers’ complaint should therefore be dismissed. Id. at 41. The Building Department also argued that the Grabers’ complaint fails to assert facts which support their request to reverse the decision of the hearing officer.

On July 23, 2012, the court entered an order granting the Grabers’ July 9, 2012 Motion for Leave of Court to File an Amended Verified Complaint for Review.

On August 14, 2012, the Grabers filed a document entitled “Facts in Dispute” which stated that the following pertinent facts are genuinely in dispute: “Whether or not the barn is a private barn for the Grabers[’] exclusive use as stated in Robert Graber’s affidavit or [if] it is a ‘public church’ as the Building Department attempts to assert.” Id. at 78.

Also on August 14, 2012, the Grabers filed a response to the Building Department’s motion to dismiss and/or for summary judgment on their verified complaint and their designation of evidence. In the response, the Grabers argued that, although the findings of fact attached to their initial complaint were those of the neighboring property of Marvin and Ada Schmucker, after discovering this error they filed a motion for leave to file an amended complaint which the court granted, that courts favor having cases decided on their merits rather than on technicalities, that in this instance the findings and orders of the hearing officer were precisely the same in the Schmucker case as in the Graber case, that there could be no prejudice to the Building Department if they had the same findings and order, and that the error was merely a clerical error and was remedied. The Grabers also asserted that Ind. Code § 36 — 7—8—3(d), the “Log Cabin Rule,” applies in this case and that no permits were required, that the Building Department “is trying to twist the facts elicited at the administrative hearing by claiming the barn is ‘to be used for public church meetings’ and does not fall within the I.C. 36 — 7—8—3(d) exception,” that “[t]he building is at the Graber homestead and will only be used for ‘church’ about once a year, just as will the ‘homes’ of other families in the Church District of the Grabers,” that the building “in fact is a company shed and safely built,” and that “[tjhere is no evidence that the building is in any way a hazard to public health and in fact the building is a safe building.” Id. at 80-82. The Grabers requested the court to deny the Building Department’s motion to dismiss and to grant summary judgment in their favor. The Grabers’ designated evidence included an affidavit of Robert Graber and a letter regarding an inspection of the building by an engineer noting that the structure is sufficient to resist the intended “live, dead, snow, and wind loads.” Mat87.

On August 27, 2012, the court held a hearing on the Grabers’ motion at which the parties presented arguments. At the start of the hearing, the trial court made the following comments:

Allen County Indiana Building Department has filed its Motion to Dismiss the Verified Complaint filed in this action for judicial review asserting that, under the statute, a person must file a Verified Complaint including the findings of fact and the action taken by the hearing authority within ten days after the date when the action was taken. [The Grá-bers] admit that in filing their Verified Complaint to review the findings of fact and action taken by the hearing officer were those of the neighboring property of Marvin and Ada Schmucker. And what I have to do is follow what the law is, and the state statutes that govern a verified petition for review are specific. The Courts have no discretion in whether they are to grant leeway or somehow vary the time limits required or the content of what must be filed. So it’s my opinion that I’m bound by those statutes and that I must dismiss this case, even though it was an honest error.

Transcript at 4.

Counsel for the Grabers presented argument consistent with the arguments in the them pleadings and filings, including that courts favor deciding cases on their merits, that the findings and action taken were exactly the same in the Schmucker and Graber cases, that both cases were heard on the same day by the same hearing officer, that the error was a clerical error in the office of the Grabers’ counsel, and that the error was remedied before the Building Department filed its motion to dismiss. Counsel for the Grabers further argued that the court granted its motion for leave to file an amended complaint and that there is no way the Building Department could be prejudiced by having the neighbor’s findings and results attached to the Grabers’ petition because they were exactly the same and the Building Department knew that they were exactly the same.

The court stated that it did not believe it had any discretion in the matter and intended to grant the motion to dismiss. The court also stated that “[n]ow that leaves [the Grabers] with the choice of doing nothing, which means the building will be torn down, or seeking a building permit or whatever other kind of permit is required,” that “[t]his isn’t going to be decided on the merits,” that “even if you proceed to appeal the case, there’s no way I’m going .to be enjoining the Building Department from proceeding because, again, this isn’t on the merits,” and that “[i]t’s on whether or not the statutes were complied with in filing for a verified petition for judicial review.” Id. at 6. The court entered an order granting the Building Department’s motion to dismiss.

ISSUE

The issue is whether the trial court erred in granting the Building Department’s motion to dismiss the Grabers’ complaint for judicial review. The standard of appellate review of rulings 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.” Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.2006). We review de novo a ruling on such a motion to dismiss if the facts are not disputed or the court rules on a paper record. Id.

DISCUSSION

The Grabers contend that the court erred in dismissing their complaint as the original error was a clerical error, the original complaint was filed timely, and the Building Department could not have been, prejudiced. The Grabers argue that Ind. Trial Rule 15 allows amendment to a pleading once as a matter of course any time before a responsive pleading is served and that is exactly what they did upon the discovery of the clerical error. The Gra-bers argue that the Building Department could not have been prejudiced as the same Hearing Officer wrote the identical orders for the Schmuckers and the Gra-bers, that the findings and action actually are included with the complaint as they are identical and the caption and body of the original complaint refer to the Grabers so there is no confusion as to who is seeking judicial review, and that courts favor deciding cases on their merits rather than mere technicalities. The Grabers also assert that the Indiana Supreme Court has stated that clerical errors may be amended if done so promptly.

The Building Department maintains that the trial court has no authority to extend the time to file a verified petition for review under Ind. Code § 36 — 7—9—8(b) and that the court did not obtain jurisdiction. The Building Department also argues that the statute specifically required the Gra-bers to file a complaint which included the findings of fact and the action taken -within ten days, that the statutory language is clear and unambiguous, and that the Gra-bers failed to comply with the prerequisite for a review under the statute. The Building Department notes that on or about July 9, 2012, forty-six days after findings of fact and the action were issued, the Grabers attempted to remedy the error by filing a motion for leave to file an amended complaint, that the Grabers argued that its pleadings had substantially complied with the spirit of the requirement for judicial review, that substantial compliance is not the standard for the court to obtain subject matter jurisdiction of an appeal, and that the statute sets forth the content of what the petitioner must file with the trial court. Further, the Building Department contends that there is no statutory authority to extend the time for filing the verified petition which must include the findings and that the trial rules cannot work to resurrect an untimely petition for review. In their reply brief, the Grabers argue that their complaint was timely filed and that the Building Department glosses over the fact that the findings and action in the Schmucker case are exactly the same as those in the Graber case.

Ind. Code § 36-7-9-8 provides:

(a) An action taken under section 7(d) or 7(e) of this chapter is subject to review by the circuit or superior court of the county in which the unsafe premises are located, on request of:
(1) any person who has a substantial property interest in the unsafe premises; or
(2) any person to whom that order was issued.
(b) A person requesting judicial review under this section must file a verified complaint including the findings of fact and the action taken by the hearing authority. The complaint must be filed within ten (10) days after the date when the action was taken.
(c) An appeal under this section is an action de novo. The court may affirm, modify, or reverse the action taken by the hearing authority.

(Emphasis added).

We initially note that this case does not involve subject matter jurisdiction or personal jurisdiction. The Indiana Supreme Court clarified jurisdiction concepts in K.S. v. State, 849 N.E.2d 538 (Ind.2006), holding:

Like the rest of the nation’s courts, Indiana trial courts possess two kinds of “jurisdiction.” Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. Personal jurisdiction requires that appropriate process be effected over the parties.
Where these two exist, a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack. Other phrases recently common to Indiana practice, like “jurisdiction over a particular case,” confuse actual jurisdiction with legal error, and we will be better off ceasing such characterizations.

849 N.E.2d at 540. See Packard v. Shoopman, 852 N.E.2d 927 (Ind.2006) (holding that statutory deadlines for filing a petition for judicial review in the Tax Court referred to what was previously known as “jurisdiction over a particular case”); Druids-Grove, 847 N.E.2d at 926 (“The timing of filing the agency record implicates neither the subject matter jurisdiction of the Tax Court nor personal jurisdiction over the parties. Rather, it is jurisdictional only in the sense that it is a statutory prerequisite to the docketing of an appeal in the Tax Court.”). Regardless of whether the verified complaint including the findings of fact and the action taken by the hearing authority was timely filed in this case, the trial court had subject matter jurisdiction to consider a petition for judicial review challenging a final agency decision. See Izaak Walton League of Am., Inc. v. DeKalb Cnty. Surveyor’s Off., 850 N.E.2d 957, 962 (Ind.Ct.App.2006) (noting that “[rjegardless of whether the agency record was timely filed in this case, the trial court had subject matter jurisdiction to consider a petition for judicial review challenging a final agency decision”), reh’g denied, trans. denied.

The crux of the matter in this case is whether the Grabers’ initial June 4, 2012 complaint for review, notwithstanding the fact that the findings related to the Schmucker’s property were inadvertently attached, constituted an adequate petition for judicial review of a final agency action where the trial court subsequently granted the Grabers’ July 9, 2012 motion to amend their complaint for review which attached the correct findings of the hearing officer related to their property.

Under Ind. Code § 36-7-9-8, the Gra-bers as the petitioners had the duty to file a verified complaint within ten days after the date when the agency action was taken, and the Building Department has not asserted that the Grabers’ initial June 4, 2012 complaint for review was untimely. The substance of the Building Department’s argument is that the Grabers mistakenly attached the incorrect agency findings, that the Grabers were not permitted to amend the complaint to attach the correct findings, and thus that the trial court was required to dismiss their request for judicial review. The Building Department does not point to authority, other than Ind. Code § 36-7-9-8(b) itself, for the proposition that the Grabers were not permitted to request to amend their initial complaint or petition for judicial review under Ind. Code § 36-7-9-8(b). While the subsection does not specifically provide that a petitioner may amend a complaint, it also does not specifically provide that a petitioner is precluded from doing so, and we note that the Indiana Rules of Trial Procedure provide that a party may amend pleadings by leave of court or once as a matter of course under certain circumstances. We observe that the initial complaint referred to the April 24 and May 24, 2012 orders related to the Grabers’ property issued by the Commissioner and the Building Department, respectively, but that the complaint attached the agency action taken by the Building Department in connection with the property of the Grabers’ neighbors, the Schmuckers. On July 9, 2012, the Grabers filed their motion for leave to file an amended complaint which attached the correct findings and final agency action, noting that the Grabers’ counsel inadvertently attached the findings of a case related to the Schmuckers, which had been heard on the same day as the Grabers’ case by the same hearing officer, and that all of the findings of fact in both cases were identical. On July 23, 2012, the trial court granted the Grabers’ July 9, 2012 motion to file an amended complaint.

Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty [30] days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within twenty [20] days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

Despite the fact that the Grabers amended their complaint to include the correct agency findings and action, which was permitted by the trial court, the Building Department asserts that the language of Ind. Code § 36 — 7—9—8(b) precludes the Grabers from obtaining judicial review because their original complaint attached findings related to the Schmuckers’ case. In the case of Izaak Walton, this court addressed the issue of whether an agency record that the petitioner filed constituted an adequate record for purposes of a petition for judicial review of an agency action. 850 N.E.2d at 963. Although the opinion addressed a different agency action and a requirement of filing an agency record rather than the inclusion of the findings and agency action in a complaint, the discussion of the principles of statutory interpretation and judicial review of agency actions provide some guidance here. The court noted that, in following principles of statutory interpretation, we must determine, give effect to, and implement the legislative intent underlying the statute and construe it in such a way as to prevent absurdity and hardship and to favor public convenience, that because statutes are examined as a whole, it is often necessary to avoid excessive reliance on a strict literal meaning of the words or phrases in the statute, and that we must consider the objects and purposes of the statute as well as the effects and repercussions of such an interpretation. Id. at 964-965. The court further noted: “We think the purposes of the statutes governing what constitutes an adequate agency record for purposes of a petition for judicial review are clear. The record must include all that is necessary in order for the reviewing court to accurately assess the challenged agency action.” Id. at 965. The court held that the petitioner had submitted an adequate agency record even though several documents were excluded where those documents concerned matters not relevant to the issue, and the court reversed the trial court’s dismissal of the petition for judicial review and remanded for further proceedings. Id. at 965-968.

In this case, we note that the purpose of the requirement in subsection (b) of Ind. Code § 86-7-9-8 that a verified complaint include the findings of fact and the action taken by the hearing authority is that the relevant agency action and the reasoning of the hearing authority, if applicable, are before the reviewing court. In construing the statute in such a way as to prevent absurdity and hardship and to favor public convenience and in considering the effects and repercussions of our interpretation, we cannot say that the inadvertent inclusion or attachment of the hearing officer’s findings related to the Schmuckers’ property, which were identical to the findings related to the Grabers’ property, to the original complaint precludes the Grabers from obtaining judicial review of the hearing officer’s action, particularly in light of the fact that the Grabers amended their complaint with the approval of the trial court and there was no prejudice to the Building Department as a result of filing the amended complaint.

Based upon the record and under the circumstances, we conclude that the trial court erred in granting the Building Department’s motion to dismiss. See Izaak Walton, 850 N.E.2d at 968. Accordingly, we reverse the dismissal of the Grabers’ complaint and remand for further proceedings on their amended verified complaint for review.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of the motion to dismiss and remand for further proceedings.

Reversed and remanded.

RILEY, J., and BRADFORD, J., concur.

      . Ind. Code § 36 — 7—8—3(d) provides: "An ordinance adopted under this section does not apply to private homes that are built by individuals and used for their own occupancy.”

      . Ind. Trial Rule 15(A) provides:


source: Caselaw Access Project

license: Public Domain

text:
    Victor PONCE, Appellant, v. STATE of Indiana, Appellee.
    No. 20A04-1208-PC-396.
    Court of Appeals of Indiana.
    May 10, 2013.
   ORDER

Appellee, State of Indiana, by counsel, filed a Motion To Publish Memorandum Decision.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. The Appellee’s Motion To Publish Memorandum Decision is GRANTED and this Court’s opinion heretofore handed down in this cause on March 7, 2013, marked Memorandum Decision, Not for Publication is now ORDERED PUBLISHED.
2. The Clerk of this Court is directed to send copies of said opinion together with copies of this Order to the West Publishing Company and to all other services to which published opinions are normally sent.

KIRSCH, MATHIAS, CRONE, JJ„ concur.


author: BARNES, Judge.

text:
    Gersh ZAVODNIK, Appellant-Plaintiff, v. Brian RICHARDS and, njgolfman.com a/k/a Savva’s Golf Enterprises a/k/a progolfjerseycity@yahoo.com and, Steve Panayiotov, a/k/a Steve Panayiotou, a/k/a Savva Panayiotov a/k/a Saava Panayiotou, Appellees-Defendants, and Gersh Zavodnik, Appellant-Plaintiff, v. Giselle Guzman, Appellee-Defendant.
    No. 49A02-1209-CC-750.
    Court of Appeals of Indiana.
    May 22, 2013.

      Mark S. O’Hara, Hostetter & O’Hara, Brownsburg, IN, Attorney for Appellant.
    Roy W. Harris, Biesecker Dutkanych & Macer, LLC, Evansville, IN, Attorney for Appellee, Giselle Guzman.
   OPINION

BARNES, Judge.

Gersh Zavodnik petitions for rehearing following our decision in Zavodnik v. Richards, 984 N.E.2d 699 (Ind.Ct.App.2013). With the following clarifications, we reaffirm our decision in all respects.

In our original decision, we held:

[Wjhen a trial court has involuntarily dismissed a case without prejudice pursuant to Trial Rule 41(E), subsection (F) of that rule ascribes to the dismissing trial court the discretion to consider whether a complaint should be reinstated. Subsection (E) likewise provides options to a trial court to permit a complaint to proceed, despite rules violations by a plaintiff, in order to control its own docket and courtroom. We also presume that the Indiana Supreme Court, in drafting Trial Rule 41, did not intend to place a nullity in the rule by adding subsection (F)’s explicit procedure for how to go about reinstatement of a complaint dismissed without prejudice. Za-vodnik’s position, that such complaints can be re-filed in a different court without following the reinstatement procedure, would render that provision meaningless. By re-filing complaints before Judge Dreyer that were substantially similar, if not identical, to complaints that Judge Oakes had already dismissed, Zavodnik was improperly attempting to circumvent Judge Oakes’s authority and discretion to decide whether Zavodnik had good cause to reinstate his original complaint(s). Judge Dreyer apparently recognized this and acted properly in dismissing the re-filed complaints, which dismissal served the interests of fairness to litigants, judicial comity, and judicial efficiency.

Zavodnik, 984 N.E.2d at 703. We then concluded, “Zavodnik’s only remedy if he wishes to continue to pursue legal action against those parties is to obtain reinstatement of his original complaints before Judge Oakes.” Id. at 703-04.

Zavodnik claims we overlooked two pertinent facts in reaching our holding. First, he states that, before filing the second set of lawsuits, he had already attempted to reinstate the original lawsuits but was refused permission to do so. We noted this attempt to reinstate and affirmed the trial court’s refusal to reinstate in Zavodnik v. Gehrt, No. 49A02-1105-CT-393 slip op. p. 7, n. 17, 2012 WL 697152 (Mar. 1, 2012). Although we did not, in our original opinion in the present appeal, expressly note Zavodnik’s prior attempt to reinstate, we did expressly state that Zavodnik must obtain reinstatement of his original complaints if he wishes to continue pursuing his legal claims against Giselle Guzman, Brian Richards, and Steve Panayiotou, not merely that he must seek reinstatement. Again, we emphasize that if Zavodnik is unsuccessful in having his original complaints reinstated, he may not circumvent that ruling by filing entirely new complaints raising identical legal and factual issues as the original complaints. The fact that Zavodnik has already unsuccessfully attempted to reinstate his original complaints has no legal relevance to our analysis.

Second, Zavodnik claims that he cannot seek reinstatement of his original complaints by Judge Oakes because Judge Oakes has recused himself in all matters involving Zavodnik. The only indication of such recusal in the record before us is that one of Zavodnik’s re-filed complaints was originally before Judge Oakes, but that Judge Oakes recused himself from the case upon Zavodnik’s motion and the case was transferred to Judge Dreyer. We cannot discern from the record that Judge Oakes has or will recuse himself from any attempts by Zavodnik to reinstate his original complaints. Even if Judge Oakes were to do so, it still would be up to the judge replacing him to determine whether to permit reinstatement of the original complaints within the parameters of Indiana Trial Rule 41(F).

We, therefore, clarify that although Za-vodnik must obtain reinstatement of his original complaints under their original cause numbers, such reinstatement could be ordered by a judge other than Judge Oakes, if Judge Oakes indeed were to re-cuse himself from any future attempts at reinstatement. In all other respects, we reaffirm our original decision.

BAKER, J., and RILEY, J., concur.

      . The CCS indicates only that the complaint against Guzman originally was filed before judge "OA123” and was then transferred to judge "DR973.” App. pp. 8-9. We will assume that these abbreviations refer to Judge Oakes and Judge Dreyer. The other complaint against Richards and Panayiotou was originally filed in Judge Dreyer’s courtroom.


author: ROBB, Chief Judge.

text:
    CITY OF CARMEL, through its REDEVELOPMENT COMMISSION, Appellant/Defendant/Cross-Claim Defendant, v. CRIDER & CRIDER, INC., Appellee/Plaintiff, Hagerman Construction Corporation, Appellee/Defendant/Cross-Claimant.
    No. 02A04-1208-PL-416.
    Court of Appeals of Indiana.
    May 23, 2013.

      Thomas J. Costakis, Catharine E. Saba-tine, Krieg Devault LLP, Indianapolis, IN, Robert S. Schein, Krieg Devault LLP, Carmel, IN, Attorneys for Appellant.
    Thomas Pastore, Thomas Pastore, P.C., Indianapolis, IN, Attorney for Appellee, Crider & Crider, Inc.
    Steven J. Strawbridge, Julia Blackwell Gelinas, Lucy R. Dollens, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellee, Hagerman Construction Corporation.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

City of Carmel, through its Redevelopment Commission, (“CRC”) brings this appeal from the trial court’s denial of its motion to transfer venue in the lawsuit filed by Crider & Crider, Inc., (“Crider”) against it and Hagerman Construction Corporation (“Hagerman”) in Allen County. The sole issue for our review is: whether the trial court abused its discretion by denying CRC’s motion to transfer venue from Allen County to Hamilton County. Concluding that Hamilton County is the appropriate venue, we reverse.

Facts and Procedural History

CRC hired Hagerman as the prime contractor to perform limestone and concrete work during the construction of the Car-mel Performing Arts Center in the City of Carmel. CRC and Hagerman entered into two agreements. Section 5.12 of the agreements read, in part, as follows:

The parties ... agree that, in the event a lawsuit is filed hereunder, they waive any rights to a jury trial they may have, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.

Appellant’s Appendix at 154. Soon after, Hagerman hired Crider as a subcontractor to perform certain excavation work. Hag-erman and Crider did not reduce their agreement to a final writing.

On October 17, 2011, Crider filed a complaint against Hagerman and CRC, alleging breach of contract and unjust enrichment. Hagerman filed a cross-claim against CRC, alleging that CRC should be liable for any damages recovered by Cri-der on its complaint against Hagerman. CRC later filed a motion to transfer venue, arguing that Hamilton County was the proper venue due to the venue selection clause in the contractual agreement between it and Hagerman, and that the clause applied to the entire matter pursuant to Trial Rule 21. Both Crider and Hagerman opposed the motion, asserting that Allen County was a preferred venue under Trial Rule 75. CRC filed a consolidated reply, and the trial court conducted a hearing on the motion. The court denied the motion in an order stating the following:

(1) This action was properly filed by Plaintiff [Crider] in Allen County, as Allen County is a county of “preferred venue” pursuant to Trial Rule 75(A)(1) and (4).
(2) The venue provision of the contract between Defendant [Hagerman] and Defendant [CRC] does not apply to Plaintiff [Crider] pursuant to Trial Rule 75(A)(6).
(3) Trial Rule 21(B) does not apply as [CRC] was an originally-named defendant herein.

Appellant’s App. at 17. CRC filed a motion to reconsider, which the trial court denied. CRC now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

We review a trial court’s order on a motion to change venue for an abuse of discretion. Phillips v. Scalf, 778 N.E.2d 480, 482 (Ind.Ct.App.2002). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the trial court misinterpreted the law. Id.

II. Proper Venue

Parties are free to negotiate and include venue selection clauses in their contracts. These clauses are enforceable if they are reasonable and just under the circumstances, and if there is no evidence of fraud or overreaching such that the agreeing party would be deprived of a day in court. Linky v. Midwest Midrange Sys., Inc., 799 N.E.2d 55, 57 (Ind.Ct.App.2003). Here, CRC and Hagerman entered into an agreement establishing Hamilton County as the proper venue in the case of any dispute between them. There is no claim that this venue selection clause is not reasonable and just or that it is a result of fraud or overreaching. The issue is whether the venue selection clause in the agreement between CRC and Hagerman, the two co-defendants, applies in the case brought by Crider. We hold that, under the circumstances, it does.

While the preferred venue analysis in Trial Rule 75 would normally govern a case where the plaintiff has not contractually agreed to a particular venue, Trial Rule 75 is trumped in this case by Trial Rule 21(B). After Crider filed its complaint against CRC and Hagerman, Hager-man filed a cross-claim against CRC. Due to the venue selection clause between Hag-erman and CRC, it is clear that venue lies in Hamilton County as to the cross-claim between them. Trial Rule 21(B) provides that a “court shall have venue and authority over all persons or claims required to be joined or permissively joined, impleaded, or included by intervention, interpleader, counterclaim or cross-claim.... ” The trial court found that Trial Rule 21(B) does not apply to CRC because it was an originally-named defendant. However, the purpose of Trial Rule 21(B) is to conserve judicial recourses and promote expeditious litigation. Ind. Lumbermens Mut. Ins. Co. v. Am. Log Homes, Inc., 774 N.E.2d 603, 606 (Ind.Ct.App.2002). All of the parties here agree that the original complaint and the cross-claim are “inextricably intertwined” and should be decided together. Brief of Appellees at 16. Thus, Hamilton County is the appropriate venue for the entire matter. See Linky, 799 N.E.2d at 57-58 (holding that venue in Marion County was proper as to the defendant due to a venue selection clause in an agreement between the plaintiff and another defendant because of the overriding policy of conserving judicial resources and because all of the parties would be subject to joinder under Trial Rule 21(B) and “[t]he sequence of the inclusion of the defendants in this action does not change the result”). The trial court abused its discretion by denying CRC’s motion to transfer venue.

Conclusion

The appropriate venue in this case is Hamilton County by virtue of Trial Rule 21(B). Thus, the trial court’s order denying CRC’s motion to transfer venue from Allen County to Hamilton County is reversed.

Reversed.

FRIEDLANDER, J., and CRONE, J., concur.

      . The appellees argue that even if Hamilton County is the appropriate county, CRC waived this issue by filing a jury demand prior to filing a motion to transfer venue. We disagree.
      The appellees first note that the same contractual provision that sets forth Hamilton County as the appropriate venue also includes a waiver of a right to a jury trial. We note that CRC admitted at the hearing on the motion to transfer venue that its jury demand was a violation of the contract and that it was willing to withdraw it. Moreover, the appel-lees cannot base their argument of waiver on the same contractual provision they claim does not apply to Crider. See, e.g., TWH, Inc. v. Binford, 898 N.E.2d 451, 454 (Ind.Ct.App.2008) (finding that the co-purchasers "cannot both seek affirmative relief from the transaction and disavow the arbitration provision in the purchase agreement”).
      The appellees also argue that by filing a demand for a jury trial with the trial court in Allen County, CRC sought affirmative relief from the trial court and thus waived its right to transfer venue or was estopped from raising this issue with the court. While the ap-pellees cite numerous cases to support this argument, those cases deal with personal jurisdiction. Venue and personal jurisdiction are not the same. The issue of improper venue must be raised in a responsive pleading as an affirmative defense or must be raised by motion prior to the filing of a pleading. Ind. Trial Rule 12(B)(3). Here, CRC filed a motion to transfer venue prior to the filing of a pleading. A jury demand is not a Rule 12(B) motion nor is it a responsive pleading, and thus did not constitute a waiver of venue. See Shanklin v. Shireman, 659 N.E.2d 640, 644 (Ind.Ct.App.1995) (holding that a "motion for change of judge is neither a Rule 12(B) motion requiring consolidation of defenses under Rule 12(G) nor a responsive pleading” and, thus, did not constitute the waiver of a right to transfer venue).


author: BAKER, Judge.

text:
    Paul HASSFURTHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 26A01-1208-CR-350.
    Court of Appeals of Indiana.
    May 24, 2013.

      Mark A. Foster, Foster, O’Daniel, Ham-bidge & Lynch, LLP, Evansville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

In this case, the appellant-defendant Paul Hassfurther appeals the trial court’s denial of his petition for judicial review that involved his refusal to take a chemical test for intoxication. Hassfurther argues that the arresting officer lacked probable cause to believe that he was operating a vehicle while intoxicated. Hassfurther further maintains that the evidence was insufficient to support the trial court’s determination that he knowingly refused to take the chemical test because he was not properly advised of the consequences of his refusal to take such a test.

The evidence established that a citizen informant called 911, identified herself, and reported that she had followed a suspected drunk driver, who was later identified as Hassfurther, operating a Toyota truck with the logo of a fox on the back of it, to a local gas station. A police officer approached Hassfurther in the store and saw him leaning on the counter. Hass-further smelled strongly of alcohol, his speech was slurred, and his eyes were red. This evidence, coupled with Hassfurther’s admission to the police officer that he had been drinking and was the driver of the Toyota, established probable cause that Hassfurther had been operating the vehicle while intoxicated.

The evidence was also sufficient to establish that Hassfurther knowingly refused to take a chemical test for intoxication when the police officer testified that he advised Hassfurther under the implied consent law that a two-year driver’s license suspension would result in light of a prior conviction for driving while intoxicated if he refused to take a chemical test for intoxication. Thus, we conclude that the trial court properly denied Hassfurther’s petition for judicial review.

FACTS

On July 15, 2011, Lieutenant Timothy Gaines, an officer with the Oakland City Police Department, was dispatched to the Shell Mart in Gibson County “in reference to a possible drunk driver.” Tr. p. 6. Bonita Walton had telephoned the police department’s dispatcher and reported that she had followed a Toyota Tundra truck to the local Shell Mart where she observed a male exit the vehicle and enter the store. Walton told the dispatcher that the vehicle had a logo of a fox on the back of it. Walton also described the driver of the truck as a white male with dark hair.

At approximately 6:00 a.m., Lieutenant Gaines drove into the Shell Mart and observed a vehicle matching Walton’s description. Lieutenant Gaines ran the license plate and walked inside the store to make contact with the driver, who was subsequently identified as Hassfurther. Lieutenant Gaines approached Hassfurther and saw him “leaning, almost laying,” on the store’s checkout counter. Tr. p. 8. Lieutenant Gaines asked Hassfurther if he was driving the Toyota Tundra that was parked outside. Hassfurther acknowledged that he had been driving that vehicle and Lieutenant Gaines noticed a strong odor of alcohol on Hassfurther’s breath. Lieutenant Gaines also determined that Hassfurther’s speech was slurred and his eyes were red. Hassfurther admitted to Lieutenant Gaines that he “had been drinking the night before.” Id.

Lieutenant Gaines asked Hassfurther if he would submit to a portable breath test (PBT). Hassfurther refused, and Lieutenant Gaines read to Hassfurther from an implied consent card, which provided:

Implied consent warning. I have probable cause to believe you’ve operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test and inform you that your refusal to submit to a chemical test will result in the suspension of your driving privileges for one year. Will you now take the chemical test?

Tr. p. 10, 19-20. Hassfurther again refused. Even though Hassfurther admitted to Lieutenant Gaines that he had been driving the vehicle, after Lieutenant Gaines again read from the implied consent card and stated that he believed that Hassfurther had been driving, Hassfurther responded, “well, you didn’t see me driving.” Id. at 10. Hassfurther then stated that he would take a PBT for a public intoxication charges but not for driving while intoxicated. Lieutenant Gaines explained the implied consent law and told Hassfurther that refusing to take the test' would result in an automatic suspension of his driver’s license. At that point, Hass-further agreed to take a PBT, which detected the presence of alcohol.

Lieutenant Gaines handcuffed Hass-further and transported him to the Gibson County Jail. Hassfurther told Lieutenant Gaines that someone could travel to the Shell Mart and remove his truck from the premises.

After Lieutenant Gaines had taken Hassfurther to the booking room at the jail, Hassfurther was again informed of the contents of the implied consent card. Lieutenant Gaines also advised Hassfurther at that time that refusal along with a prior conviction for driving while intoxicated would result in a two-year license suspension. Hassfurther again informed the officers that he would take a chemical test for public intoxication but not for operating a vehicle while intoxicated. Lieutenant Gaines told Hassfurther that he was being charged with operating a vehicle while intoxicated, at which point Hassfurther stated that he “was not taking any test.” Tr. p. 13.

The State charged Hassfurther with operating a vehicle while intoxicated, and it further alleged that Hassfurther knowingly refused to take a chemical test for intoxication. On July 27, 2011, the trial court contacted the Bureau of Motor Vehicles (BMV) and notified it of Hassfurther’s probable cause license suspension. Thereafter, Hassfurther filed a petition for judicial review, alleging that Lieutenant Gaines did not have probable cause to believe that Hassfurther had operated a vehicle while intoxicated when Lieutenant Gaines offered him a chemical test for intoxication, that he was not properly advised of his implied consent rights, and that he did not knowingly refuse the chemical test for intoxication.

Following a hearing on the petition, the trial court denied Hassfurther’s request, determining that Lieutenant Gaines had probable cause to believe that Hassfurther operated a vehicle while intoxicated, and that the implied consent advisement was proper to support a finding that Hass-further knowingly refused to take the chemical test. Hassfurther now appeals the denial of his petition for judicial review.

DISCUSSION AND DECISION

I. Probable Cause

Hassfurther contends that the evidence was insufficient to support the trial court’s finding that Lieutenant Gaines had probable cause to believe that Hassfurther was operating a vehicle while intoxicated. Specifically, Hassfurther argues that his petition for judicial review should have been granted because Lieutenant Gaines did not see him driving and Walton’s “information lacked sufficient specificity to be considered credible.” Appellant’s Br. p. 4.

In addressing Hassfurther’s contentions, we initially observe that Indiana Code section 9-30-6-8 provides that

(a) Whenever a judicial officer has determined that there was probable cause to believe that a person has violated IC 9-30-5, IC 35-46-9, or IC 14-15-8 (before its repeal), the clerk of the court shall forward:
(1) a copy of the affidavit; and
(2) a bureau certificate as described in section 16 of this chapter; to the bureau.
(b) The probable cause affidavit required under section 7(b)(2) of this chapter must do the following:
(1) Set forth the grounds for the arresting officer’s belief that there was probable cause that the arrested person was operating a vehicle in violation of IC 9-30-5....
(2) State that the person was arrested for a violation of IC 9-30-5 ....
(3) State whether the person:
(A) refused to submit to a chemical test when offered; or
(B) submitted to a chemical test that resulted in prima facie evidence that the person was intoxicated.
(4)Be sworn to by the arresting officer.

Our review of the trial court’s judgment denying a defendant’s petition for judicial review of a chemical breath test refusal is limited. Specifically, we may determine whether the arresting law enforcement officer had probable cause to believe that the individual was operating a vehicle while intoxicated, and whether the driver refused to submit to a chemical test offered by a law enforcement officer after being informed of the consequences of such a refusal. Upchurch v. State, 839 N.E.2d 1218, 1220 (Ind.Ct.App.2005). In doing so, we will not reweigh the evidence or judge the credibility of the witnesses, and we will consider only the evidence favorable to the trial court’s decision. Id.

A law enforcement officer has probable cause to offer a chemical test for intoxication when the officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe that the crime of operating a vehicle while intoxicated has been committed. Gibson v. State, 518 N.E.2d 1132, 1136 (Ind.Ct.App.1988); I.C. § 9-30-6-2(a). We have previously determined that “[o]b-jectively observed clear indications of intoxication include dilated pupils, bloodshot eyes, glassy eyes, and the odor of alcohol on the person’s breath.” Frensemeier v. State, 849 N.E.2d 157, 162 (Ind.Ct.App.2006). Probable cause requires only the probability that criminal activity has occurred. Jellison v. State, 656 N.E.2d 532, 534 (Ind.Ct.App.1995).

In instances that involve a concerned citizen’s report of a possible drunk driver, we have held:

[W]hen an officer receives a dispatcher’s message, he has no reason to question the source or credibility. Too, the circumstances suggest urgency and a need for immediate action on the part of the officer. Reasonableness of the investigative stop should be given the utmost scrutiny by the trial court.

Bogetti v. State, 723 N.E.2d 876, 880 (Ind.Ct.App.2000).

As discussed above, the evidence established that Lieutenant Gaines responded to a dispatch of a possible drunk driver who was operating a Toyota Tundra with an emblem of a fox on the back of the vehicle. Tr. p. 6-7. Walton identified herself to the dispatcher, described the truck and the driver, and reported that she followed the vehicle to the Shell Mart. Walton also reported that she observed the driver walk into the Shell Mart. Id.

When Lieutenant Gaines arrived at the Shell Mart, he noticed a Toyota Tundra truck parked in the lot that matched Walton’s description. Id. at 7, 8. No other vehicles in the lot fit that description. Thus, Walton’s information that the truck was driven to that location was corroborated and there was, therefore, indication that the remaining information in her report was reliable and credible. See Lampkins v. State, 682 N.E.2d 1268, 1271-72 (Ind.1997) (observing that a tip was reliable when police officers were able to identify a vehicle that matched the description that an informant had provided them), modified on other grounds, 685 N.E.2d 698 (Ind.1997).

When Lieutenant Gaines encountered Hassfurther at the store, Hassfurther admitted that he was the driver of the Toyota Tundra. Tr. p. 8. Hassfurther also told Lieutenant Gaines that he “had been drinking the night before.” Id. Lieutenant Gaines noticed that Hassfurther’s speech was slurred, he smelled strongly of alcohol, and had bloodshot eyes.

In sum, the information that the dispatcher received from Walton, Lieutenant Gaines’s observations of the vehicle and Hassfurther’s demeanor at the Shell Mart, and Hassfurther’s admissions, were sufficient to establish that Lieutenant Gaines had probable cause to believe that Hassfurther was operating the vehicle while intoxicated. Hence, there was also probable cause for Lieutenant Gaines to offer Hassfurther a chemical test for intoxication. As a result, Hassfurther’s challenges to the determination of probable cause fail.

II. Implied Consent

Hassfurther next argues that the trial court erroneously determined that he knowingly refused to take the chemical test in accordance with the implied consent laws. More particularly, Hassfurther argues that he did not “knowingly” refuse to take a chemical test for intoxication because he was not advised that his driver’s license would be suspended for two years if he did not agree to take such a test. Appellant’s Br. p. 6.

We first note that Indiana Code section 9-30-6-7(a) provides that “[i]f a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person’s driving privileges.”

Although this statute does not specify the length of time of the suspension, Indiana Code section 9-30-6-9 states:

(b) If the affidavit under section 8(b) [9-30-6-8(b) ] of this chapter states that a person refused to submit to a chemical test, the bureau shall suspend the driving privileges of the person:
(1) for:
(A) one (1) year; or
(B) if the person has at least one
(1) previous conviction for operating while intoxicated, two (2) years; or
(1) until the suspension is ordered terminated under IC 9-30-5.

In State v. Huber, 540 N.E.2d 140, 141 (Ind.Ct.App.1989), a panel of this court determined that a police officer is required to advise a defendant of the consequences of refusing to submit to a chemical test before the refusal to take the test will result in a suspension of driving privileges. In Huber, we affirmed the trial court’s removal of a license suspension from the defendant’s driving record based bn the refusal to take a breath test because the police officer had informed the defendant that his driver’s license “may,” rather than “shall,” be suspended for one year if he refused to take the test. Id,.; see also Vetor v. State, 688 N.E.2d 1327, 1328 (Ind.Ct.App.1997) (holding that if an individual was not advised that his or her driver’s license would be suspended if a chemical test for intoxication was refused, there was no valid implied consent warning and the license could not be suspended).

In this case, because Hassfurther has a prior conviction for operating a vehicle while intoxicated, Indiana Code section 9-30-6-9(b) makes it clear that Hassfurther’s license would be suspended for two years rather than one. That said, while Hassfurther maintains that his refusal to take the breath test was not knowing because the advisements on the implied consent card contained no information about a two-year suspension in light of a prior conviction, Lieutenant Gaines testified at the hearing that he did, in fact, advise Hassfurther of that consequence. Tr. p. 20. Thus, the evidence when viewed in a light most favorable to the judgment, demonstrates that Hassfurther has failed to show that he was not adequately informed about the license suspension if he refused a chemical test. As a result, the trial court properly denied Hassfurther’s petition for judicial review.

The judgment of the trial court is affirmed.

RILEY, J., and BAILEY, J., concur.

      . We heard oral argument on April 18, 2013, in the courtroom of the Indiana Supreme Court. We would like to thank counsel for their presentations and the Indiana University Robert H. McKinney School of Law LLM students who attended the argument for their presence and respectful demeanor. Additionally, we want to express our appreciation to the administration, technology support, and staff of the Indiana Supreme Court for their assistance.

      . Defense counsel stated at oral argument that the caller reported to the police dispatcher that she observed Hassfurther driving "erratically.”

      . As an aside, we note that because the evidence established that Lieutenant Gaines advised Hassfurther of a two-year suspension if he refused to take the chemical test, we need not address Hassfurther’s contention that he was misled or misinformed about the length of his suspension even though the two-year provision was not set forth on the implied consent card. Moreover, the rule in Huber suggests only that a defendant must be informed of the consequence that a refusal will result in a suspension. 540 N.E.2d at 142. And there is no express statutory requirement that law enforcement officials must inform a defendant that a refusal will result in a two-year suspension if he or she has a prior conviction for operating a vehicle while intoxicated. I.C. § 9-30-6-9. Nonetheless, these circumstances suggest that it may well be the better practice for police departments to include the two-year suspension provision on the implied consent card.


author: DARDEN, Senior Judge.

text:
    Dean Eric BLANCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 47A01-1209-CR-424.
    Court of Appeals of Indiana.
    May 30, 2013.

      Dean E. Blanck, Indianapolis, IN, Appellant pro se.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Dean Blanck appeals the trial court’s denial of his petitions for permission to file a belated notice of appeal and for appointment of appellate counsel. We affirm.

ISSUE

Blanck presents two issues, which we restate as one: whether the trial court erred by denying Blanck’s petitions for permission to file a belated notice of appeal and for appointment of appellate counsel.

FACTS AND PROCEDURAL HISTORY

In June 2011, Blanck was charged with operating a vehicle while intoxicated, a Class D felony, Ind.Code § 9-30-5-3 (2008); driving while suspended, a Class A misdemeanor, Ind.Code § 9-24-19-2 (2000); and being a habitual substance offender, a Class A misdemeanor, Ind.Code § 35-50-2-10 (2006). On December 20, 2011, Blanck pleaded guilty to the charge of operating a vehicle while intoxicated as a Class D felony and was sentenced to three years to be served on electronic monitoring, all pursuant to a written plea agreement. The plea agreement also provided for the suspension of Blanck’s license and for the State’s dismissal of the charges of driving while suspended and being a habitual substance offender.

On July 20, 2012, Blanck filed with the trial court a petition for permission to file a belated notice of appeal and a petition for appointment of appellate counsel to pursue proceedings under Indiana Post>Conviction Rule 2. Although the trial court initially granted Blanck’s requests on August 15, 2012, it subsequently entered an order denying Blanck’s requests just a few days later on August 21, 2012. It is from this order of denial that Blanck now appeals.

DISCUSSION AND DECISION

Blanck contends the trial court erred by denying his petitions for permission to file a belated notice of appeal and for appointment of appellate counsel. To support his argument, he claims that his plea agreement was an “open plea” such that he has a right to a belated direct appeal.

A trial court’s ruling on a petition for permission to seek relief under Post-Conviction Rule 2 should be affirmed unless the ruling is based on an error of law or a clearly erroneous factual determination, typically referred to as an abuse of discretion. Bosley v. State, 871 N.E.2d 999, 1002 (Ind.Ct.App.2007).

Indiana Post-Conviction Rule 2 states, in pertinent part:

An “eligible defendant” for purposes of this Rule is a defendant who, but for the defendant’s failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.

Thus, to qualify for the belated filings permitted by Post-Conviction Rule 2, a defendant must first have the right to challenge on direct appeal his conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal. See P-C.R. 2.

Where a plea agreement includes a defendant’s agreement to a specific sentence, the defendant may not challenge the sentence by means of a timely or belated direct appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind.2008). However, where the guilty plea is an “open plea,” that is, a plea agreement under which the trial court exercised sentencing discretion, direct appeal challenges to sentences have been permitted. Id.

Here, Blanck attempts to read sections (A) and (B) of his written plea agreement as if they are in unison when they are clearly separate sections. Section (A), which was left blank in Blanck’s plea agreement, is for an open plea and states: “Open sentencing except that the executed portion of the sentence shall not exceed _” Appellant’s App. p. 18. Section (B), on the other hand, is for a fixed plea. Section (B) of Blanck’s plea agreement was filled in and specifically states that Blanck will serve “3 days/ years in jail with 0 days/years suspended with credit for _ days served. Sentence to be served on electronic monitoring.” Id. Hence, Blanck’s plea agreement, as well as the transcript of the plea hearing, clearly show that Blanck’s three-year sentence did not result from an open plea, but rather from his explicit agreement that for operating a vehicle while intoxicated he would be sentenced to a fixed sentence of three years on electronic monitoring. This plea of guilty with a fixed sentence precludes Blanck from challenging his sentence by direct appeal. Therefore, because Blanck does not have a right to challenge his sentence on direct appeal, he is not “eligible” to seek permission for a belated appeal to challenge his sentence under Post-Conviction Rule 2. Blanck’s available remedy, if any, is through the filing of a petition for post-conviction relief. See Kling v. State, 837 N.E.2d 502, 504 (Ind.2005) (noting that defendant who pleads guilty cannot challenge conviction by means of direct appeal but only through petition for post-conviction relief). Thus, the trial court properly denied Blanck’s petition for permission to file a belated notice of appeal.

Moreover, because Blanck is ineligible to bring a belated appeal, the trial court properly denied Blanck’s petition to appoint appellate counsel for that purpose.

CONCLUSION

For the reasons stated, we conclude that the trial court properly denied Blanck’s petitions for permission to file a belated notice of appeal and for appointment of appellate counsel.

Affirmed.

RILEY, J., and BARNES, J., concur.

      . Although here we use underlining, we note that in the plea agreement the word "years” was circled. See Appellant’s App. p. 18.


author: FISHER, Senior Judge.

text:
    HAMILTON COUNTY ASSESSOR, Petitioner, v. ALLISONVILLE ROAD DEVELOPMENT, LLC, Respondent.
    No. 49T10-1204-TA-30.
    Tax Court of Indiana.
    April 12, 2013.

      Marilyn S. Meighen, Attorney at Law, Carmel, IN, Attorney for Petitioner.
    Andrew S. Berger, Association of Indiana Counties, Indianapolis, IN, Attorney for Amicus Curiae.
    James W. Beatty, James F. Beatty, Jessica L. Findley, Donald D. Levenhagen, Landman & Beatty, Indianapolis, IN, Attorneys for Respondent.
   FISHER, Senior Judge.

This ease concerns whether the Indiana Board of Tax Review erred in determining that Indiana Code § 6-1.1-4-12 required a land developer’s property be assessed as agricultural land for the 2008 tax year despite the fact that it was not used for agricultural purposes. Finding the Indiana Board’s determination proper, the Court affirms.

FACTS AND PROCEDURAL HISTORY

The subject property, consisting of two vacant land parcels, is located in Fishers, Indiana. Beginning in the 1990s, several land developers purchased and owned the property. Prior to that time, the property was actively farmed. Effective with the 2002 general reassessment, the Assessor changed the property’s classification from agricultural land to undeveloped, useable commercial land.

On July 31, 2009, Allisonville Road Development, LLC (Allisonville Development), a land developer that purchased the parcels in April 2006, appealed the property’s 2008 assessment to the Hamilton County Property Tax Assessment Board of Appeals (“PTABOA”). On January 11, 2010, the PTABOA reduced the assessment from $2,237,300 to $1,427,400. Unsatisfied with the reduction, Allisonville Development filed a petition for review with the Indiana Board on January 27, 2010. Allisonville Development asserted that the 2008 assessment was incorrect because the Assessor’s 2002 reclassification of the property from agricultural to commercial contravened Indiana Code § 6-1.1-4-12. More specifically, Allison-ville Development claimed that this statute precluded reassessments based on new classifications until land was subdivided, rezoned, purchased by a non-developer, construction of a building commenced, or a building permit was issued. Allisonville Development explained that because none of those events had occurred as of either the 2002 or the 2008 assessment dates, the property should still have been assessed as agricultural land.

On March 15, 2012, the Indiana Board issued a final determination explaining that under Indiana Code § 6-1.1-4-12, land could be reassessed based on new classifications if certain events occurred, particularly a change in the land’s use. Given its reading of Aboite Corporation v. State Board of Tax Commissioners, 762 N.E.2d 254 (Ind. Tax Ct.2001), review denied, the Indiana Board determined that a cessation of farming activities did not constitute a change in use sufficient to warrant reassessment under Indiana Code § 6-1.1-4-12. (See Cert. Admin. R. at 60 ¶ 32 (footnote added).) As a result, the Indiana Board found that the property’s assessment as commercial land was in error, and it reduced Allisonville Development’s 2008 assessment to $15,684.

On April 27, 2012, the Assessor filed this original tax appeal. The Court heard oral argument on January 11, 2013. Additional facts will be supplied as necessary.

STANDARD OF REVIEW

The party seeking to overturn a final determination of the Indiana Board bears the burden to prove that it is invalid. Osolo Twp. Assessor v. Elkhart Maple Lane Assocs., 789 N.E.2d 109, 111 (Ind. Tax Ct.2003). Consequently, the Assessor must demonstrate to the Court that the Indiana Board’s final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial or reliable evidence, or otherwise not in accordance with the law. See Ind.Code § 33-26-6-6(e)(l), (5) (2013).

DISCUSSION

On appeal, the Assessor claims that the Indiana Board’s final determination is erroneous for two main reasons. First, the Assessor states that the Indiana Board used the wrong version of Indiana Code § 6-1.1-4-12 when it awarded the subject property the “developer’s discount” for 2002. (See Pet’r Br. at 7-12, 14-16.) Second, the Assessor contends that the Indiana Board erred in determining that the cessation of farming activities was not a “change in use” under Indiana Code § 6-1.1-4-12. (See Pet’r Br. at 12-14.)

-1-

The 2002 version of Indiana Code § 6-1.1-4-12 required that land be reassessed when it was subdivided into lots, rezoned, or put to a different use. See Howser Dev. LLC v. Vienna Twp. Assessor, 833 N.E.2d 1108, 1110 (Ind. Tax Ct.2005). The statute, however, contained an exception to this rule, known as the “developer’s discount:” if land was subdivided into lots only, the reassessment was delayed until the next assessment date following a change in title to the land. Id. at 1110. The General Assembly amended this statute in 2006, which, among other things, expanded the scope of the developer’s discount. See Ind.Code § 6-1.1-4-12 (2006).

The Assessor has spent a great deal of time arguing that the Indiana Board awarded the developer’s discount under the 2006 version of the statute when it should have used the 2002 version of the statute. (See Oral Argument Tr. at 10-11; Pet’r Reply Br. at 4-6; Pet’r Br. at 9-11 (footnote added).) Nonetheless, this is a non-issue.

In its final determination, the Indiana Board found that it need not determine which version of the statute applied because “none of the events that would trigger a reassessment under either version of the statute [had] occurred!.]” (Cert. Admin. R. at 58 ¶ 27 (footnote added).) Moreover, the Indiana Board’s final determination expressly indicates that it did not reach the issue of whether the subject property qualified for the developer’s discount in 2002. (See Cert. Admin. R. at 61 n.l (explaining that because it found that none of the events triggering reassessment had occurred in this case, it need not reach the issue of when the developer’s discount would prevent an otherwise proper reassessment).) Consequently, the Assessor has not demonstrated that the Indiana Board’s final determination is erroneous on this basis.

-2-

Next, the Assessor claims that the Aboite case does not support the Indiana Board’s determination that a cessation of farming activities is not a “change in use.” (See Pet’r Br. at 12-14.) According to the Assessor, Aboite simply held that a “change in use” occurred when the developer built a shopping center on its land. (See Pet’r Br. at 13-14.) The Assessor also claims that because the Indiana Board found that the subject property had not been used for agricultural purposes since before the 1990s, assessing it as agricultural land violates Indiana Code § 6-1.1-4-13, which requires that land “be assessed as agricultural land only when it is devoted to agricultural use.” (See Oral Argument Tr. at 23-26). See also Ind.Code § 6-1.1-4-13(a) (2002).

Although the Assessor is correct that the facts giving rise to the “change in use” issue in Aboite and this case differ, the Assessor has missed the bigger picture. In Aboite, this Court explained that the developer’s discount was “designed to encourage developers to buy farmland, subdivide it into lots, and resell the lots.” See Aboite Corp. v. State Bd. of Tax Comm’rs, 762 N.E.2d 254, 257 (Ind. Tax Ct.2001), review denied. That purpose, however, is not only confined to the developer’s discount, but also is the bedrock of the entire statute. Indeed, Indiana Code § 6-1.1-4-12, as a whole, promotes commercial development by allowing a developer’s land to be assessed on the basis of its original (ie., its pre-purchase) classification until an objective event signaling the commencement of development occurs. See I.C. § 6-1.1-4-12 (2002); I.C. § 6-1.1-4-12 (2006). See also State v. Adams, 583 N.E.2d 799, 800 (Ind.Ct.App.1992) (stating that “the intent of the legislature is to be gleaned from the statute as a whole and not from any section or portion thereof taken piecemeal”), trans. denied.

Here, the Assessor claims that the subject property has been used for commercial purposes since the 1990s because that is when it was sold to commercial developers and all active farming operations ceased. (See Pet’r Br. at 4.) Thus, the Assessor equates a “change in use” to nothing more than a change in ownership and potential use. (See Pet’r Br. at 4-5.) A “change in use” under Indiana Code § 6-1.1-4-12, however, requires something more.

Under the 2002 version of Indiana Code § 6-1.1-4-12, reassessments based on new classifications are permissible when land is subdivided into lots, rezoned, or put to a different use: ie., when events that indicate that commercial development is imminent occur. See I.C. § 6-1.1-4-12 (2002); see also Johnson Cnty. Farm Bureau Coop. Ass’n v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 581 (Ind. Tax Ct.1991) (providing that statutory language will be accepted in its ordinary and popular meaning unless doing so defeats legislative intent) aff'd by 585 N.E.2d 1336 (Ind.1992). Here, the cessation of farming activities and the subsequent non-use of land does not necessarily evidence the imminence of commercial development. For example, while certain agricultural land may lie fallow from time-to-time, the use of the land remains agricultural. Likewise, and as evidenced here, a developer’s non-use of land does not necessarily signal the imminence of commercial development. Indeed, while different land developers have owned the subject property since the 1990s and have not actively farmed it, an event signaling' the commencement of commercial development (ie., the property’s subdivision) did not occur until 2010. Accordingly, the Assessor has not demonstrated that the Indiana Board’s final determination is erroneous on this basis.

CONCLUSION

For the foregoing reasons, the final determination of the Indiana Board, which required Allisonville Development’s parcels to be assessed as agricultural land for the 2008 tax year despite the fact that neither parcel was actively farmed, is AFFIRMED.

      . Indiana Code § 6 — 1.1 —4— 12(a) defines a "land developer” as "a person that holds land for sale in the ordinary course of the person’s trade or business.” Ind.Code § 6-1.1-4-12 (2013).

      . In 2010, however, Allisonville Development subdivided and sold a portion of its land to an entity that began to construct a building on the land.

      . The Indiana Board did not conduct a hearing.

      . The parties also disputed whether the 2005 or 2006 version of Indiana Code § 6-1.1-4-12 applied, but the Indiana Board did not resolve that issue.

      .The Assessor claims that the Indiana Board erred in determining that Allisonville Development’s property qualified for the developer’s discount in 2002 because Allisonville Development did not subdivide its land until 2010. (See Pet’r Br. at 9.)

      . In other words, the Indiana Board analyzed both the 2002 and the 2008 assessments based on the version of the statute in effect on the assessment date.

      . As an aside, the amicus curiae warn that upholding the Indiana Board's invalidation of the 2002 assessment overly complicates the budget planning process for local government officials by creating substantial ambiguity in the calculation of tax rates and the determination of the assessed value of property within a county. (See Amicus Curiae Br. at 5-8.) The "invalidation” of the property’s 2002 assessment, however, does not provide Allisonville Development or any other taxpayer with retroactive relief; rather, it affects only the value of Allisonville Development's property for the 2008 tax year. Consequently, no more ambiguity in the budget planning process exists than would exist during any other timely filed property tax appeal.

      . Absent a clear expressed legislative intention to the contrary, this Court will regard statutes as effective, harmonize them, and accord full application to each unless they are irreconcilable and in hopeless conflict. Weiss v. Indiana Parole Bd., 838 N.E.2d 1048, 1051 n. 1 (Ind.Ct.App.2005) (citation omitted), trans. denied. To the extent the Assessor alleges that Indiana Code § 6-1.1-4-12 and Indiana Code § 6-1.1-4-13 conflict, the Court finds that in limited instances, like here, Indiana Code § 6-1.1-4-12 essentially functions as an exception to Indiana Code § 6-1.1-4-13.


text:
    WELLS FARGO BANK, N.A., Appellant, v. Neal A. SUMMERS, et al., Appellees.
    No. 02S04-1302-CP-90.
    Supreme Court of Indiana.
    June 5, 2013.
   PUBLISHED ORDER

By order dated January 31, 2013, the Court’ granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this third appeal in this case. The Court notes that the appellant did not seek transfer in the second appeal in this case, Money Store Investment Corp. v. Summers, 909 N.E.2d 450 (Ind.Ct.App.2009), and the Court cannot conclude that the Court of Appeals in the current appeal abused its discretion in applying the doctrine of law of the case. Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The Court of Appeals opinion published at Wells Fargo Bank, N.A. v. Summers, 974 N.E.2d 488 (Ind.Ct.App.2012), is hereby REINSTATED as Court of Appeals authority. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Margret G. Robb, Chief Judge of the Court of Appeals; the Court of Appeals Administrator; and all counsel of record.

The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Phillip H. CHAMBERLAIN, Respondent.
    No. 53S00-1303-DI-191.
    Supreme Court of Indiana.
    June 11, 2013.
   PUBLISHED ORDER OF INTERIM SUSPENSION UPON NOTICE OF GUILTY FINDING

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(ll.l)(a), has filed a “Notice of Guilty Finding and Request for Suspension,” asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. Respondent requested and was granted an extension of time to and including May 15, 2013, to file a response. That deadline has passed, and Respondent has filed no response.

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following offense under Indiana law: Counterfeiting, a class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective fifteen (15) days from the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 28(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect.

The Clerk of this Court is directed to send notice of this Order to Respondent or Respondent’s attorney by certified or registered mail, to the Indiana Supreme Court Disciplinary Commission, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: PER CURIAM.

text:
    Robert BOWEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 08S02-1306-CR-423.
    Supreme Court of Indiana.
    June 14, 2013.
    Mark K. Leeman, Logansport, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

After a jury trial, Robert Bowen was convicted of several offenses (and sentenced to advisory terms) as follows: unlawful possession of a firearm by a serious violent felon (10 years), dealing in a controlled substance (4 years), possession of a controlled substance (1.5 years) and possession of marijuana (1 year). The trial court ordered the sentences to be served concurrently, except the 4-year sentence was ordered to be served consecutively, for a total executed term of 14 years.

The trial court did not state its reasons for imposing this sentence, either in writing or from the bench, and did not identify any reason for consecutive sentences. Noting that the presentence investigation report disclosed an extensive criminal history and that the trial court had considered the report, the Court of Appeals inferred that Bowen’s criminal history was the reason the trial court had imposed consecutive sentences. See Bowen v. State, No. 08A02-1206-CR-504, 2013 WL 594238 (Ind.Ct.App. Feb. 18, 2013) (mem. dec).

Precedent requires that a trial court “include a reasonably detailed recitation of the trial court’s reasons for imposing a particular sentence,” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.2007), including the reasons for imposing consecutive sentences, see, e.g., Ortiz v. State, 766 N.E.2d 370, 377 (Ind.2002); Smith v. State, 474 N.E.2d 71, 73 (Ind.1985); see also Ind.Code § 35-50-1-2. We choose to remand to the trial court for clarification of its sentencing decision and preparation of a new sentencing order. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind.2007), reh’g denied.

Accordingly, we grant transfer and remand this case to the trial court with instructions to issue an amended sentencing order that complies with the law, without a hearing. See Sanchez v. State, 938 N.E.2d 720, 723 (Ind.2010). The decision of the Court of Appeals is summarily affirmed in all other respects. See App. R. 58(A). Subject only to the rules governing rehearing, this opinion concludes this appeal of the convictions and the original sentencing order.

DICKSON, C.J., and RUCKER, DAVID, MASSA, and RUSH, JJ., concur.


text:
    In the Matter of Veronica M. ROBY, Respondent.
    No. 48S00-1302-DI-151.
    Supreme Court of Indiana.
    June 20, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On March 5, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $523.72 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of David E. CORBITT, Respondent.
    No. 49S00-1305-DI-376.
    Supreme Court of Indiana.
    June 20, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Based on an incident that occurred on April 17, 2012, Respondent was convicted on a guilty plea to the following offenses: resisting law enforcement, a class A misdemeanor, and operating a motor vehicle while intoxicated endangering a person, a class A misdemeanor.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) he was cooperative with the Commission; (3) he is remorseful; (4) he made timely and good faith effort to make restitution for the property damage he caused; (5) he has demonstrated positive character and reputation in his career and by serving on the board of Fairbanks Addiction and Treatment Center; and (6) he voluntarily engaged himself for assessment by the Indiana Judges and Lawyers Assistance Program.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b): Committing a criminal act that reflects adversely on the lawyer’s trustworthiness or fitness as a lawyer.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 2S(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Robert L. COLLINS, Respondent.
    No. 62S00-1008-DI-406.
    Supreme Court of Indiana.
    June 20, 2013.
   PUBLISHED ORDER ACCEPTING RESIGNATION AND CONCLUDING PROCEEDING

A “Verified Complaint for Disciplinary Action” against Respondent was filed on August 12, 2010. Respondent has now tendered to this Court a resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17).

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED that all attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation from the bar of this State, subject to consideration of pending allegations in the event there is a petition for reinstatement.

Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See Admis. Disc. R. 23(4)(a). Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The Clerk is directed to forward a copy of this Order to the hearing officer if one has been appointed, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Anthony T. ADOLF, Respondent.
    No. 02S00-1302-DI-121.
    Supreme Court of Indiana.
    June 20, 2013.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On February 19, 2013, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. On May 1, 2013, Respondent filed an “Answer to Complaint,” the body of which consists of this single sentence: “The undersigned denies all of the material allegations contained in the Complaint.” The Commission has filed a “Request for Ruling and to Tax Costs” and asserts that Respondent has still not cooperated with its investigation.

Finding Respondent’s response to this Court’s show cause order inadequate, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2)the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $512.22 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.