Thomas L. Arflack v. Town of Chandler, Indiana Chandler Town Council and Town of Chandler Advisory Plan Commission ( 2015 )


Menu:
  •                                                                               Feb 26 2015, 10:14 am
    
    
    
    
    ATTORNEY FOR APPELLANT                                         ATTORNEY FOR APPELLEES
    C. Gregory Fifer                                               S. Anthony Long
    Applegate Fifer Pulliam, LLC                                   Long & Mathies Law Firm
    Jeffersonville, Indiana                                        Boonville, Indiana
    
    
    
                                                    IN THE
            COURT OF APPEALS OF INDIANA
    
    Thomas L. Arflack,                                            February 26, 2015
    
    Appellant-Plaintiff,                                          Court of Appeals Cause No.
                                                                  87A01-1406-PL-273
            v.                                                    Appeal from the Warrick Circuit Court.
                                                                  The Honorable David O. Kelley,
    Town of Chandler, Indiana;                                    Judge.
    Chandler Town Council; and                                    Cause No. 87C01-1404-PL-472
    Town of Chandler Advisory
    Plan Commission,
    Appellees-Defendants.
    
    
    
    
    Riley, Judge.
    
    
    
    
    Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                           Page 1 of 15
                                            STATEMENT OF THE CASE
    [1]   Appellant-Plaintiff, Thomas L. Arflack (Arflack), appeals the trial court’s grant of
    
          Appellees-Defendants’, Town of Chandler, Chandler Town Council, and Town of
    
          Chandler Advisory Plan Commission (collectively, Chandler), motion to dismiss for
    
          failure to state a claim pursuant to Indiana Trial Rule 12(B)(6).
    
    
    [2]   We reverse and remand for further proceedings.
    
    
                                                             ISSUES
    
    [3]   Arflack raises two issues on appeal, which we consolidate and restate as the
    
          following single issue: Whether the trial court erred in dismissing Arflack’s
    
          complaint for failing to state a claim pursuant to Indiana Trial Rule 12(B)(6).
    
    
    [4]   In its brief, Chandler raises one issue, which we restate as: Whether the trial court’s
    
          order to dismiss was a final, appealable judgment.
    
    
                                   FACTS AND PROCEDURAL HISTORY
    
    [5]   On January 7, 2013, Arflack was appointed by the Chandler Town Council (Town
    
          Council) to fill a vacant position as a citizen member of the Town of Chandler
    
          Advisory Plan Commission (Advisory Plan Commission) with an unexpired term
    
          ending on December 31, 2013. Arflack subsequently served the unexpired term for
    
          which he was appointed.
    
    
    [6]   During its regular meeting of January 6, 2014, the Town Council voted on a motion
    
          to reappoint Arflack to a new four-year term. The motion was approved by a vote of
    
          four members in favor and one member against. At the next regular meeting of the
          Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 2 of 15
          Advisory Plan Commission on January 12, 2014, Arflack was elected president by
    
          majority vote. Thereafter, on January 21, 2014, the Town Council unanimously
    
          recalled its vote approving Arflack to the Advisory Plan Commission. On March 17,
    
          2014, the Town Council appointed Thomas Woolen as Arflack’s replacement.
    
    
    [7]   On April 4, 2014, Arflack filed a verified complaint for declaratory and injunctive
    
          relief, asserting due process violations because the Town Council had failed to
    
          provide him with notice and seeking a declaration that the removal was invalid
    
          pursuant to Indiana Code section 34-14-1-2. Arflack further requested a permanent
    
          injunction directing that his appointment be recognized until the expiration of the
    
          current term. On April 23, 2014, Chandler filed a motion to dismiss Arflack’s
    
          complaint for failure to state a claim upon which relief can be granted in accordance
    
          with Indiana Trial Rule 12(B)(6). On May 13, 2014, the trial court held a hearing on
    
          Chandler’s motion and fifteen days later entered its order, summarily granting
    
          Chandler’s motion to dismiss and awarding Arflack “thirty days to file an amended
    
          complaint.” (Appellant’s App. p. 4).
    
    
    [8]   Arflack now appeals. Additional facts will be provided as necessary.
    
    
                                          DISCUSSION AND DECISION
    
                                                         I. Jurisdiction
    
    [9]   Because Chandler presents us with a threshold procedural question, we will address
    
          its jurisdictional issue prior to proceeding to the merits of the appeal. Specifically,
    
          Chandler contends that we did not acquire jurisdiction over this appeal because the
    
          trial court’s grant of its motion to dismiss was not a final judgment. Because the trial
          Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 3 of 15
           court allowed Arflack thirty days to cure the defects of his verified complaint,
    
           Chandler maintains that the order does not fall within the purview of Indiana
    
           Appellate Rule 5.
    
    
    [10]   After the hearing on Chandler’s motion to dismiss for failure to state a claim upon
    
           which relief can be granted in accordance with Ind. T.R. 12(B)(6), the trial court
    
           issued an order granting the motion to dismiss and awarding Arflack thirty days to
    
           cure the defects in his complaint. The clerk’s entry on the trial court’s docket merely
    
           reflects “[c]ourt enters Order on [Chandler’s] [m]otion to [d]imiss. (Granted).
    
           [Arflack] is give [sic] thirty days to file Amended Complaint.” (Appellant’s App. p.
    
           3).
    
    
    [11]   A trial court’s entry sustaining a motion to dismiss without actually entering
    
           judgment thereon is insufficient to constitute a final judgment. Constantine v. City-
    
           County Council of Marion Cnty., 
    369 N.E.2d 636
    , 367 (Ind. 1977). The appropriate
    
           procedure for adjudging a motion to dismiss pursuant to the Indiana Trial Rules is
    
           discussed by this court in Parrett v. Lebamoff, 
    383 N.E.2d 1107
    , 1109 (Ind. Ct. App.
    
           1979), where we stated:
    
                   In salient part [T.R. 12(B)(6)] provides,
                            When a motion to dismiss is sustained for failure to state a claim
                            under subsection (B)(6) of this rule the pleading may be amended
                            once as of right pursuant to Rule 15(A) within ten (10) days after
                            service of notice of the court’s order sustaining the motion and
                            thereafter with permission of the court pursuant to such rule.
                   Clearly this language does not contemplate the immediate entry of judgment
                   upon the sustaining of such a motion. Rather it prescribes a procedure
                   similar to the old practice on demurrers.
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015           Page 4 of 15
    [12]   In other words, the court should grant the motion, await the expiration of the ten-day
    
           period or the awarded discretionary time period—in this case, thirty days—and then
    
           adjudge the dismissal for the failure of the party to plead over. See id. In the
    
           alternative, the party against whom the motion is granted may advise the court of his
    
           election not to plead over and thus authorize entry of judgment. Id. Here, Arflack
    
           filed his notice of appeal prior to the expiration of the thirty days and final
    
           adjudication and without apprising the trial court of his decision not to plead over.
    
    
    [13]   However, it is equally clear that the only party harmed by the entry of judgment
    
           immediately upon the sustaining a T.R. 12(B)(6) motion is the party against whom
    
           the motion was directed. Id. If he in fact does not wish to plead over—as clearly
    
           appears to be the case here—then no harm has occurred from the error. See id.
    
    
    [14]   In addition, we are mindful that Indiana Appellate Rule 66(B) provides that appeals
    
           should not be dismissed as a matter of right merely because the case was not finally
    
           disposed of in the court below. We may dismiss such an appeal, or in our discretion,
    
           we may suspend consideration until the necessary final disposition is made by the
    
           trial court, or we may decide the issues which have been adjudicated so long as they
    
           are properly severable. See Ind. Appellate Rule 66(B).
    
    
    [15]   In this case, we could remand to the trial court with instructions to afford Arflack the
    
           opportunity to amend and then enter an appropriate judgment. Under the issues the
    
           parties seek to litigate and after being presented with fully briefed arguments, it
    
           appears that a remand would merely provide delay for the amount of time necessary
    
           to secure a procedurally correct entry. We hold that delay to be unnecessary, and
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015        Page 5 of 15
           that Arflack has waived the error arising from his failure to await the entry of the
    
           judgment of dismissal. Therefore, we deny Chandler’s request to dismiss this appeal
    
           for lack of jurisdiction, and we will address the merits of Arflack’s appeal.
    
    
                                                     II. Motion to Dismiss
    
    
    [16]   Arflack contends that the trial court erred in dismissing his complaint against
    
           Chandler pursuant to T.R. 12(B)(6). The standard of review on appeal from a trial
    
           court’s grant of a motion to dismiss for the failure to state a claim is de novo and
    
           requires no deference to the trial court’s decision. Bellows v. Bd. of Comm’rs of Cnty of
    
           Elkhart, 
    926 N.E.2d 96
    , 110 (Ind. Ct. App. 2010). The grant or denial of a motion to
    
           dismiss turns on the legal sufficiency of the claim and does not require
    
           determinations of fact. Id. Therefore, a motion to dismiss under Rule 12(B)(6) tests
    
           the legal sufficiency of a complaint: that is, whether the allegations in the complaint
    
           establish any set of circumstances under which a plaintiff would be entitled to relief.
    
           Id. Thus, while we do not test the sufficiency of the facts alleged with regard to their
    
           adequacy to provide recovery, we do test their sufficiency with regards to whether or
    
           not they have stated some factual scenario in which a legally actionable injury has
    
           occurred. Id. In determining whether any facts will support the claim, we look only
    
           to the complaint and may not resort to any other evidence in the record. Lawson v.
    
           First Union Mortg. Co., 
    786 N.E.2d 279
    , 281 (Ind. Ct. App. 2003).
    
    
    [17]   Thus, a court should accept as true the facts alleged in the complaint and should not
    
           only consider the pleadings in the light most favorable to the plaintiff, but also draw
    
           every reasonable inference in favor of the non-moving party. Trail v. Boys & Girls
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 6 of 15
           Club of Nw. Ind., 
    845 N.E.2d 130
    , 134 (Ind. 2006). However, a court need not accept
    
           as true allegations that are contradicted by other allegations or exhibits attached to or
    
           incorporated in the pleading. Id.
    
    
    [18]   Here, the trial court dismissed Arflack’s claim without a detailed written opinion as
    
           to its reasons for dismissal. When a court grants a motion to dismiss without reciting
    
           the grounds relied upon, it must be presumed on review that the court granted the
    
           motion to dismiss on all the grounds in the motion. Id.
    
    
    [19]   In its motion to dismiss pursuant to T.R. 12(B)(6), Chandler asserted three
    
           alternative grounds: (1) Arflack failed to follow the provisions of Ind. Code § 34-13-
    
           6-1 et seq.; (2) Arflack failed to allege that he suffered an injury as a result of the
    
           conduct complained of; and (3) the records attached to Arflack’s complaint were not
    
           certified or signed. We will review de novo each allegation in turn.
    
    
                                           A. Indiana Code section 34-13-6-1 et seq.
    
    
    [20]   First, Chandler maintains that Arflack failed to timely file his complaint in
    
           accordance with I.C. § 34-13-6-1, which governs the appeals from actions of
    
           municipalities. Specifically, I.C. § 34-13-6-1 provides that
    
                   (a) An appeal allowed by statute from any action or decision of:
                   ***
                   (3) the legislative body of a town;
                   Shall be filed as an original complaint against the city or town in the circuit
                   or superior court of the county in which the municipality is located.
                   (b) The complaint on appeal must be filed no later than thirty (30) days after
                   the date of the action or decision complained of.
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015               Page 7 of 15
           Because Arflack’s appointment to the Advisory Plan Commission was revoked by
    
           the Town Council on January 21, 2014, Chandler asserts that Arflack’s verified
    
           complaint, filed on April 4, 2014, was filed outside the statutory period of thirty
    
           days.
    
    
    [21]   In his verified complaint, Arflack contends
    
                   10. Following Arflack’s reappointment to the [Advisory Plan Commission],
                   the Town Council, as the appointing authority for Arflack’s position on the
                   [Advisory Plan Commission], could only remove Arflack as a member of
                   the [Advisory Plan Commission] for cause by providing written notice of the
                   removal along with written reasons for the removal mailed to Arflack at his
                   residence address in accordance with the provisions of Ind. Code § 36-7-4-
                   218(f).
                   11. The Town Council has never provided Arflack with any written notice
                   of his removal from the [Advisory Plan Commission] or the reasons
                   constituting any claimed cause for such removal.
           (Appellant’s App. p. 7).
    
    
    [22]   Pursuant to the statute relied upon by Arflack, the Town Council could only remove
    
           Arflack for cause after having re-appointed him by providing him with written notice
    
           thereof. See I.C. § 36-7-4-128(f). Even though the Town Council approved to
    
           rescind his re-appointment on January 21, 2004, Arflack never received a written
    
           notice. On March 17, 2014, the Town Council appointed Arflack’s replacement to
    
           the Advisory Plan Commission, and on April 4, Arflack filed his verified complaint.
    
    
    [23]   Although we agree that Arflack’s action was subject to the thirty-day limitation
    
           period as enacted in I.C. § 34-13-6-1(b), “[a] civil action is premature when it has not
    
           accrued so that the plaintiff can legally institute an action for relief.” ITT Hartford
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015       Page 8 of 15
           Ins. Group v. Trowbridge, 
    626 N.E.2d 567
    , 569 (Ind. Ct. App. 1993), reh’g denied. A
    
           cause of action accrues, and the statute of limitation begins to run, when a claimant
    
           knows, or in the exercise of ordinary diligence should have known, of the injury.
    
           Planz v. Foster, 
    888 N.E.2d 756
    , 759 (Ind. 2008). For an action to accrue, it is not
    
           necessary that the full extent of the damage be known or even ascertainable, but only
    
           that some ascertainable damage has occurred. Id. The exercise of reasonable
    
           diligence means simply that an injured party must act with some promptness where
    
           the acts and circumstances of an injury would put a person of common knowledge
    
           and experience on notice that some right of his has been invaded or that some claim
    
           against another party might exist. Perryman v. Motorist Mut. Inc. Co., 
    846 N.E.2d 683
    ,
    
           689 (Ind. Ct. App. 2006).
    
    
    [24]   Arflack’s complaint disputes the manner in which the Town Council quashed his
    
           appointment and installed his successor. Even though the Town Council revoked
    
           Arflack’s appointment on January 21, 2014, no cause of action accrued at that time
    
           because the Town Council failed to notify him in writing of that decision and Arflack
    
           statutorily continued to “serve[] until his successor [was] appointed and qualified.”
    
           I.C. § 36-7-4-218(a). Therefore, it was not until March 17, 2014, when the Town
    
           Council appointed Arflack’s successor and the damage became ascertainable, that
    
           the statute of limitations commenced to run. As Arflack filed his verified complaint
    
           on April 4, 2014, well within the thirty-day period, his cause of action is not time-
    
           barred.
    
    
                                                              B. Injury
    
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 9 of 15
    [25]   Next, Chandler contends that Arflack’s verified complaint for declaratory and
    
           injunctive relief “does not allege that he sustained or was in imminent danger of
    
           sustaining any injury as a result of the conduct complained of, and he is therefore not
    
           entitled to declaratory relief.” (Appellee’s Br. p. 13).
    
    
    [26]   Indiana Code section 34-14-1-2 provides that “[a]ny person interested under a deed,
    
           will, written contract, or other writings constituting a contract, or whose rights,
    
           status, or other legal relations are affected by a statute, municipal ordinance,
    
           contract, or franchise, may have determined any question of construction or validity
    
           arising under the instrument, statute, ordinance, contract, or franchise and obtain a
    
           declaration of rights, status, or other legal relations thereunder.” The purpose of the
    
           statute is “to settle and to afford relief from uncertainty and insecurity with respect to
    
           rights, status and other legal relations; and is to be liberally construed and
    
           administered.” I.C. § 34-14-1-12.
    
    
    [27]   In relying on the Uniform Declaratory Judgments Act, Arflack alleged in his
    
           complaint that “[t]he Town Council’s action in purporting to remove Arflack from
    
           his appointed position on the [Advisory Plan Commission] without notice has
    
           operated to deprive Arflack of his due process right to appeal the removal through
    
           judicial review[.]” (Appellant’s App. p. 7). In other words, by removing Arflack
    
           from his appointed position in a purported violation of the notice requirement of I.C.
    
           § 36-7-4-128(f ), Arflack’s due process rights were violated, and he is now seeking a
    
           declaration as to the validity of his removal. Linked to Arflack’s requested judicial
    
           declaration is his uncontested request for a permanent injunction, directing Chandler
    
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015      Page 10 of 15
           to recognize him as the properly appointed member of the Advisory Plan
    
           Commission and to institute him for the remainder of his term.
    
    
    [28]   Unlike Chandler, we find that Arflack’s complaint sufficiently asserted a factual
    
           scenario in which a legally actionable injury has occurred. Id.
    
    
                                                   C. Uncertified Attachments
    
    
    [29]   Lastly, while Chandler sought the dismissal of Arflack’s cause before the trial court
    
           based on the unsigned, uncertified copies of the Town Council’s meeting minutes
    
           attached to the verified complaint, Chandler now concedes on appeal that “the trial
    
           court’s dismissal [] was not based solely upon Arflack’s failure to attach signed,
    
           certified copies[.]” (Appellees Br. p. 16).
    
    
    [30]   While we agree with Chandler’s concession to a certain extent, we hold that a trial
    
           court cannot dismiss a party’s complaint based solely on the party’s failure to file a
    
           properly certified attachment with its pleading. Indiana Trial Rule 9.2(A) provides
    
           that when a pleading, allowed by the rules, is founded on a written instrument, the
    
           original, or a copy thereof, must be included or filed with the pleading. These
    
           documents, if not objected to under oath in a responsive pleading, are “deemed
    
           admitted into evidence” pursuant to T.R. 9(B). However, it is undeniable that
    
           Chandler objected to the admission of the unsigned and uncertified attachments.
    
    
    [31]   Without having to address Arflack’s assertion that his complaint is not based on a
    
           written instrument, the effect of noncompliance with T.R. 9.2(A) is governed by T.R.
    
           9.2(F), in which the correction of an essential written document may be subject to a
    
           trial court order to amend the complaint and rectify the attachments or the trial
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 11 of 15
           court, in its discretion, may allow the action to continue without further pleading.
    
           As such, Arflack’s “failure to comply with the pleading requirements of T.R. 9.2(A)
    
           does not warrant dismissal of the complaint.” Wilson v. Palmer, 
    452 N.E.2d 426
    , 429
    
           (Ind. Ct. App. 1983).
    
    
    [32]   We are mindful that we view motions to dismiss for failure to state a claim with
    
           disfavor because such motions undermine the policy of deciding causes of action on
    
           their merits. Hill v. Beghin, 
    644 N.E.2d 893
    , 895 (Ind. Ct. App. 1994), trans. denied.
    
           Based on our review, we conclude that Arflack’s complaint sufficiently states a set of
    
           allegations upon which a trial court may grant relief. Runde v. Vigus Realty, Inc., 
    617 N.E.2d 572
    , 575 (Ind. Ct. App. 1993). Therefore, we reverse the trial court’s grant of
    
           Chandler’s motion to dismiss and remand this cause to the trial court for proceedings
    
           on the merits.1
    
    
                                                           CONCLUSION
    
    [33]   Based on the foregoing, we conclude that the trial court’s order to dismiss was a
    
           final, appealable order and the trial court erred by granting Chandler’s motion to
    
           dismiss based on a failure to state a claim.
    
    
    [34]   Reversed and remanded for further proceedings.
    
    
    [35]   Baker J. concurs
    
    
    
    
           1
            Even though Arflack fully briefed its cause on the merits, at this point in time, only the trial court’s grant of
           Chandler’s motion to dismiss is properly before this court and subject to our review.
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                                  Page 12 of 15
    [36]   Vaidik, C.J. concurs in result with separate opinion
    
    
    
    
           Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015   Page 13 of 15
                                                    IN THE
            COURT OF APPEALS OF INDIANA
    
    Thomas Arflack,                                                [Add Hand-down date]
    
    Appellant-Plaintiff,                                           Court of Appeals Case No.
                                                                   87A01-1406-PL-273
            v.                                                     Appeal from the Warrick Circuit Court
                                                                   The Honorable David O. Kelley, Judge
    Town of Chandler, Indiana,                                     Trial Court Cause No. 87C01-1404-PL-
    Chandler Town Council, and Town                                472
    of Chandler Advisory Plan
    Commission,
    Appellees-Defendants
    
    
    
    
    Vaidik, Chief Judge, concurring in result.
    
    The majority concludes that the trial court’s dismissal order was a final, appealable
    
    order and the court erred by granting Chandler’s motion to dismiss based on a failure
    
    to state a claim. I agree with this result; however, I write separately because I believe
    
    the majority improperly resolves the ultimate issue of whether Arflack could only be
    
    removed for cause and was entitled to written notice of his removal from the Town
    
    Council.
    
    
    A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint,
    
    not the facts that support it. See Charter One Mortg. Corp. v. Condra, 
    865 N.E.2d 602
    ,
    
    604 (Ind. 2007) (citation omitted). A court should accept as true the facts alleged in
    
    the complaint, and should not only consider the pleadings in the light most favorable
    
    to the plaintiff, but also draw every reasonable inference in favor of the non-moving
    Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015                    Page 14 of 15
    party. Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 
    3 N.E.2d 1
    , 4 (Ind. 2014)
    
    (citation omitted).
    
    
    The parties dispute whether Arflack’s complaint, filed on April 4, 2014, is time-
    
    barred. The Town Council argues that the thirty-day window for filing began on
    
    January 21, 2014, when Arflack’s appointment was rescinded by Town Council vote,
    
    and Arflack’s complaint, filed seventy-three days later, was thus untimely. Arflack
    
    argues that the thirty-day window began on March 14, 2014, when his Town
    
    Council successor was appointed, and his complaint, filed twenty-one days later, is
    
    therefore timely. Arflack’s claim hinges on his argument that the Town Council
    
    could only remove him for cause and with written notice, which it did not provide,
    
    and in the absence of written notice, he did not learn of his cause of action until
    
    March 14, 2014. At this stage, we should accept Arflack’s assertions as true. We
    
    should not, however, decide the ultimate issue.
    
    
    The majority notes that “no cause of action accrued [as of January 21, 2014] because
    
    the Town Council failed to notify [Arflack] in writing of [its] decision . . . .” Slip op.
    
    at 9. To me, this suggests that the majority has gone beyond testing the legal
    
    sufficiency of Arflack’s complaint and resolved (in his favor) Arflack’s claim that he
    
    could only be removed for cause and was entitled to written notice from the Town
    
    Council. I would not go so far: accepting Arflack’s assertions as true, I would simply
    
    reject the Town Council’s claim that Arflack’s complaint is untimely and leave the
    
    determination regarding for-cause removal for the trial court. To that end, I
    
    respectfully concur in result.
    
    
    Court of Appeals of Indiana | Opinion 87A01-1406-PL-273 | February 26, 2015     Page 15 of 15