City of La Porte v. Christopher A. Throgmorton (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 26, 2020
• Docket: 19A-PL-2625
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 26 2020, 8:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Nicholas T. Otis Newby Lewis Kaminski & Jones, LLP La Porte, Indiana

IN THE COURT OF APPEALS OF INDIANA

City of La Porte, October 26, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-PL-2625 v. Appeal from the La Porte Circuit Court Christopher A. Throgmorton, The Honorable Thomas J. Appellee-Petitioner. Alevizos, Judge The Honorable Kim Hall, Special Judge Trial Court Cause No. 46C01-1803-PL-304

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 1 of 10 Statement of the Case [1] The City of La Porte (“the City”) appeals the trial court’s order compelling the

disclosure of certain public records pursuant to Christopher Throgmorton’s

petition under Indiana’s Access to Public Records Act (“APRA”), Ind. Code §§

5-14-3-1 to -10 (2020). The City raises two issues for our review, which we

restate as the following dispositive issue: Whether the City’s appeal is properly

before us.

[2] We dismiss this appeal.

Facts and Procedural History [3] In March of 2018, Throgmorton filed his APRA petition against the City

requesting the disclosure of certain public records. In particular, Throgmorton

requested “case reports or supplemental reports . . . in reference to . . . incidents

in which he was subjected to unlawful search and seizure” and records

regarding a “[n]o trespass order” covering seven specified dates. Appellant’s

App. Vol. II at 12 (quotation marks omitted). He specifically identified “13

documents” that had been “withheld” from disclosure by the City under

various APRA disclosure exceptions. Id. (quotation marks omitted). He then

stated that he was seeking “any documents referencing” the incidents on the

specified dates. Id. at 16.

[4] In its response to Throgmorton’s petition, the City asserted that one of its

attorneys had generated thirteen pages of documents (“the disputed

documents”) relating to how local officials should respond to Throgmorton,

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 2 of 10 who frequently visited and made demands of local officials. 1 The City stated

that the disputed documents were not subject to disclosure as they were

protected under attorney-client privilege, attorney work-product privilege,

and/or as deliberative materials. Id. at 24. The City also acknowledged that it

had withheld various police incident reports from disclosure under APRA’s

exception for investigatory records of law enforcement.

[5] On April 10, 2018, the trial court held a hearing on Throgmorton’s petition. At

that hearing, Throgmorton made clear that he was asking for the disputed

documents. Specifically, in a lengthy discussion with the court, he stated that

he had been unfairly targeted by the City in the disputed documents, that those

documents had led to violations of his civil liberties, and that he believed that

APRA gave him the right to review those documents. Tr. at 15-18. He

specifically asked for “the 13 documents” and requested clarification as to

whether the City was withholding the disputed documents under an attorney

privilege or under the investigatory records exception. Id. at 18.

[6] The City argued only that all of its withheld documents were withheld under

the exception for investigatory records. The City stated that, although it did not

think that Throgmorton had properly requested the disputed documents, it had

brought them to the hearing for the court to review them in camera. The City

further informed the court that it was going to disclose all of the requested

1 The disputed documents have been filed with our Court under seal.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 3 of 10 documents to Throgmorton until it had learned that he had called the personal

cell phone number of a city employee, which he had obtained from another

disclosed document. After that, the City declined to disclose any of the

requested records.

[7] The trial court requested the City’s documents for an in camera review, stating,

“I’m going to read all of this. I’m going to come up with a response.” Id. at 39.

Throgmorton then again asked if the disputed documents were being withheld

as investigatory records. The City did not answer that question directly, but did

acknowledge that Throgmorton’s records request “relates to anything related”

to the incidents on the specified dates. Id. at 40.

[8] On May 25, the trial court entered judgment for Throgmorton and directed the

City to disclose the requested records (“the final judgment”). In particular, the

court found and concluded as follows:

2. [The City] has attempted to block disclosure of documentation regarding 7 specific events listed by [Throgmorton].

3. [The City] relies on IC 5-14-3-4(b)(1) which lists an investigatory record as exempt from disclosure.

***

5. [The City] has failed to meet its burden of showing how these minimal reports are . . . subject to exemption by statute, or alternatively, what is the purpose served by preventing disclosure . . . .

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 4 of 10 6. This Court finds that simple reports regarding specific conduct are not investigatory records . . . .

IT IS THEREFORE ORDERED that [Throgmorton’s] Petition to Compel Disclosure of Public Records is hereby GRANTED. [The City] shall make available to [Throgmorton] the requested documentation associated with the events regarding pat downs and communications requested by [Throgmorton] on [the seven specified dates].

Appellant’s App. Vol. II at 72-73 (emphasis added). In its judgment, the court

did not distinguish the disputed documents from the other requested

documents.

[9] On June 4, the City filed a motion to correct error. Although the City has not

included that motion in the record on appeal, in a subsequent filing with the

trial court the City described its motion as requesting the court to amend its

final judgment to allow the City to withhold police incident reports on three of

the specified dates under the APRA exception for investigatory records of law

enforcement. See id. at 74-75. The City does not suggest that it requested any

further clarification from the trial court on the scope of its final judgment with

respect to the disputed documents or any other documents.

[10] On July 10, prior to either a ruling on the motion to correct error or the end of

the forty-five-day timeframe within which that motion would be deemed denied

by operation of Indiana Trial Rule 53.3(A), the City informed the court that it

had produced to Throgmorton the police incident reports that were the subject

of the motion to correct error. Accordingly, the City informed the court that it

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 5 of 10 had “resolve[d] all remaining outstanding issues in this matter.” Id. at 76. The

City thus moved the trial court to “dismiss this case.” Id.

[11] On July 12, the trial court entered an order in which it denied the City’s motion

to correct error. In that same order, the court stayed the City’s request to

dismiss the case 2 and gave Throgmorton thirty days to dispute whether the City

had in fact complied with the court’s final judgment. Throgmorton filed a

timely response thereafter and asserted that he had not received the disputed

[12] Nothing happened in this case over the next fourteen and one-half months.

Then, in late October of 2019, Throgmorton communicated by telephone with

the court’s chief of staff about the case, and the next day the court issued an

order to compel against the City directing the City to turn over the disputed

documents (“the October 2019 order to compel”). Throgmorton recorded his

communications with the court staff and posted those communications on the

internet, where the City found them. The City then moved to have the court

vacate the October 2019 order to compel, recuse itself from these proceedings,

and enter a change of venue from the judge, alleging that the court had engaged

in inappropriate ex parte communications with Throgmorton on the day prior to

issuing the October 2019 order to compel. On November 12, 2019, the City

then filed its notice of appeal from the October 2019 order to compel.

2 The trial court never formally ruled on the City’s motion to dismiss.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 6 of 10 [13] In December, without a hearing, the trial court issued written findings in which

in concluded that there were no improper ex parte communications (“the

December 2019 order”). Further, even though a notice of appeal had been

filed, in that order the court denied the City’s request for a change venue from

the judge and to vacate the October 2019 order to compel. However, after

reaching those conclusions, the court then stated that it recused itself from

further proceedings in this matter, after which a special judge was appointed.

Discussion and Decision [14] The City appeals from the October 2019 order to compel. But we conclude that

the City’s appeal is not properly before us. In its notice of appeal, the City

described the October 2019 order to compel as a final judgment. We cannot

agree.

[15] The trial court entered its final judgment in this matter on May 25, 2018, when

it granted Throgmorton’s petition for public documents and directed the City to

disclose those records. Indeed, the City plainly thought as much, as it filed a

motion to correct error from that judgment on June 4, 2018. As our trial rules

make clear, a motion to correct error “shall be filed not later than thirty (30)

days after the entry of a final judgment . . . .” Ind. Trial Rule 59(C) (emphasis

added).

[16] An appellant’s notice of appeal is due thirty days “after the entry of a Final

Judgment is noted in the Chronological Case Summary,” or thirty days “after

the court’s ruling” on a motion to correct error “is noted in the Chronological

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 7 of 10 Case Summary.” Ind. Appellate Rule 9(A)(1). Here, the City filed a motion to

correct error and, as such, had thirty days after the trial court ruled on the

motion to correct error to file a notice of appeal. The trial court entered its

order denying the City’s motion to correct error on July 12, 2018, and that

order was recorded in the Chronological Case Summary on July 13. Therefore,

the City’s notice of appeal was due no later than August 12, 2018. The City

filed its notice of appeal on November 12, 2019, sixteen months after the court’s

denial of the motion to correct error. Therefore, the City’s appeal is not a

timely appeal from a final judgment.

[17] Rather, the City is attempting to bring an interlocutory appeal from the October

2019 order to compel. But the City did not request that the trial court certify

the October 2019 order to compel for interlocutory review under Indiana

Appellate Rule 14(B), and that order is not appealable as a matter of right under

Indiana Appellate Rule 14(A)(3). Rule 14(A)(3) permits an appeal as a matter

of right from an interlocutory order to “compel the delivery . . . of any . . .

document . . . .” App. R. 14(A)(3). But our Supreme Court has made clear that

Rule 14(A)(3) “is not designed to create an appeal as of right from every order

to produce documents during discovery.” Ball State Univ. v. Irons, 27 N.E.3d

717, 721 (Ind. 2015) (quoting State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991)).

Rather, Rule 14(A)(3) applies only to interlocutory orders “which carry

financial and legal consequences akin to those more typically found in final

judgments: payment of money, issuance of debt, delivery of securities, and so

on.” Id. (quoting Hogan, 582 N.E.2d at 825).

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 8 of 10 [18] Here, the disclosure of the public records requested does not carry any more

financial and legal consequences than any other documents that one might be

compelled to disclose during ordinary discovery. Nor does the fact that this is

an APRA lawsuit—where the only issue is the disclosure of documents—affect

our analysis. On APRA petitions, the order to compel and the final judgment

are nearly always one and the same. However, here, the trial court was

required to enter a post-judgment order to compel due to the City’s

noncompliance with the final judgment. The City’s noncompliance with the

final judgment does not covert the subsequent order to compel into another

final judgment.

[19] Nonetheless, the City asserts that the trial court’s final judgment was unclear

with respect to the disputed documents. But the City’s argument suffers from

two fatal flaws. First, the disputed documents were before the trial court on

Throgmorton’s petition, and the final judgment was not unclear. The City did

not argue to the trial court at the April 2018 hearing that it was withholding the

disputed documents under any theory other than the APRA exception for

investigatory records of law enforcement, even though Throgmorton repeatedly

requested the City to clarify its position with respect to the disputed documents.

Throgmorton identified them in his petition, the City acknowledged them in its

response, the parties extensively discussed them at the April hearing, the City

disclosed them to the court for an in camera review, and the court informed the

parties that it would review them and rule on them. And the final judgment

expressly rejected the City’s stated theory for withholding all documents and

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 9 of 10 then expressly directed the City do disclose its “communications” relating to

the specified incidents. Appellant’s App. Vol. II at 73. In other words, the trial

court’s final judgment was categorical and made no exception for the disputed

[20] Second, the City’s argument that the final judgment was unclear does not affect

the untimeliness of this appeal. If the City thought the final judgment was

unclear, the City’s remedy was to request clarification by way of a motion to

correct error or similar motion in the trial court within an appropriate

timeframe or to prosecute a timely appeal. The City did not have the option to

assume that the disputed documents were excluded from the final judgment and

then, more than sixteen months later, ask our Court to address the merits or

scope of that final judgment.

[21] We conclude that the City’s appeal from the October 2019 order to compel

amounts to a collateral attack on the final judgment and is not properly before

us. 3 Therefore, we dismiss this appeal.

[22] Dismissed.

Bradford, C.J., and Mathias, J., concur.

3 We also note that, insofar as the City’s challenge to the October 2019 order to compel sought the relief of a new judge, the City has received that relief, and thus the City’s argument on that point is moot. And the City’s argument that the October 2019 order to compel should be vacated due to the alleged ex parte communications is improper for the same reasons stated in this decision.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2625 | October 26, 2020 Page 10 of 10