Katherine Fraze v. Floyd County Health Department, and City of New Albany and Animal Control

• Court: Indiana Court of Appeals
• Decided: June 30, 2014
• Docket: 22A04-1402-CC-62
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jun 30 2014, 10:02 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

ALAN W. ROLES JONATHAN A. LEACHMAN Coleman, Roles & Associates, PLLC Fifer Law Office Louisville, Kentucky New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA

KATHERINE FRAZE, ) ) Appellant, ) ) vs. ) No. 22A04-1402-CC-62 ) FLOYD COUNTY HEALTH DEPARTMENT, ) ) Appellee, ) ) and ) ) CITY OF NEW ALBANY AND ANIMAL ) CONTROL, ) ) Appellee. )

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Glenn G. Hancock, Judge Cause No. 22D02-1001-CC-210

June 30, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

Katherine Fraze (“Fraze”) appeals the trial court’s denial of her motion to correct

error, which challenged the propriety of a 2010 trial court order favoring the City of New

Albany (“New Albany”) and limiting the number of dogs Fraze could keep on her property.

We affirm.

Issue

Fraze raises several issues for our review concerning the constitutionality of the trial

court’s order. We find persuasive New Albany’s responsive argument that Fraze did not

timely bring her motion to correct error. We accordingly do not reach the merits of Fraze’s

designated issues on appeal.

Facts and Procedural History

On January 28, 2010, Fraze filed a petition for judicial review of an order of the Floyd

County Health Department (“the Department”), which challenged the Department’s order

that she vacate property on which she was keeping numerous dogs. On September 13, 2010,

the trial court found that Fraze had violated a Floyd County animal control ordinance

concerning the number of dogs allowed on her property, which was limited to four. The

court ordered Fraze to come into compliance with the ordinance by September 20, 2010. On

October 5, 2010, the court found that Fraze was in compliance with the ordinance and its

September 13, 2010 order.

2 Over the ensuing years, several status conferences were conducted. Until October

2013, the Chronological Case Summary reveals no alleged or proved violations of the

ordinance or the court’s order.

On October 3, 2013, the City filed its motion to intervene in the case as the designated

agent for enforcement of the Floyd County animal control ordinance. The trial court granted

the motion to intervene.

Also on October 3, 2013, the City filed a motion alleging Fraze had more than four

dogs on her property, and requested authorization from the trial court to seize from Fraze’s

property any dogs in excess of the four she was permitted to retain under the ordinance and

the trial court’s September 13, 2010 order. Along with this motion, the City filed an affidavit

for rule to show cause why Fraze should not be held in contempt for violating the September

13, 2010 order.

On October 22, 2013, a hearing was held on the City’s motion and affidavit for rule to

show cause. At the hearing, Fraze was ordered to reduce the number of dogs on her property

to four, with an inspection scheduled to occur on November 25, 2013.

The show-cause hearing was continued several times, and was eventually set for

January 14, 2014. In the interim, Fraze filed a motion to reconsider or, in the alternative, to

correct error with respect to the September 13, 2010 order. In Fraze’s motion, she contended

that the September 13, 2010 order was unconstitutional.

The show-cause hearing was conducted on January 14, 2014. On February 12, 2014,

the trial court issued its order denying Fraze’s motion.

3 This appeal ensued.

Discussion and Decision

Fraze challenges the constitutionality of the provisions of the September 13, 2010

order requiring her to limit the number of dogs on her property to four. We do not reach this

issue because we conclude, as did the trial court, that Fraze’s challenge was untimely.

Fraze appeals the trial court’s denial of her motion to correct error, which she

alternately frames as a motion to set aside the judgment as void. We review both motions to

correct error and motions to set aside judgments for an abuse of discretion, which occurs

when the trial court’s decision is contrary to the logic and effect of the facts and

circumstances before it, or when the trial court errs as a matter of law. Perkinson v.

Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (pertaining to motions to correct error); Whitt v.

Farmer’s Mut. Relief Ass’n, 815 N.E.2d 537, 539 (Ind. Ct. App. 2004) (pertaining to motions

to set aside judgment).

Trial Rule 59 governs the filing and procedure for a motion to correct error. For most

judgments, a motion to correct error is not a prerequisite for an appeal. Ind. Trial Rule

59(A). To be timely filed, a party must file its motion to correct error no later than thirty days

after the entry of a final judgment. T.R. 59(C).

On September 13, 2010, the trial court entered the order that Fraze challenges. During

2011 and 2012, several status hearings were conducted. Our review of the record discloses

no attempt to object at those times, or any failure on Fraze’s part to comply with the 2010

4 order. It was not until November 2013 that Fraze brought her motion. As such, the motion

was not timely filed.

Nor does Trial Rule 60 preserve Fraze’s claims. Trial Rule 60(B) provides several

bases upon which a party may seek relief from judgment outside the bounds of a direct

appeal or an appeal from a timely motion to correct error. Fraze claims that her challenge to

the trial court’s September 13, 2010 order was timely under Rule 60(B)(6).

Rule 60(B)(6) provides that parties may obtain relief from judgment when the

judgment is void. The rule further provides that a motion under Rule 60(B)(6) “shall be filed

within a reasonable time.” Fraze contends that the judgment was void on constitutional

grounds and that her motion to set aside the judgment was timely.

Whether a judgment is void or voidable is “no mere semantic quibble.” Stidham v.

Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). Where a judgment is void it is “‘from its

inception … a complete nullity and without legal effect.’” Id. (quoting 46 Am. Jur. 2d

Judgments § 31 (1994)). “By contrast, a voidable judgment ‘is not a nullity, and is capable of

confirmation or ratification. Until superseded, reversed, or vacated it is binding, enforceable,

and has all the ordinary attributes and consequences of a valid judgment.’” Id. (quoting 46

Am. Jur. 2d Judgments § 30 (1994)). A void judgment is not subject to the same

discretionary review under Trial Rule 60(B)(6), “because either the judgment is void or it is

valid.” D.L.D. v. L.D., 911 N.E.2d 675, 678 (Ind. Ct. App. 2009), trans. denied.

Here, Fraze could have challenged the judgment through a timely motion to correct

error or an appeal, which could in turn have corrected any constitutional error. She did not

5 do so, participated in status conferences in 2011 and 2012, and waited until November

2013—when she faced sanctions for contempt—to challenge the judgment. That is, the trial

court’s judgment of September 10, 2010 was “subject to confirmation or ratification.” Id. at

1154. It was at most voidable, not void.

Consequently, Fraze’s motion to correct error or set aside the judgment does not fall

within the provisions of Rule 60(B)(6) concerning void judgments, and is subject to the same

timeliness requirements as other motions to correct error or to set aside a judgment. Because

Fraze’s motion was neither brought within a year, as applies to certain motions to set aside

judgment, or within a reasonable time, her challenge to the September 13, 2010 order was not

timely. Accordingly, the trial court did not abuse its discretion when it denied her motion

challenging the September 13, 2010 order.

Conclusion

Fraze did not timely challenge the order limiting the number of dogs on her property

to four. We accordingly find no error in the trial court’s denial of Fraze’s motion to correct

error.

Affirmed.

KIRSCH, J., and MAY, J., concur.