Robert M. Sklar v. Town of North Manchester (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 15, 2020
• Docket: 19A-OV-2157
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jan 15 2020, 9:33 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Robert M. Sklar Matthew J. Mize North Manchester, Indiana Law Offices of Matthew J. Mize, LLC North Manchester, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert M. Sklar, January 15, 2020 Appellant, Court of Appeals Case No. 19A-OV-2157 v. Appeal from the Wabash Superior Court Town of North Manchester, The Honorable Benjamin Appellee. Vanderpool, Judge Trial Court Cause No. 85D01-1906-OV-470

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 1 of 7 [1] Robert M. Sklar appeals the dismissal of an information filed by the Town of

North Manchester (the “Town”). We affirm.

Facts and Procedural History

[2] On June 14, 2019, the Town filed an Information For Blocking

Drive/Sidewalk/Alley, Ordinance Violation 73.01 against Sklar in the Wabash

Superior Court under cause number 85D01-1906-OV-470. An entry on the

same day in the chronological case summary (“CCS”) indicates that the court

set an initial hearing on the violation for June 24, 2019, and ordered Sklar to

appear. Sklar sent a letter, addressed to Wabash Superior Court Judge

Benjamin Vanderpool and dated June 23, 2019, requesting a continuance and

stating that he disputed the validity of the violation. A June 28, 2019 CCS

entry states that the court held the initial hearing, that Sklar did not appear, and

that prior to the hearing the court received ex parte correspondence from Sklar

disputing the ordinance violation. The same CCS entry indicated the matter

was set for a contested bench trial on August 5, 2019.

[3] A CCS entry, titled “Motion to Quash Filed,” indicates that the Town filed a

Motion to Quash Subpoenas on July 10, 2019, and another CCS entry indicates

Sklar filed an answer on July 16, 2019, to the Town’s motion and states

“Motion to Compel, Jury Trial Demanded.” Appellee’s Appendix Volume II

at 3. A CCS entry for July 22, 2019, indicates that the court vacated the

scheduled August 5, 2019 bench trial and scheduled a hearing on the Town’s

motion for August 14, 2019.

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 2 of 7 [4] On August 7, 2019, the Town filed a motion to dismiss which states it had

“received payment for the parking ticket(s) in question” and that “there no

longer exists an outstanding ordinance violation,” and the court granted the

Town’s motion. Id. at 9. On August 8, 2019, Sklar filed an Opposition to the

Motion to Dismiss and Motion to Reinstate Action that states “Jury Trial

Demanded” and, in contending that a due process and equal protection

violation had occurred, that “[a]fter the Town Court was dissolved in favor of

the Superior Court, Defendants have no ability to challenge any ordinance

violation unless the Town first decides to take enforcement action and only

after Defendant fails to pay said citation.” Id. at 10-11. It also states that the

Town “accepted Payment for the violation, thus a fine is still being paid, but

rather than by the Defendant, by an unknown third party” and that “by the

[T]own accepting another person’s payment for Defendant[’]s tickets, they are

essentially entering a guilty plea.” Id. at 11. The court denied Sklar’s motion to

reinstate action.

Discussion

[5] Sklar argues that the trial court erred “in allowing the Town to dismiss its case.”

Appellant’s Brief at 7. Without pointing to support in the record, he contends

that the “Town dissolved its Town Court in September 2010 and has not

designated a violations bureau or administrative body.” Id. at 8. He states:

“The Town claims that on August 6, 2019[,] an ‘anonymous’ payment arrived

by US Postal Service with $30[] Cash in a letter addressed to [the North

Manchester Police Department.” Id. (internal footnote omitted). He cites Ind.

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 3 of 7 Code § 9-30-11-11 and contends that the Town, in accepting payment,

“essentially entered a Judgment against [him] without his consent.” Id. at 10.

He claims: “The Town has every right to dismiss an action on its own, without

reason; however it cannot do so while secretly accepting a payment from an

‘anonymous source’. . . .” Id. He cites Ind. Code § 33-36-3-2 and asserts that

the “Town clerk-treasurer” did not receive any admission from him or a waiver

of his right to trial. 2 Id. at 11. He further contends that ordinance violations are

quasi-criminal actions and, without citing to the record or authority, claims that

the court had an obligation to make sure the payment was made knowingly. Id.

at 13.

[6] Although Sklar is proceeding pro se, such litigants are held to the same standard

as trained attorneys and are afforded no inherent leniency simply by virtue of

being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014)

(citing Matter of G.P., 4 N.E.3d 1158 (Ind. 2014)). This Court will “not become

an advocate for a party, or address arguments that are inappropriate or too

poorly developed or expressed to be understood.” Basic v. Amouri, 58 N.E.3d

980, 984 (Ind. Ct. App. 2016), reh’g denied.

1 Ind. Code § 9-30-11-1 states: “As used in this chapter, ‘judgment’ means a monetary penalty assessed for the violation of an ordinance that regulates parking violation.” 2 Sklar does not develop an argument with regard to, or point to any authority interpreting, Ind. Code § 33- 36-3-2, which provides that a “person charged with an ordinance or a code violation is entitled to a trial before a court as provided by law, unless the person waives the right to trial and enters an admission of the violation with the violations clerk. Upon an admission, the clerk shall assess and receive from the violator the amount prescribed by the schedule of civil penalties established under section 1 of this chapter.”

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 4 of 7 [7] We note Sklar’s failure to follow the requirements of the Appellate Rules.

Appellate Rule 46(A)(5) governs the statement of case and provides that “[p]age

references to the Record on Appeal or Appendix are required in accordance with

Rule 22(C).” Appellate Rule 46(A)(6) governs the statement of facts and

provides that “[t]he facts shall be supported by page references to the Record on

Appeal or Appendix in accordance with Rule 22(C).” Appellate Rule 46(A)(8)

governs the argument and provides that “[t]he argument must contain the

contentions of the appellant on the issues presented” and that “[e]ach contention

must be supported by citations to the authorities, statutes, and the Appendix or

parts of the Record on Appeal relied on, in accordance with Rule 22.” Appellate

Rule 22(C) governs references to the record on appeal and provides that “[a]ny

factual statement shall be supported by a citation to the volume and page where it

appears in an Appendix, and if not contained in an Appendix, to the volume and

page it appears in the Transcript or exhibits, e.g., Appellant’s App. Vol. II p. 5;

Tr. Vol. I, pp. 231-32.” Sklar does not include any citation to the record in his

statement of case, statement of facts, or argument, and we note that he did not

file an appendix. 3 See Ind. Appellate Rules 49, 50.

[8] Generally, a trial court’s order on a motion to dismiss is reviewed for an abuse

of discretion. See, e.g., Finke v. N. Ind. Pub. Serv. Co., 862 N.E.2d 266, 270-272

(Ind. Ct. App. 2006) (reviewing a dismissal of a cause of action under Trial

3 Although Sklar provides certain citations to an “Ex A-1,” “Exhibit A-2,” “Ex A-3,” and “Ex A-4” in his argument section, see e.g., Appellant’s Brief at 8, we observe that he did not submit a separate Appellant’s appendix containing such documents. See Ind. Appellate Rule 46(F).

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 5 of 7 Rule 41(A) for an abuse of discretion), trans. denied. An abuse of discretion

occurs if the trial court’s decision is against the logic and effect of the facts and

circumstances, or reasonable inferences therefrom, that were before the court,

or if the decision is without reason or based upon impermissible reasons or

considerations. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct.

App. 2004).

[9] “[I]t is well established that ‘prosecution for the violation of a city ordinance in

which a monetary penalty only is sought is a civil and not a criminal action.’”

Gates v. City of Indianapolis, 991 N.E.2d 592, 595 (Ind. Ct. App. 2013) (quoting

Boss v. State, 944 N.E.2d 16, 21 (Ind. Ct. App. 2011)), trans. denied. With regard

to the nature of the proceedings, the General Assembly has set forth procedures

for enforcing ordinances that are plainly civil in nature. Boss, 944 N.E.2d at 23.

An action to enforce an ordinance begins with a complaint and summons and

must conform to the Indiana Rules of Trial Procedure. See id. See also Ind.

Code § 34-28-5-1 (providing in part that actions under the chapter, which is

titled “Infraction and Ordinance Violation Enforcement Proceedings,” be

conducted in accordance with the Indiana Rules of Trial Procedure). Indiana

Trial Rule 41(A)(2) governs the voluntary dismissal of a cause of action at the

plaintiff’s instance “upon order of the court and upon such terms and

conditions as the court deems proper.”

[10] Our review of the record reveals that on June 14, 2019, the Town filed an

Information For Blocking Drive/Sidewalk/Alley, Ordinance Violation 73.01

against Sklar, and the court set an initial hearing on the violation and ordered

Court of Appeals of Indiana | Memorandum Decision 19A-OV-2157 | January 15, 2020 Page 6 of 7 Sklar to appear. On August 7, 2019, after the court had vacated the bench trial

and scheduled the August 14, 2019 hearing on the Town’s motion, the Town

filed a motion to dismiss, stating that it had “received payment for the parking

ticket(s) in question” and that “there no longer exists an outstanding ordinance

violation.” Appellee’s Appendix Volume I at 9. Sklar does not establish there

was an outstanding ordinance violation, show that he has been prejudiced, or

otherwise develop a cogent argument. See Zoller v. Zoller, 858 N.E.2d 124, 127

(Ind. Ct. App. 2006) (“A party waives any issue for which it fails to develop a

cogent argument or support with adequate citation to authority.”). After due

consideration of the record and proceedings before us, we affirm the trial court.

[11] Affirmed.

Baker, J., and Riley, J., concur.

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