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Date: 01-28-2019

Case Style:

City of Hammond v. John Rostankovski

Case Number: 18A-OV-1891

Judge: Patricia A. Riley


Plaintiff's Attorney: Kristen D. Hill

Defendant's Attorney: Sophia J. Arshad

Geoffrey G. Giorgi


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Rostankovski is the owner of residential rental property located on Spruce
Street, in Hammond, Indiana. On October 24, 2017, Hammond filed a
Complaint against Rostankovski in the Hammond City Court (City Court),
alleging a violation of Hammond’s zoning ordinance. Rostankovski filed a
motion to dismiss Hammond’s Complaint, to which Hammond responded. On
April 20, 2018, after conducting a hearing, the City Court issued an Order,
concluding that Hammond’s Complaint was barred by laches and consequently
dismissed the Complaint.
[5] On April 30, 2018, Hammond filed a motion for trial de novo with the Lake
County Superior Court (Superior Court), which was denied on May 7, 2018. In
its order, the Superior Court found:
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 3 of 8

Motion for Trial De Novo is denied. Trial De Novo Rule 2A1 states, “a defendant who has statutory right to appeal . . .” It does not contemplate appeal by anyone other than the defendant.
However, if [Hammond] is of the opinion it has a right to pursue appeal pursuant to [Ind. Code §] 33-35-5-10, [Hammond] shall file an appeal in conformity with the requirements of the statute within 30 days.
(Appellant’s App. Vol. II, p. 48). In accordance with the Superior Court’s
order, on May 30, 2018, Hammond filed its petition for appellate review of the
judgment issued by the City Court pursuant to I.C. § 33-35-5-10 with the
Superior Court. The following day, on May 31, 2018, the Superior Court
dismissed the appeal for lack of subject matter jurisdiction. In its Order, the
Superior Court concluded, in pertinent part:
Now [Hammond] urges that pursuant to [I.C. § 33-35-5-10]1 it may appeal, pursuant to the statute regarding the appeal of a civil case from Hammond City Court. However, once again, the court must rule it has no subject matter jurisdiction.
Although the statute in question does allow for any party to appeal a civil case in the manner prescribed, and ordinance cases are considered civil in nature, the problem here is one of conflict of laws. While the statute allows for civil appeals by any party, the De Novo Rules do not allow for the appeals of [o]rdinance [v]iolations by [Hammond]. In such a situation of conflict, the

1 In its Order, the Superior Court referred to I.C. § 35-33-5-10. However, we assume the Superior Court transposed the Title and Article numbers as I.C § 35-33 deals with the preliminary proceedings in criminal law.
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 4 of 8

more specific law will control. See Economy Oil Corporation v. Indiana Department of Revenue, 321 N.E.2d 215, 218 (Ind. Ct. App. 1974). As the De Novo Rules address ordinances specifically, and the statute addresses civil cases generally, the De Novo Rules, which are propagated by our Supreme Court, which also entitled them to preference in event of conflict of law, must control.
(Appellant’s App. Vol. II, p. 4). On June 29, 2018, Hammond filed a motion to
correct error which the Superior Court denied without a hearing on July 11,
[6] Hammond now appeals. Additional facts will be provided if necessary.
[7] Hammond contends that the Superior Court erred when it dismissed its appeal
for lack of subject matter jurisdiction. Implicitly no longer pursuing an appeal
de novo, Hammond maintains that, as an issue of first impression, Ind. Code
section 33-35-5-10 remains a valid procedural avenue to appeal an adverse civil
[8] The standard of review applicable to a court’s grant or denial of a motion to
dismiss pursuant to Trial Rule 12(B)(1) is a function of what occurred in the
trial court. Outboard Boating Club of Evansville, Inc. v. Ind. State Dept. of Health,
952 N.E.2d 340, 343 (Ind. Ct. App. 2011), trans. denied. Where, as here, the
relevant facts before the trial court are not in dispute, then the question of
subject matter jurisdiction is purely one of law and no deference is afforded to
the trial court’s conclusion. Id.
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 5 of 8

[9] Pursuant to Ind. Code section 33-35-2-3, a city court has “jurisdiction of all
violations of the ordinances of the city.” An appeal from a city or town court
acting in accordance with its jurisdictional power enumerated in I.C. § 33-35-2
3 is statutorily governed by I.C. § 33-35-5-9(a), which stipulates that “an appeal
from a judgment of a city court may be taken to the circuit, superior, or probate
court of the county and tried de novo.” Our supreme court has promulgated the
Indiana Trial De Novo rules which specifically govern the procedural
requirements after a party has elected a Trial De Novo appeal as permitted by
statute. Indiana Trial De Novo Rule 2(A) addresses the de novo procedure
following a judgment of ordinance violation in City Court as follows:
(1) A defendant who has a statutory right to an appeal after a trial for an infraction or ordinance violation in a city or town court may request and shall receive the trial de novo as provided in this rule.
(2) A city or town court defendant who admitted committing an infraction or ordinance violation and therefore had no trial in city or town court may request as provided in this rule that the circuit or superior court either:
(a) Permit the defendant to withdraw the admission and have a trial de novo; or
(b) Provide a trial de novo on the sanctions.
[10] Accordingly, although at first glance I.C. § 33-35-5-9 permits Hammond to
appeal the adverse judgment to the Superior Court and try the Complaint de
novo, Indiana’s procedural De Novo rules explicitly advance this right only to ‘a
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 6 of 8

defendant.’ As Hammond was not the defendant, but rather the plaintiff,
before the City Court, it cannot avail itself of the permissive right of an appeal
de novo before the Superior Court pursuant to I.C. § 33-35-5-9.
[11] Focusing on I.C. § 33-35-5-10, Hammond posits that the statute grants it a
“non-de novo” appellate review of a civil action originating in the City Court.
(Appellant’s Br. p. 11). Indiana Code section 33-35-5-10 provides, in pertinent
(a) A party in a civil action who desires to take an appeal from the city court of the three (3) cities having the largest populations in a county having a population of more than four hundred thousand (400,000) but less than seven hundred thousand (700,000) shall file a bond, to the approval of the city court, within thirty (30) days after the date of rendition of final judgment, and the motion to correct errors within ten (10) days after the rendition of final judgment. The transcript and motion shall be filed in the court to which the appeal is taken within thirty (30) days after the motion has been signed by the court.
(b) All errors saved shall be reviewed as far as justice warrants, and for that purpose, a complete transcript of all the evidence is not required. An error occurring during the trial, not excepted to at the time, may be made available upon appeal by setting it forth in a motion for a new trial. . . .
Hammond complied with the procedural standing requirements to proceed
under the statute. It provided population statistics, tendered a bond approved
by the City Court, and timely filed the transcript and motion with the Superior
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 7 of 8

[12] Quoting Economy Oil Corporation for its proposition that the specific law of the
Indiana De Novo Rules controlled over the more general statute, the Superior
Court dismissed Hammond’s appeal for lack of subject matter jurisdiction. We
disagree. While I.C. § 33-35-5-9, in combination with Indiana Trial De Novo
Rule 2, limits an appeal from a judgment of a City Court to a De Novo trial for
defendants only, no such limitations are incorporated in I.C. § 33-35-5-10.
Rather, after satisfying the procedural standing requirements, “a party in a civil
action” can have its “errors reviewed” by “the court to which the appeal is
taken.” I.C. § 33-35-5-10. As a violation of a zoning ordinance is undeniably
civil in nature, and Hammond satisfied the procedural prerequisites of
population, bond, and transcript, Hammond is statutorily allowed to proceed
with its appeal before the Superior Court.
[13] Even though both statutes at issue—I.C. § 33-35-5-9 and I.C. § 33-35-5-10—
relate to the same general subject matter, and thus are in pari materi, the statutes
can be construed together to produce an harmonious system. See Econ. Oil
Corp., 321 N.E.2d at 218. Specifically, both statutes govern the appeals of city
courts; however, where I.C. § 33-35-5-9 focuses on De Novo appeals and is
further limited by the Indiana De Novo Trial Rules promulgated by our supreme
court, I.C. § 33-35-5-10, on the other hand, focuses on regular—non-De Novo—
civil appeals from qualifying city courts. Thus, although the same general
subject matter is covered by both statutes, their individual focus and
requirements are different and therefore do not encroach but rather can be
harmonized. See Econ Oil Corp., 321 N.E.2d at 218 (When two statutes on the
Court of Appeals of Indiana | Opinion 18A-OV-1891 | January 23, 2019 Page 8 of 8

same subject must be construed together, the court should attempt to give effect
to both). Deciding otherwise, and precluding Hammond to avail itself of an
appellate avenue under I.C. § 33-35-5-10—as urged by Rostankovski—would
leave Hammond without any remedy for relief from a presumedly erroneous
negative judgment. Accordingly, we reverse the Superior Court’s Order and
remand for further proceedings.

Outcome: Based on the foregoing, we conclude that the Superior Court erred by
dismissing Hammond’s appeal for lack of subject matter jurisdiction.

Reversed and remanded for further proceedings.

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