Matthew E. Koch v. The Vanderburgh County Treasurer (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 05 2018, 9:15 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 Matthew E. Koch Bunker Hill, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew E. Koch, April 5, 2018 Appellant-Petitioner, Court of Appeals Case No. 17A-MI-3018 v. Appeal from the Vanderburgh Superior Court The Vanderburgh County The Honorable Leslie C. Shively, Treasurer, Judge Appellee-Respondent Trial Court Cause No. 82D01-1702-MI-608

Altice, Judge.

Case Summary [1] Matthew E. Koch, pro se, filed a petition against the Vanderburgh County

Treasurer (the Treasurer) to compel access to public records. The parties filed

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cross motions for summary judgment, and the trial court granted summary

judgment in favor of the Treasurer. [2] We affirm.

Facts & Procedural History [3] Koch is serving a thirty-year prison sentence for committing robbery,

kidnapping, and battery in 2008. His grandfather Norman W. Koch (Norman)

passed away in 2005, and Koch expected to eventually inherit through a trust

that would vest at the passing of Koch’s grandmother Pauline A. Koch

(Pauline). In March 2015, Koch learned that Pauline had died nearly five years

earlier. Koch then immediately began investigating the disposition of his

expected inheritance. He sought documents from, among others, the

Vanderburgh County Clerk, the Vanderburgh County Recorder, the

Vanderburgh County Assessor, and Old National Bank. Koch was unable to

discover any valid trust instrument under which he was a beneficiary, and his

aunt expressly wrote to him that his grandparents’ estates were handled by will

and that no trust was left for him. Yet Koch continued to believe that members

of his family were concealing and withholding a trust account from him. [4] On December 27, 2016, from the Miami Correctional Facility, Koch mailed an

access to public records request to the Treasurer, seeking copies of any and all

inheritance tax records relating to Norman that the Treasurer possessed. In his

request, Koch noted that he was Norman’s biological grandson and that he

believed himself to be a defrauded beneficiary.

Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018 Page 2 of 6 [5] Candance Nance, a First Deputy Treasurer, received the records request on

January 3, 2017, and responded by letter the following day with a denial of the

request. In this letter to Koch, Nance first set out the law related to disclosure

of inheritance tax information. She explained that Ind. Code § 6-4.1-12-12

forbade the disclosure of any information related to inheritance tax files except

in limited instances set out in the statute. Nance noted two of the statutory

exceptions in which disclosure is allowed – (1) to the attorney listed on the

inheritance tax return and (2) to a devisee, an heir, a successor in interest, or a

surviving joint tenant of the decedent for whom an inheritance tax return was

filed or upon the receipt of a written request, to an agent or attorney of a

devisee, an heir, a successor in interest, or a surviving joint tenant of the

decedent. See I.C. § 6-4.1-12-12(a)(10), (11). After setting out the law, Nance

stated in the letter:

I have spoken with the Department of Inheritance and the Public Access Counselor, both advised me to quote you the law. Based on this information I cannot send you any record we maintain. The Department of Inheritance has also informed me that you have been in contact with them for the same information. I am to let all correspondence go through them.

Appendix at 16. [6] On January 20, 2017, Koch filed in the Vanderburgh Superior Court a petition

to compel access to public records. In its answer, the Treasurer asserted a

number of affirmative defenses, including that pursuant to I.C. § 6-4.1-12-12 the

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requested records are confidential and may not be produced to Koch. The

parties eventually filed cross motions for summary judgment. [7] Included within the Treasurer’s designated evidence was Nance’s affidavit,

dated July 10, 2017. In her affidavit, Nance reiterated that the records

requested by Koch are confidential and may not be produced to him.

Moreover, in paragraph 6, Nance averred that the Treasurer’s Office does not

have any documents in its possession relative to Norman’s estate. [8] On August 8, 2017, the trial court held a telephonic hearing regarding the

summary judgment motions. Koch has not provided us with a transcript, but

the CCS reveals that at the conclusion of the hearing, the trial court granted the

Treasurer ten days to amend its answer. The Treasurer filed an amended

answer two days later, adding “Mistake” to the list of affirmative defenses.

Appendix at 25. Koch responded with a motion to strike “materials concerning

the affirmative defense of mistake from the record.” Id. at 27. Koch argued

that the affirmative defense was not pled with the specificity as required by

Indiana Trial Rule 9(B)1 and, therefore, should be stricken. He also challenged

Nance’s affidavit to the extent that it indicated that none of the requested

documents were in the possession of the Treasurer’s Office.

1 T.R. 9(B) provides in relevant part: “In all averments of fraud or mistake, the circumstances constituting fraud and mistake shall be specifically averred.”

Court of Appeals of Indiana | Memorandum Decision 17A-MI-3018 | April 5, 2018 Page 4 of 6 [9] The trial court held a telephonic hearing on October 26, 2017, for which we

have not been provided with a transcript. On November 20, 2017, the trial

court issued an order denying Koch’s motion to strike and taking the summary

judgment motions under advisement. Thereafter, on November 28, 2017, the

trial court issued an order summarily granting summary judgment in favor of

the Treasurer.

Discussion & Decision [10] We begin by observing that the Treasurer has not filed an appellee’s brief. As a

result, we will not undertake the burden of developing arguments on the

Treasurer’s behalf and will reverse if Koch establishes prima facie error. See

Duty v. CIT Group/Consumer Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017).

Prima facie, in this context, means at first sight, on first appearance, or on the

face of it. Id. This standard, however, “does not relieve us of our obligation to

correctly apply the law to the facts in the record in order to determine whether

reversal is required.” Wharton v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015). [11] On appeal, Koch argues that the trial court erred by denying his motion to

strike the newly added affirmative defense of mistake.2 Further, he argues that

2 Koch also baldly asserts that paragraph 6 of Nance’s affidavit must be stricken, but he provides no cogent argument in this regard. Indiana Trial Rule 56(E) provides in part: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Paragraph 6 of the affidavit is clearly based on Nance’s personal knowledge and addresses a matter with which she is competent to testify. Moreover, the fact to which Nance avers – that the Treasurer’s Office does not possess the requested documents – is relevant and admissible evidence.

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even if not stricken, Nance’s original letter and her subsequent affidavit

contradict each other and present a genuine issue of material fact regarding

whether the Treasurer has possession of the requested documents. [12] Whether the Treasurer properly amended the complaint to allege the defense of

mistake is of no moment here. The designated evidence plainly establishes that

the Treasurer does not possesses the documents sought by Koch. Indeed,

Nance averred, “the Vanderburgh County Treasurer’s Office does not have any

documents in their possession relative to the Estate of Norman Koch.”

Appendix at 15. Contrary to Koch’s assertion on appeal, the letter that Nance

originally sent to him did not indicate that the Treasurer actually possessed the

requested records. Rather, the letter simply advised Koch – a prolific filer in the

county – of the general law regarding the confidentiality and disclosure of

inheritance tax documents. Based on this law, Nance indicated that she could

not send Koch “any record we maintain.” Id. at 16. [13] Because it is axiomatic that the Treasurer cannot produce records that it does

not possess, the trial court properly granted summary judgment in favor of the

Treasurer. See, e.g., Quirk v. Delaware County, 91 N.E.3d 1008, 1013 (Ind. Ct.

App. 2018) (summary judgment is appropriate where the designated evidence

shows there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law). [14] Judgment affirmed. [15] Najam, J. and Robb, J., concur.

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