LLC EDC LLC ADD LLC LLC v. Marion County Clerk, Johnson County Clerk, Hamilton County Clerk, and Wayne County Clerk, Appellees-Defendants (2025)

MEMORANDUM DECISION

Case Summary

[1] Appellants are adults and businesses residing and/or conducting business in Indiana who filed civil lawsuits in Marion, Johnson, Hamilton, and Wayne Counties. Appellants sued the county clerks of those counties (“Clerks”), claiming the Clerks unlawfully collected a fee for services not performed. The Clerks counterclaimed and requested a declaratory judgment stating the fee was statutorily mandated and collecting it was not unlawful. The trial court entered partial declaratory judgment for the Clerks and later dismissed all remaining claims. Appellants raise one issue: Did the trial court erroneously grant declaratory judgment to the Clerks? We affirm.

Facts and Procedural History

[2] “A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee ․ and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.” Ind. Trial Rule 3. Court fees “are generally those amounts paid to a public official, such as the clerk of the court, by a party for particular charges typically delineated by statute[.]” U.S. v. Idaho Dep't of Water Res., 508 U.S. 1, 8 (1993). Indiana Code Article 33-37 sets out various court fees applicable to proceedings in circuit, superior, probate, and city and town courts. Ind. Code § 33-37-1-1 (2011). At the time Appellants filed their complaint, Indiana Code Section 33-37-4-4 stated the clerk “shall collect a civil costs fee of one hundred dollars ($100) from a party filing a civil action.” I.C. § 33-37-4-4(a) (2017).¹ “In addition to the civil costs fee ․, the clerk shall collect” one or more enumerated fees if required by Indiana Code Chapter 33-37-5. I.C. § 33-37-4-4(b) (emphasis added). Taken together, these fees comprise the filing fee for a given action.

[3] Among the additional fees a clerk was mandated by Chapter 33-37-5 to collect from the party filing a civil action were: (1) “a service of process fee of twenty-eight dollars ($28) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff,” I.C. § 33-37-5-15(b) (2017) (emphasis added);² and (2) “a service fee of ten dollars ($10) for each additional defendant ․ named other than the first named defendant,” I.C. § 33-37-5-28(b)(1) (2017) (emphasis added).³ Before July 1, 2017, the statute required clerk offices to collect the $10 service fee for additional defendants except when service of process was made by publication. I.C. § 33-37-5-28(c) (2006) (“This section does not apply to an action in which service is made by publication in accordance with Indiana Trial Rule 4.13.”).

[4] For many years, parties filing a new civil case in Indiana counties had the option to elect service of process on the responding party by either the local county clerk via certified mail, the local county sheriff via personal service, or publication. See T.R. 4.11; 4.12; 4.13. In 2015 and 2016, the Hamilton, Johnson, and Marion County Clerks implemented voluntary electronic filing in their counties, which became mandatory for all civil filings by May 2017. See T.R. 86–88; E-filing Implementation Schedule for Indiana Trial Courts, https://www.in.gov/courts/files/efiling-implementation-schedule.pdf (last visited January 2, 2025) [https://perma.cc/Z4EN-SDUD].⁴ When filing electronically, “the User is responsible for service of process.” T.R. 86(B)(2)(b). As the availability of e-filing grew,⁵ Section 33-27-5-28(c) was amended effective July 1, 2017, after which clerk offices no longer collected the $10 service fee in a civil action with additional defendants where service of process was made by publication or through the Indiana electronic filing system. I.C. § 33-37-5-28(c) (2017).

[5] On November 24, 2017, Appellants filed their complaint, seeking an accounting and refund of certain payments made to the Clerks for services allegedly not performed. In their complaint, Appellants made two separate but related claims. One, they alleged the four Clerks unlawfully collected “the $10 per defendant certified mail fee” in cases where the plaintiff elected and paid for service of process by county sheriff rather than by certified mail. Appellants’ App. Vol. 2 at 26. And two, they alleged the Hamilton, Johnson, and Marion County Clerks unlawfully collected “the $10 service of process fee” in e-filed cases from the time they implemented voluntary e-filing until July 1, 2017. Id. at 28. Appellants maintained charging these “unearned service of process fees” was contrary to Indiana Code Sections 33-37-3-6 and 5-7-2-4 ⁶ because service by certified mail was already included in the filing fee and the Clerks were not performing service of process when the sheriff or the plaintiff himself was doing so. Id. at 26–27 (capitalization omitted). The Clerks counterclaimed for declaratory judgment, arguing collection of this statutory fee was mandatory and noting clerks perform many services unrelated to service of process so the service fee was not a service of process fee.⁷

[6] On March 26, 2019, the trial court entered judgment in part on the Clerks’ counterclaim for declaratory judgment. The trial court concluded Section 33-37-5-28 was unambiguous, noting the statute “simply requires a $10 fee for additional defendants.” Appellant's App. Vol. 2 at 23. Finding “[c]lerks execute and perform services for civil filers, and the statutes prescribe what filers pay” for those services, the trial court issued declaratory judgment for the Clerks for service fees collected in all civil cases before July 1, 2017, and in all civil cases after June 30, 2017, that did not involve service by publication or by electronic filing. Id.⁸ The court did not enter final judgment. Appellants took no further action.

[7] On January 11, 2024, the Clerks moved to dismiss the case for Appellants’ failure to prosecute, to which Appellants responded with a notice of no objection and a request for the court to enter final judgment. On February 26, 2024, the trial court dismissed the case pursuant to Trial Rule 41(E). Appellants appeal the trial court's partial declaratory judgment.

The Clerks did not unlawfully collect the $10 service fee mandated by Indiana Code Section 33-37-5-28(b).

[8] Appellants assert the “$10 per additional responding party ‘service fee’ provided for by [Section 33-37-5-28] is for service of process upon additional defendants rather than a fee for the clerk's general clerical services.” Appellants’ Br. at 8. Accordingly, Appellants allege they paid for service of process twice and the Clerks unlawfully collected the service fee when Appellants chose service of process by sheriff or e-filed their cases. The Clerks disagree, arguing a “service fee is distinct from a service of process fee.” Appellees’ Br. at 11. And the Clerks point out the mandatory language of the statutes requiring them to collect the service fee.

[9] We review issues of statutory interpretation de novo. KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017). When the parties ask us to interpret a statute's meaning, our primary goal is to determine and follow the legislature's intent. Matter of Supervised Est. of Kent, 99 N.E.3d 634, 638 (Ind. 2018). The best evidence of this intent is the statutory language itself, which, when given its plain and ordinary meaning, should apply “in a logical manner consistent with the statute's underlying policy and goals.” Cubel v. Cubel, 876 N.E.2d 1117, 1120 (Ind. 2007). We examine the statute as a whole, avoiding “interpretations that depend on selective reading of individual words that lead to irrational and disharmonizing results.” ESPN, Inc. v. Univ. of Notre Dame Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016).

[10] Where statutory language is clear and unambiguous, we apply words and phrases in their plain, ordinary, and usual sense. Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015). “An unambiguous statute must be held to mean what it plainly expresses, and its plain and obvious meaning may not be enlarged or restricted.” Ind. Dep't of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994). The language employed by the legislature in Indiana Code Article 33-37 is clear. The original court costs fee covers service of process by certified mail for the first named defendant. See I.C. §§ 33-37-3-6; 33-37-4-4. In addition, there is a “service of process fee” for service of process by sheriff and a distinct “service fee” when a plaintiff names more than one defendant. See I.C. §§ 33-37-5-15, -28. Despite Appellants’ best efforts in their complaint and appellate brief to muddy the distinction by calling the Section 33-37-5-28 service fee a “certified mail fee,” see Appellants’ App. Vol. 2 at 26, or “the $10 service of process fee,” see id. at 28; or by baldly asserting the “plain meaning of the term ‘service’ in this statute is ‘service of process,’ ” Appellants’ Br. at 8, the legislature knows how to say “service of process fee” when it means “service of process fee.” But it did not do so in Section 33-37-5-28, and we will not read that language into the statute. See Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 215 (Ind. Ct. App. 1999) (stating language employed in a statute is deemed to have been used intentionally), trans. denied.

[11] Even more basically, Appellants do not challenge the statute itself, only the Clerks’ application of it. Whatever the purpose of the Section 33-37-5-28 service fee, the legislature has required the Clerks to collect it in all cases with additional defendants except those where service is by publication and those e-filed after July 1, 2017. The Clerks do not decide on a case-by-case or county-by-county basis what fees to collect for new civil actions; the fees are set by statute, and all county clerks “shall” collect them. See I.C. § 33-37-4-4; see also Indiana Trial Court Fee Manual 2024 at 8–9, https://www.in.gov/courts/iocs/files/courtmgmt-pubs-trial-court-feemanual.pdf (last visited January 2, 2025) [https://perma.cc/KAY2-ZQ3Z].⁹

[12] Section 33-37-5-28 required the Clerks to collect the service fee for civil cases with more than one named defendant when service of process was made by certified mail or by sheriff and, until July 1, 2017, when service of process was made through e-filing. Appellants’ complaint did not allege the Clerks collected the service fee in cases served by publication or in cases e-filed after July 1, 2017. Therefore, the Clerks complied with the statutes concerning court fees and did not unlawfully collect any fees they were not mandated to collect.

Conclusion

[13] The $10 service fee for additional named defendants is distinct from and in addition to any applicable service of process fee, and Appellants were not charged twice for the same service or charged for services not provided by the Clerks. The trial court's grant of declaratory judgment for the Clerks was proper.

[14] Affirmed.

FOOTNOTES

1.   For purposes of this appeal, “clerk” refers to the clerk of a circuit, superior, or probate court. See I.C. §§ 33-37-1-2(1) and 33-32-2-1.

2.   Prior to July 1, 2017, the fee for service of process by sheriff was $25 and it was collected by the sheriff directly. The General Assembly amended the statute in 2017 by increasing the fee for service of process by sheriff to $28 and requiring clerk offices to collect the fee. Compare I.C. § 33-37-5-15(a) (2015), with I.C. § 33-37-5-15(a) (2017). Neither this nor subsequent amendments to this section affect the case before us.

3.   Court costs fees include service of process by certified mail on the first named defendant. I.C. § 33-37-3-6 (“Court costs fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.”). The wording of this statute is somewhat confusing, as it refers to fees “under this chapter”—meaning Indiana Code Chapter 33-37-3—when the actual fees (and not just “general court costs provisions”) are found in Indiana Code Chapters 33-37-4 and -5. Nonetheless, in context, it appears this section applies to the entire article.

4.   Voluntary e-filing in Hamilton Circuit and Superior Courts began on July 29, 2015. It became mandatory for subsequent filings on July 1, 2016, and for all filings on January 1, 2017.Voluntary e-filing in Johnson Circuit and Superior Courts began on September 26, 2016. It became mandatory for subsequent filings on November 25, 2016, and for all filings on May 5, 2017.Voluntary e-filing in Marion Circuit and Superior Courts began on October 28, 2016. It became mandatory for subsequent filings on December 27, 2016, and for all filings on May 5, 2017.E-filing in Wayne County became available in 2019 and is not at issue in this case.

5.   Hamilton County was the first county in Indiana to implement e-filing. By July 1, 2017, at least forty Indiana counties had mandatory e-filing. E-filing Implementation Schedule at 4–6, [https://perma.cc/Z4EN-SDUD].

6.   “It shall be unlawful to charge, tax up or receive, or permit to be charged, taxed up or received, under claim or color of office or official right, any fee or sum of money for or on account of services that were not actually executed or rendered.” I.C. § 5-7-2-4 (1883).

7.   Appellants styled their complaint as a class action, but on the Clerks’ motion, the trial court stayed discovery on class status until the declaratory judgment was decided. The action was never certified as a class action pursuant to Trial Rule 23.

8.   The trial court denied declaratory judgment for service fees collected in civil cases after June 30, 2017, that involved service by publication or by electronic filing, stating the parties “plead different facts regarding whether Clerks charged the $10 fee on or after July 1, 2017.” Appellant's App. Vol. 2 at 22. But the Appellants’ complaint made no allegations regarding publication, and the allegations as to service through e-filing only alleged wrongdoing prior to July 1, 2017, so it does not appear this was an issue in controversy. See, e.g., id. at 29 (“[I]t appears that the Marion County Clerk has been collecting [service fees] from initial electronic filers but not performing the service from October 28, 2016 to July 1, 2017.”).

9.   This manual lists the statutory authority and amount of fees and costs for various types of cases (criminal, civil, juvenile, small claims, etc.). The filing fees for a civil action include the civil filing fee of $100, document storage fee of $5, automated record keeping fee of $20, public defense administration fee of $5, judicial insurance adjustment fee of $1, judicial salaries fee of $20, court administration fee of $5, and pro bono services fee of $1, for a total base fee of $157. The chart also includes contingent fees, including a $75 jury fee for Civil Tort and Civil Plenary cases, the sheriff's service of process fee of $28, and the civil action service fee “of $10 for each additional defendant named other than the first named defendant.” Trial Court Fee Manual at 8 [https://perma.cc/KAY2-ZQ3Z].

Kenworthy, Judge.

Judges Foley and DeBoer concur. Foley, J., and DeBoer, J., concur.