365 365 v. City of East Chicago; Anthony Copeland, Mayor of the City of East Chicago; and Damon Carpenter, Chief of the East Chicago Fire Department, Appellees-Defendants. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] East Chicago Professional Firefighters Local 365, and David Mata, Jr., President of the East Chicago Professional Firefighters Local 365 (collectively The Firefighters) filed a two-count Class Action Complaint For Declaratory Judgment against the City of East Chicago, a municipal corporation, Mayor of the City of East Chicago Anthony Copeland, and Chief of the East Chicago Fire Department Damon Carpenter (collectively East Chicago). The Firefighters appeal from the court's order resolving issues concerning compensation for time off-duty that The Firefighters alleged was denied them by East Chicago.

[2] The dispositive issue presented in this appeal is as follows: whether the trial court's failure to carry out its role in the statutory procedure for the provision of notice to the members of the class of the class action and their options as members of the class amounts to reversible error. Concluding that it does, we reverse and remand for further proceedings.

Facts and Procedural History

[3] The facts and procedural history as it pertains to the dispositive issue follows. On March 7, 2022, The Firefighters filed a two-count complaint for declaratory judgment against East Chicago. The first count (the statutory claim) sought a declaration as to the meaning of Indiana Code section 36-8-4-9(a) (1985),¹ which mandates that Indiana firefighters receive twenty-four hours off duty every eight days in addition to other time off not pertinent to this appeal. The second count (the ordinance claim) sought a declaration as to City of East Chicago Local Ordinance 20-0020,² which provides that The Firefighters receive one hundred forty-four hours of off-duty time in calendar year 2021. The Firefighters asked for a declaration that the plain meaning of the statute and ordinance required East Chicago to provide The Firefighters with the time off, and if that meaning was undisputed, that East Chicago had not met those requirements. The time periods alleged were December 2019 to April 3, 2022 for the statutory claim and the calendar year 2021 for the ordinance claim.

[4] The Firefighters, who are eighty-four current and former East Chicago firefighters, moved for class certification on June 23, 2022. As noted by the trial court, The Firefighters did not file a separate petition for class certification under Indiana Trial Rule 23(A) and 23(B), and did not identify a class representative in their complaint. However, pursuant to Trial Rule 23(C), the court issued an order setting the matter for a hearing which was held on June 23, 2022.

[5] The trial court, in its July 29 Order, found that Trial Rule 23(B)(3) applied to the case and certified two damages classes: (1) firefighters employed by East Chicago from December 7, 2019 to present; and (2) firefighters employed by East Chicago in the year 2021. Appellants’ App. Vol. II, pp. 62 (T.R. 23(B) finding), 64 (class identification). The court also appointed David Mata, Jr., as the class representative. Id. at 64. The certified issue defined by the court is:

Whether [East Chicago] caused injury in fact to [The Firefighters] (Class A and Class B) resulting from [East Chicago's] alleged violation of Indiana Code [§ 36-8-4-9 et seq[.], as well as City of East Chicago Local Ordinance 20-0020, which injury resulted from the December 7, 2019 new staggered shift work schedule for the East Chicago Fire Department.

Id. at 65.

[6] The court observed that,

[w]hile the question of whether this will be an ‘opt in’ or an ‘opt out’ class action case remains unresolved at present, no evidence at the hearing presented demonstrated a large number of the [proposed] class wished not to participate in the litigation at issue, or has resolved their issues separately from this case, or that the body would not benefit from resolution of the issue presented.

Id. at 63. However, the court did not direct that formal notice of the class action and the options available to the purported class be given. Further motions were filed and hearings were held, none of which are pertinent to the dispositive issue, prior to the court entering its final appealable order at issue here.

[7] The court held a hearing to address The Firefighters’ Section 8 Petition ³ , which sought further relief based on the court's declaratory judgment entered on November 29, 2023 as to the statutory claim, in the form of compensatory damages, and explicitly stating injunctive relief was not being sought. Id. at 156-165 (Section 8 Petition). The Firefighters attached an exhibit showing the calculations they used in their requested damages amount. And The Firefighters asked for the court to lift its stay as to the ordinance claim, which it had not ruled upon due to a pending case in another court, which had since settled.

[8] During the hearing on The Firefighters’ Section 8 Petition, East Chicago suggested that the court fashion some sort of equitable remedy for the group of The Firefighters who remained employed by East Chicago. See id. at 64, 66, 67, 70, 74. The Firefighters argued against East Chicago's suggestion of equitable relief, stating that there was a legal remedy in the form of money damages. Id. at 82.

[9] The court's May 23, 2025 order addressed both the statutory claim and the ordinance claim. As to the ordinance claim, the court ordered that for the year 2021 only, The Firefighters were entitled to six reduction days equaling one hundred forty-four hours. Appellants’ App. Vol. III, p. 95.

[10] As for the Section 8 petition and the relief sought based on the declaratory judgment as to the statutory claim, the court found that The Firefighters had established that they suffered an injury in the form of loss of time off. Id. at 96. However, the court stated, “[t]he loss of meaningful and predictable time off seen only in the light of wages, fails to account for loss of child care, inability to work other jobs, inability to attend family events, children's school events, religious activities, or doctor's appointments, damage to family relationships and marriages, and the abandonment of hobbies and recreational activities.” Id. at 96. In effect, the court found The Firefighters’ Section 8 Petition insufficient.

[11] Next, the court noted the lack of a penalty provision in Indiana Code section 36-8-4-9 and proceeded to fashion an equitable remedy. The court stated that its order was a final order and retained jurisdiction to hold hearings should the parties disagree as to amounts owed to separated firefighters and for enforcement of its equitable relief. Appellants’ App. Vol. III, pp. 96, 98. The court denied The Firefighters’ request for prejudgment interest, citing the Tort Prejudgment Interest Statute.⁴

[12] The Firefighters filed a Motion To Correct Error, in part, raising the lack of class notification issue before the trial court. Appellants’ App. Vol. III, pp. 102-155 (motion); pp. 140-44 (class action notice argument).⁵ The court denied the motion on June 25, 2025, id. at 156-59, without specifically addressing the class notice argument. The Firefighters now appeal.

Discussion and Decision

[13] The Firefighters seek vacatur of the court's order on the ground that “the trial court's entry of final judgment [adjudicated] the rights of an Indiana Trial Rule 23(B)(3) class of plaintiffs without having adhered to the notification and opt-out procedures of Indiana Trial Rule 23(C)(2).” Appellants’ Br. p. 18. East Chicago does not deny that the notice procedure was not followed, but raises several procedural arguments in favor of barring our review; namely that: (1) The Firefighters may not raise this argument for the first time in a motion to correct error, thus the issue is waived for our review; (2) The Firefighters did not file a separate petition for class certification under Indiana Trial Rule 23(A) and 23(B), therefore, the notice requirement was discretionary and not mandatory; and (3) the class was represented at all times by the class representative and on one occasion the hearing room was filled with East Chicago firefighters.

A. Waiver—Trial Rule 59 Motion To Correct Error

[14] East Chicago contends that we are precluded from reviewing The Firefighters’ notice argument because it was raised for the first time in a Trial Rule 59 Motion To Correct Error. The general rule provides that “[a] party may not raise an issue for the first time in a motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). Yet “[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work manifest injustice.’ ” State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).⁶ Such extraordinary circumstances exist in this case as we now explain.

[15] The Firefighters could not have anticipated that the trial court would proceed to final judgment prior to following the procedure for class actions, taking evidence or swearing in witnesses. The matter was before the court on the issues of: (1) the Motion To Lift the Stay pertaining to consideration of the ordinance violation and request for declaratory judgment; and (2) the Section 8 Petition seeking further relief. At that stage, the trial court's role as to the Section 8 Petition was to determine its sufficiency and then, if sufficient, upon notice to East Chicago, require East Chicago to show cause why further relief should not be immediately granted. See I.C. § 34-14-1-8. Setting aside the issue whether a Trial Rule 59 Motion to Correct Error was the correct vehicle for doing so, The Firefighters, in effect, asked the court to revisit its order to correct the error of law. The issue was not ripe prior to this time because pursuant to Indiana Trial Rule 23(D)(2),

In the conduct of actions to which this rule applies, the court could make appropriate orders:

* * *

(2) requiring, for the protection of the members of the class or otherwise or the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

* * *

The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time․ (emphasis added).

The present scenario is far afield from the general waiver scenario, where a party allows the matter to proceed to trial and then raises an issue at the eleventh hour. We conclude that: (1) this issue is available for our review; and (2) the trial court abused its discretion by failing to address the issue of its failure to follow the notice procedures after certifying the class and identifying the sub-classes. This leads us to the further conclusion that the court's failure to direct that notice be provided to the class as set out by statute is reversible error. See Trial Rule 23(C)(2) .

B. Failure To File Petition For Class Action

[16] We also reject East Chicago's argument that we are precluded from reviewing this issue because of The Firefighters’ failure to file a formal petition for class certification. Under Trial Rule 23(C)(1) “[a]s soon as practicable after the commencement of an action brought as a class action, the court, upon hearing or waiver of hearing, shall determine by order whether it is to be so maintained.” Thus, the trial court is not required to wait for a party to file a petition for class certification before holding a hearing, or not, to determine if the class action may be maintained. Here, The Firefighters filed a Class Action Complaint For Declaratory Judgment and the trial court held a hearing at which East Chicago participated to determine the issue of class certification and identification. There is no impediment to our review of the issue on this ground.

[17] Next, after that hearing, the trial court concluded that Trial Rule 23 “(B)(3) is most applicable.” Appellants’ App. Vol. II, p. 62. Indiana Trial Rule 23(C)(2) provides in pertinent part that “[i]n any class action maintained under subdivision (B)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” (emphasis added). The Rule is explicit in its mandatory requirement that the trial court shall direct the class notification procedure. Thus, we reject East Chicago's argument that the notice requirement in this situation was discretionary. Therefore, the trial court's failure to direct the class notification procedure constitutes reversible error on this ground as well.

C. Class Action—Actual Notice Requirement

[18] East Chicago argues that the lack of actual notice is not reversible error because many firefighters were present for one, if not all, of the hearings held in this matter. We reject this argument as well.

[19] “ ‘Because Indiana Trial Rule 23 is based on Rule 23 of the Federal Rules of Civil Procedure, it is appropriate to consider federal court interpretations when applying the Indiana rule.’ ” Farno v. Ansure Mortuaries of Indiana, LLC, 953 N.E.2d 1253, 1269 (Ind. Ct. App. 2011) (quoting Chicago Title Ins. Co. v. Gresh, 888 N.E.2d 779, 782 (Ind. Ct. App. 2008)). Thus, we do so now. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the United States Supreme Court addressed the sufficiency of the notice which was provided to the class at issue there. In that discussion, the Supreme Court said that notice and an opportunity to be heard were fundamental requisites of the constitutional guarantee of procedural due process. Id. at 314. The Court further observed that “process which is mere gesture is not due process.” Id. at 315. And in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985), the Supreme Court held that minimal due process protections require a class action plaintiff to receive notice, plus an opportunity to be heard and participate in the litigation, whether in person or through counsel.”

[20] In Bowen v. Sonnenburg, 411 N.E.2d 390, 397 (Ind. Ct. App. 1980), a panel of this Court adopted “the federal interpretation of the language of [Rule 23].” In that case, we concluded that because the case proceeded under Trial Rule 23(B)(3), “the court further erred by not directing individual notice to all of the members of the class that could be identified through reasonable effort, and in failing to impose the expense of providing the same upon the plaintiffs.” Thus, the cases explicitly provide that in class actions brought under Trial Rule 23(B)(3) there is no substitute for actual notice to all of the members of the class that can be identified through reasonable effort. A court room of class members in attendance is not a substitute for that statutory requirement.

D. Result

[21] We conclude that the trial court erred as a matter of law by not directing the notice procedure to the members of the class who could be identified through reasonable effort. And because The Firefighters could not have anticipated the trial court would enter a final judgment without a trial or evidentiary hearing where witnesses were sworn and evidence was heard, they correctly brought the issue of lack of class notification to the trial court's attention as soon as it was identifiable. Therefore, we remand this matter to the trial court for further proceedings. We do not address the other issues raised in this appeal because we generally do not issue advisory opinions. See Rainey v. Ind. Election Comm'n, 208 N.E.3d 641, 644 (Ind. Ct. App. 2023) (same).

Conclusion

[22] We reject the argument that this lack of class notification is waived because it was raised in a Trial Rule 59 motion to correct error under these circumstances. And we conclude that the lack of notice to the class was reversible error. Therefore, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

[23] Reversed and remanded.

FOOTNOTES

1.   Indiana Code section 36-8-4-9(a) provides as follows:A member of a regularly organized and paid fire department may not be required to work more than an average of fifty-six (56) hours per week. However, if on September 1, 1985, a fire department was using sixty-three (63) hours as the maximum average number of hours a member could work a week, the department may continue to use that figure as the standard. A member may not be on duty more than twenty-four (24) consecutive hours and must be off duty at least twenty-four (24) consecutive hours out of any forty-eight (48) hour period. Each member is entitled to an additional twenty-four (24) consecutive hours off duty in every eight (8) day period.(emphasis added).

2.   City of East Chicago Local Ordinance 20-0020 § C(9) states in pertinent part as follows:Reduction Days—Line Firefighters shall be entitled to Six (6) Reduction days totaling one hundred forty-four (144) hours per year.

3.   Indiana Code section 34-14-1-8 of the Declaratory Judgment Act sets out the following procedure:Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application for further relief must be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be immediately granted.

4.   Ind. Code § 34-51-4-1, et seq. (1998).

5.   The CCS reveals that East Chicago did not respond to The Firefighters’ Motion To Correct Error in the interim between the filing date and the court's denial of the motion five days later.

6.   A limited exception has been recognized, allowing trial courts to revisit summary judgment orders after a motion to correct error has been filed raising a new legal issue. See Astral Elec. Co., Inc. v. Bob Wells Const. Co., Inc., 538 N.E.2d 986 (Ind. Ct. App. 1989) (citing former version of Indiana Code § 33-23-2-4 (2004) (retention of jurisdiction for 90 days after rendering judgment), “trial court has broad powers to correct, modify, or vacate its judgment, upon a showing of good cause” and there was no abuse of discretion when the court “considered and applied the correct law” on the motion to correct error), trans. denied; Contra, Fuel Fitness Winfield, Inc. v. Baloski, No. 45A03-1406-CC-190, at *4 (Ind. Ct. App. February 18, 2015)(mem.) (calling Astral's continued relevance into question given that it relied on now repealed Indiana Code section 33-1-6-3 and a prior version of Trial Rule 59, and given our Supreme Court's authority). However, given the procedural posture of the current matter, we conclude that The Firefighters could not have anticipated the entry of a final judgment, when they asked for a partial summary declaratory judgment, Appellants’ App. Vol. II, p. 76, followed by a Section 8 petition for further relief under the Declaratory Judgment Act, Ind. Code Chapter 34-14-1 (1998), seeking a determination of whether their petition was sufficient.

Crone, Senior Judge.

Pyle, J., and Kenworthy, J., concur.