State of Ind., Consolidated City of Indianapolis/Marion Co. v. El Rodeo 11, Llc. , 25 N.E.3d 781 ( 2015 )


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  • ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
    Gregory F. Zoeller                                         Karen Huelskamp
    Attorney General of Indiana                                Indianapolis, Indiana
    Andrew A. Kobe
    Deputy Attorney General
    Kyle Hunter
    Deputy Attorney General                                              Jan 29 2015, 9:58 am
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    State of Indiana, Consolidated                            January 29, 2015
    City of Indianapolis/Marion                               Court of Appeals Cause No.
    County, the Metropolitan Law                              49A05-1406-MI-257
    Enforcement Agency, the                                   Appeal from the Marion Superior
    Indiana State Police, the Marion                          Court, The Honorable David. A.
    Shaheed, Judge
    County Prosecutor, and the
    Cause No. 49D01-1311-MI-0432384
    Indiana Department of Revenue,
    Appellants,
    v.
    El Rodeo #11, LLC,
    Appellee.
    Mathias, Judge.
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                  Page 1 of 10
    [1]   The State of Indiana, the Consolidated City of Indianapolis/Marion County,
    the Metropolitan Law Enforcement Agency, the Indiana State Police, the
    Marion County Prosecutor, and the Indiana Department of Revenue
    (collectively “Marion County”) appeal the Marion Superior Court’s order
    granting El Rodeo #11’s motion to return improperly seized funds. Specifically,
    Marion County argues that the trial court erred when it ordered Marion County
    to return El Rodeo’s funds because the funds were seized by and are being held
    in the Tippecanoe County Prosecutor’s Office.
    [2]   We reverse and remand for proceedings consistent with this opinion.
    Facts and Procedural History
    [3]   On November 10, 2012, El Rodeo #11, which is located in Greenfield, Indiana,
    was completely destroyed by a fire. Appellant’s App. p. 58. El Rodeo #11
    submitted a claim for property losses to its insurance company, and the claim
    was settled for $1,152,570.73. El Rodeo #11 deposited the insurance proceeds
    into an account at Chase Bank, which was opened specifically to receive those
    funds. The funds were eventually withdrawn from the Chase account and
    transferred to an account at PNC Bank, which also held only the insurance
    proceeds. El Rodeo #11 paid certain construction costs from those funds, and
    in November 2013, the PNC account had a balance of $967,840,81.
    [4]   Prior to November 18, 2013, the Tippecanoe County Prosecutor’s Office served
    a warrant for seizure of El Rodeo #11’s funds in the PNC Bank account. The
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 2 of 10
    bank issued a cashier’s check in the amount of $967,840.81 and gave the check
    to the Tippecanoe County Prosecutor’s Office.
    [5]   On November 18, 2013, the Marion Superior Court, at the request of the
    Marion County Prosecutor’s Office, issued an order to freeze El Rodeo #11’s
    PNC bank account. The order froze the PNC Bank account’s assets, but the
    account balance was zero.
    [6]   Shortly thereafter, Marion County filed a Complaint for Forfeiture demanding
    judgment against numerous defendants for forfeiture of certain funds held by
    the defendants at various banks. El Rodeo #11 was named as a defendant in the
    complaint. The complaint alleged that the funds “had been furnished or w[ere]
    intended to be furnished in exchange for a violation of a criminal statute, or
    [are] traceable as proceeds of a violation of a criminal statute, in violation of
    Indiana law, as provided in I.C. 34-24-1-1.” 
    Id. at 32.
    [7]   The forfeiture complaint was amended on December 3, 2013, and specifically
    named El Rodeo #11’s “$967,840.81 in U.S. Currency Located in PNC Bank,
    Acct. ending in 2997” as a defendant. 
    Id. at 37.
    Marion County also added a
    second count to the complaint and alleged that the named defendants “have
    participated in, constructed, and continued to operate a corrupt enterprise,
    through a pattern of racketeering activity, as defined in I.C. 34-24-2-1.” 
    Id. at 38.
    [8]   El Rodeo #11 filed an answer and affirmative defenses but also filed a “Motion
    to Return Insurance Proceeds Improperly Seized.” In response, Marion County
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 3 of 10
    filed a motion to dismiss El Rodeo #11 from its forfeiture complaint because
    the Tippecanoe County Prosecutor’s Office has possession of El Rodeo #11’s
    funds and has also filed a forfeiture complaint against El Rodeo #11.
    [9]    On May 7, 2014, the trial court held a hearing on El Rodeo #11’s motion for
    return of insurance proceeds and Marion County’s motion to dismiss. A
    representative of the Tippecanoe County Prosecutor’s Office was also present at
    the hearing. Marion County argued that El Rodeo #11’s motion should be
    denied because Marion County had “nothing to give back to [El Rodeo #11]
    because the funds are physically in Tippecanoe County.” Tr. p. 22. Marion
    County also argued that because identical forfeiture proceedings were pending
    in both Marion and Tippecanoe Counties, pursuant to Trial Rule 12(B)(8), the
    Marion County proceedings should be dismissed. Marion County conceded
    that the funds at issue were insurance proceeds but would not agree that the
    funds were not subject to forfeiture.1 Tr. p. 35.
    [10]   However, Marion County implied that the funds could be released to El Rodeo
    #11 if it would agree that Marion County could “add El Rodeo #11 the actual
    property and business to its forfeiture complaint.” Tr. p. 37. Marion County
    proposed that the funds would be released in installments “as long as [El Rodeo
    #11] provide[s] proper accounting for what” the funds are spent. Tr. p. 38.
    Marion County also stated that it could not “compel [Tippecanoe County] to
    give that money over. We had talked about the offer, I believe that can be done
    1
    Marion County argued that proceeds of insurance are forfeitable if they were the proceeds of wrongdoing,
    i.e. if the policy was purchased with illegally obtained funds. Tr. p. 42.
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                      Page 4 of 10
    through mutual cooperation, if everyone is agreeable to that solution.” 
    Id. El Rodeo
    #11 responded that the funds should have never been seized and Marion
    County was “in no position to demand any kind of terms and conditions for the
    release of the money.” Tr. p. 39.
    [11]   The trial court denied Marion County’s motion to dismiss. The court granted
    El Rodeo #11’s motion for return of its insurance proceeds and ordered Marion
    County to “return, or cause to be returned, the $967,840.81 seized improperly
    from the account of El Rodeo #11 within five (5) business days from the date”
    of its May 7, 2014 order. Marion County requested a stay of the trial court’s
    order and requested that the trial court clarify whether the court “has granted
    summary judgment to Defendants on the claim of forfeiture to the disputed
    funds” or whether the court’s order only affects possession of the funds
    “without deciding the merits of Plaintiff’s complaint.” Appellant’s App. p. 152.
    [12]   On May 16, 2014, El Rodeo #11 filed a petition requesting that the trial court
    hold Marion County in contempt of court for failing to return its seized funds.
    On May 22, the trial court issued a show cause order and directed Marion
    County to “bring with them to the [June 18, 2014] hearing a check either
    endorsed by the appropriate party, or made directly payable to El Rodeo #11,
    in the amount of $967,840.81.” 
    Id. at 158.
    On June 6, 2014, Marion County
    filed an interlocutory appeal of right pursuant to Indiana Appellate Rule 14(A).
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 5 of 10
    Discussion and Decision
    [13]   Marion County argues that the trial court erred when it was ordered to return
    funds to El Rodeo #11, which were never seized by the Marion County
    Prosecutor’s Office and are “being legally held pursuant to a different case now
    pending in Tippecanoe County.” Appellant’s Br. at 6. Marion County
    contends that El Rodeo #11 needs to seek relief in Tippecanoe County, which
    is holding the funds “under the authority of a court in that county.” 
    Id. at 6.
    Finally, Marion County argues that the trial court “had no jurisdiction to order
    payment of funds being held under the authority and order of” the Tippecanoe
    Superior Court. 
    Id. at 7.
    [14]   In response, El Rodeo #11 contends that the Tippecanoe County Prosecutor is
    an agent of the State of Indiana, as is the Marion County Prosecutor. Therefore,
    it does not matter which prosecutor’s office is holding El Rodeo’s funds because
    the “agency holds it by and under the laws of the State of Indiana.” Appellee’s
    Br. at 6. El Rodeo #11 claims that the trial court’s order does not infringe on
    the authority of the Tippecanoe Superior Court because the trial court
    effectively ordered the State of Indiana to return El Rodeo #11’s funds.
    Specifically, El Rodeo #11 argues that the plaintiff “is the State of Indiana not
    the Marion County Prosecutor. The Marion County Prosecutor represents the
    State of Indiana as its attorney. . . . The money is being held by a subdivision of
    the State of Indiana not a different government agency.” 
    Id. at 7.
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 6 of 10
    [15]   Our General Assembly has authorized county prosecutors to represent the State
    and the State Police in certain civil forfeiture actions. See State v. Combs, 
    921 N.E.2d 846
    , 852 (Ind. Ct. App. 2010); see also Ind. Code § 34-24-1-3
    (authorizing the “prosecuting attorney for the county in which the seizure
    occurs” to bring a civil forfeiture action “in the name of . . . the state and the
    unit that employed the law enforcement officers who made the seizure”). In this
    case, the Marion County Prosecutor’s Office initiated the forfeiture action on its
    own behalf, the State, the State Police, the City of Indianapolis, the
    Metropolitan Law Enforcement Agency, and the Indiana Department of
    Revenue.
    [16]   However, while Marion County was able to freeze El Rodeo #11’s PNC Bank
    account, the Tippecanoe County Prosecutor’s Office had already seized the
    funds in that account under the authority of the Tippecanoe Superior Court. It
    is undisputed that the Marion County Prosecutor’s Office is not in possession of
    El Rodeo #11’s funds. On the date of the hearing in this case, the Tippecanoe
    County Prosecutor’s Office retained possession and control over the seized
    funds. The seized funds have not been turned over to the State.
    [17]   The “prosecuting attorney for the county in which the seizure occurs may, . . .
    cause an action for reimbursement of law enforcement costs and forfeiture to be
    brought by filing a complaint in the circuit or superior court in the jurisdiction
    where the seizure occurred.” I.C. § 34-24-1-3 (emphasis added). Also, Indiana
    Code section 34-24-2-2 allows “[t]he prosecuting attorney in a county in which
    any of the property is located [to] bring an action for the forfeiture of any
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 7 of 10
    property: (1) used in the course of; (2) intended for use in the course of; (3)
    derived from; or (4) realized through; conduct in violation of IC 35-45-6-2,”
    which statute defines corrupt business influence. (Emphasis added).
    [18]   El Rodeo #11’s property was seized by and located in Tippecanoe County
    when the Marion County Prosecutor’s Office filed its November 21, 2013,
    complaint for forfeiture. Therefore, the Marion County Prosecutor’s Office
    could not meet the statutory requirements for filing a forfeiture complaint under
    either Indiana Code section 34-24-1-3 or Indiana Code section 34-24-2-2.
    [19]   Marion County filed a motion to dismiss its forfeiture complaint against El
    Rodeo #11 because the Tippecanoe County Prosecutor’s Office possesses El
    Rodeo #11’s funds. Appellant’s App. pp. 160-62. Because El Rodeo #11’s
    funds were not located in Marion County, the trial court should have granted
    Marion County’s motion to dismiss.
    [20]   The trial court also improperly granted El Rodeo #11’s motion to return
    insurance proceeds improperly seized. First, we observe that El Rodeo #11
    inexplicably filed this motion in the Marion Superior Court forfeiture action
    even though its funds were seized and are in the custody of the Tippecanoe
    County Prosecutor’s Office. The record does not disclose whether El Rodeo
    #11 has filed a similar motion in Tippecanoe County.
    [21]   None of the named plaintiffs, including the State and the State Police, are in
    possession of the seized funds; therefore, Marion County is unable to provide
    the relief ordered by the trial court. “A case is deemed moot ‘when no effective
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 8 of 10
    relief can be rendered to the parties before the court.’” State v. Downey, 
    14 N.E.3d 812
    , 816 (Ind. Ct. App. 2014) (quoting Samm v. State, 
    893 N.E.2d 761
    ,
    765 (Ind. Ct. App. 2008)), trans. pending. El Rodeo #11’s request for the seized
    funds is moot because Marion County cannot produce funds that it does not
    (and never) possessed. See 
    Downey, 14 N.E.3d at 816
    (concluding that
    Downey’s request for funds was moot because the State turned his seized funds
    over to the federal government pursuant to court order).
    [22]   Moreover, the Tippecanoe County Prosecutor’s Office is not a named party in
    this case,2 and we disagree with El Rodeo #11’s assertion that it does not matter
    which prosecutor’s office is holding El Rodeo #11’s funds because the “agency
    holds it by and under the laws of the State of Indiana.” Appellee’s Br. at 6.
    County prosecutors are part of the executive branch of government, and the
    office “represents the executive in the enforcement of the criminal laws of the
    state.” Schweitzer v. State, 
    700 N.E.2d 488
    , 493 (Ind. Ct. App. 1998) (Sullivan,
    J., concurring in result), trans. denied. However, county prosecutors represent
    “the state of Indiana in all criminal matters arising within his [or her]
    jurisdiction” unless he or she is disqualified “for some reason.” State ex re.
    Powers v. Vigo Circuit Court, 
    236 Ind. 408
    , 412, 
    140 N.E.2d 497
    , 499 (1957).
    [23]   El Rodeo #11 would have us hold that a judgment against the State may be
    enforced against any political subdivision within the State. Such a conclusion is
    illogical and untenable. El Rodeo #11 does not cite, and our research does not
    2
    However, a representative from the Tippecanoe Prosecutor’s Office was present at the hearing held on May
    7, 2014.
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                   Page 9 of 10
    reveal, any authority for its proposition that the trial court’s judgment against
    Marion County can be used to compel Tippecanoe County to return the seized
    funds in its possession to El Rodeo #11. For all of these reasons, we conclude
    that the trial court erred when it granted El Rodeo #11’s “Motion to Return
    Insurance Proceeds Improperly Seized.”
    Conclusion
    [24]   We reverse and remand this case to the trial court with instructions to grant
    Marion County’s motion to dismiss its forfeiture complaint against El Rodeo
    #11, and we vacate the trial court’s order granting El Rodeo #11’s motion to
    return insurance proceeds.
    [25]   Reversed and remanded for proceedings consistent with this opinion.
    Najam, J., and Bradford, J., concur.
    Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 10 of 10
    

Document Info

Docket Number: 49A05-1406-MI-257

Citation Numbers: 25 N.E.3d 781

Filed Date: 1/29/2015

Precedential Status: Precedential

Modified Date: 1/12/2023