Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015 Page 1 of 10

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Andrew A. Kobe

Deputy Attorney General

Kyle Hunter

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Karen Huelskamp

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, 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,

Appellants,

v.

El Rodeo #11, LLC,

Appellee.

January 29, 2015

Court of Appeals Cause No.

49A05-1406-MI-257

Appeal from the Marion Superior 

Court, The Honorable David. A. 

Shaheed, Judge

Cause No. 49D01-1311-MI-0432384

Mathias, Judge.
Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015 Page 2 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 The funds were eventually withdrawn from the Chase account and 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 
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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 
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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.
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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).
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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. 
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[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 
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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 
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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. 
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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.