ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: JOHN QUIRK DONALD D. CHIAPPETTA Muncie, Indiana Muncie, Indiana



## IN THE COURT OF APPEALS OF INDIANA

CITY OF MUNCIE, ) ) Appellant

- Intervenor, ) ) vs. ) No. 18A02

- 1207

- CR

- 549 ) STANLEY BENFORD, ) ) Appellee

- Defendant. )

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable John M. Feick, Judge Cause No. 18C04

- 0711

- MC

- 19

March 6, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION MATHIAS, Judge

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.2 The City of Muncie ( “ the City ” ) appeals the order of the Delaware Circuit Court setting aside the court’s earlier order dismissing a forfeiture claim brought by the City against Stanley Benford ( “ Benford ” ). The City presents two arguments on appeal: (1)

w hether the trial court had personal jurisdiction over the City in this case, and (2) whether the trial court erred in granting Benford ’ s motion to set aside the order dismissing the

case
. Benford claims that the City’s appeal should be dismissed for lack of appellate jurisdiction. Concluding that we have appellate jurisdiction, that the trial court did have personal jurisdiction over the City, and that the trial court did not err in granting Benford’s motion to set aside, we affirm.
Facts and Procedural History The underlying facts of this case were set out by this court in our memorandum decision in City of Muncie v. Benford , 18A02

- 1011

- MI

- 1281 (Ind. Ct. App. Dec. 19, 2011): On November 28, 2007, the State and the Muncie Police Department filed a Compla int for Forfeiture and Reimbursement of Law Enforcement Costs against Benford seeking forfeiture of a 1999 Cadillac Escalade following Benford ’ s November 26, 2007 arrest for conspiracy to commit arson and insurance fraud. On January 8, 2008, the State and the Muncie Police Department filed a Verified Motion for Default and the court entered default judgment and ordered that the personal property be forfeited by Benford and become the property of the Muncie Police Department. On October 28, 2009, Benford fi led a Petition to Set Aside Judgment in which he asserted that on November 28, 2007, he was an inmate in the Delaware County Jail, that he never received service of process, and that he was not aware that the forfeiture action was pending. On December 18, 2009, the City sold the vehicle through an online auction for $9,050.99

. On June 2, 2010, the court held a hearing on Benford ’ s petition and the State filed a response to Benford ’ s petition which argued that Benford did receive service of process and tha t Benford did not timely file his Petition to Set Aside Judgment pursuant to Ind. Trial Rule 60(B). On June 8, 2010,3 the court ordered the default judgment set aside and scheduled a bench trial for August 2, 2010. On August 2, 2010, the parties appeared before the court and indicated that they agreed to the return of the vehicle to Benford, and the court asked the State ’ s counsel to prepare a motion to dismiss with a proposed order and Benford ’ s counsel to prepare a proposed order for the return of the ve hicle. On August 3, 2010, the court ordered the State to return the vehicle to Benford within three days. On August 9, 2010, Benford filed an Affidavit Alleging Contempt stating that the State had failed to return the vehicle and requested attorney fees. On August 12, 2010, the State filed a motion “ to dismiss this action with prejudice ” in Count No. 19. On August 13, 2010, the trial court granted the State ’ s motion and entered an order of dismissal which provided: “ IT IS THEREFORE ORDERED that this matt er be dismissed with prejudice. ” On August 31, 2010, the court scheduled a hearing “ concerning the return of [Benford ’ s] property. ” On September 13, 2010, the court held a hearing at which counsel for Benford and counsel for the City appeared. Benford ’ s counsel called Officer Rodney Frasier as a witness. Frasier testified that prior to the sale the vehicle was titled in the name of the City, that the vehicle was sold via an online auction in 2009, that the sale price was $9,050.99, that the City collec ted $8,328.45 after the online service collected its rate, and that the money was transferred to the City ’ s account in February 2010. Benford testified that the value of the vehicle at the time it was taken was around $12,000 and that he had new tires and rims which had cost him close to $2,400. Benford ’ s counsel stated that the parties were in court on Benford ’ s “ contempt citation ” and that “ [o]bviously they can ’ t return the vehicle, ” and he requested “ that the Court require the City of Muncie to compens ate [his] client as is necessary to make him whole. ” Counsel for the City noted that it was in a difficult situation, that the City ’ s
“ office was not involved up until this point, ” that “ [i]t was the State of Indiana, ” and that it “ need[ed] time to figure out where to do [sic] from here. ” Benford ’ s counsel noted that the City “ was listed as a party originally ” and the court stated that “ to keep the case clear ” the City should enter an appearance and file a motion to intervene. On September 22, 2010, Benf ord filed a Verified Motion for a Finding of Contempt, Damages and Attorney Fees requesting the court to enter a finding of contempt against the City and order the City, in lieu of the return of the vehicle, to pay Benford the sum of $14,512.22, plus thirt y dollars per day from August 3, 2010 for the loss of use of the vehicle, and reasonable attorney fees. On September 23, 2010, the City filed a motion to intervene and request for a hearing on Benford ’ s motion. On November 4, 2010,4 following a hearing, t he court found that the City “ is now added as an intervenor ” and scheduled a hearing for November 17, 2010. On November 17, 2010, the court held a hearing. At the start of the hearing, the City asked the court to reconsider its previous ruling on the mot ion to set aside default judgment, which the court denied. Benford ’ s counsel stated that the parties appeared “ on a show cause hearing ” and that the issue was “ why they have not returned [Benford ’ s] vehicle as they were ordered to do, ” and the City ’ s coun sel stated that he “ thought [the parties] were here to figure out the value of the vehicle and damages and move forward. ” The City introduced Plaintiff ’ s Exhibit 1, which indicated that the vehicle was sold by the “ City of Muncie / Muncie Police Dept. ” for $9,050.99 on December 18, 2009.

Id

. , slip op. at 2

- 5 (record citations and footnotes omitted). The City appealed, arguing that the trial court had no authority to conduct any proceedings or enter any order after it had dismissed Benford’s action on August 13, 2010. We agreed, holding: In this case, the record reveals that, following the August 13, 2010 dismissal with prejudice, Benford did not avail himself of Ind. Trial Rules 41(F) or 60(B) to reinstate the case or file a separate lawsuit to en force the August 3, 2010 order that the City return his vehicle. Because the trial court dismissed the action with prejudice, and Benford neither filed a new action nor followed Ind. Trial Rule 41(F) to have the dismissal set aside, the trial court did no t have the authority to enter its November 22, 2010 order.
Id

. at 7

- 8 (citation omitted). Benford subsequently filed a motion on January 10, 2012, requesting that the trial

court set aside the order of dismissal pursuant to Indiana Trial Rule 60(B)(3) and 60(B)(8). On March 21, 2012, the trial court held a hearing on Benford’s motion to set aside the dismissal. The City appeared and argued that the trial court did not have jurisdict ion over the City due to the trial court’s earlier order dismissing the case with5 prejudice. The City also argued that Benford’s motion to set aside the dismissal order should not be granted because it failed to set forth a meritorious claim or defense. On June 8, 2012, the trial granted Benford’s motion to set aside the dismissal, entering an order which read in relevant part:
13. The defendant has shown, and the undisputed facts of this case demonstrate, that this is not just about mistake, surprise, or excusable neglect. 14. First, the City failed to disclose to the court or to the defendant during the August 2, 2010 [hearing] that the vehicle at issue had bee n ordered sold almost a year prior to the hearing. 15. Second, the City Attorney affirma tively agreed in open court that the vehicle would be returned to the Defendant in three (3) days. 16. Third, once the City acknowledged that the vehicle had been sold , the City Attorney agreed in open court that the Defendant was entitled to reasonable compensation for the value of the vehicle. 17. The City Attorney might have been personally surprised or mistaken when he discovered that his client had sold the vehicle[,] but the City itself cannot claim mistake, surprise, or excusable neglect because the City knew the Defendant’s vehicle had been sold pursuant to a prior court order. 18. The defendant was certainly not neglectful in this case. Moreover, because the court and the Defendant had every reason to believe the representations of the City A ttorney and rely on those representations, the Defendant was more than simply mistaken or surprised about the underlying facts of this case. 19. The Defendant is ultimately alleging that the City intentionally misled its own attorney, the Defendant and his counsel, and the court into believing that the vehicle or value of the vehicle would be returned to the Defendant even though the City knew the vehicle had been previously sold. 20. The facts and circumstances of this case demonstrate exceptional cir cumstances justifying the extraordinary relief provided by Indiana Trial Rule 60(B)(8). To allow all parties to agree to return this vehicle or the reasonable value of the vehicle and then to not do so because of a procedural technicality would be unjust and inequitable. 21. The Defendant’s 60(B)(8) Motion was filed within a reasonable time. 22. In addition, the Defendant has established that he does in fact have a meritorious claim or defense in that: (1) the vehicle was not seized and sold6 in accorda nce with the State’s forfeiture statute; and (2) all parties agreed to return the vehicle or the value of the vehicle to the Defendant. IT IS ORDERED ADJUDGED AND DECREED that the Defendant Stanley Benford’s Motion to Set Aside is GRANTED pursuant to Ind iana Trial Rule 60(B)(8). Appellant’s App. pp. 156

- 58. T he City now appeals.
I. Appellate Jurisdiction Before we address the merits of the City’s appeal, we address Benford’s argument that this appeal should be dismissed for lack of appellate jurisdi ction. 1 Benford claims that the trial court’s order granting his motion to set aside the dismissal is interlocutory. Because the City did not seek to have this case certified for interlocutory appeal, Benford claims that this appeal should be dismissed b ecause it is an appeal from a non - final, interlocutory order. However, Trial Rule 60(C) clearly states that “ A ruling or order of the court denying or granting relief, in whole or in part, by motion under subdivision (B)
of this rule shall be deemed a final judgment , and an appeal may be taken therefrom as in the case of a judgment. ” Thus, the trial court’s order granting Benford relief under Trial Rule 60(B) is deemed a final judgment by operation of Trial Rule 60(C), and the City’s appeal from this o rder is proper.
II. Personal Jurisdiction The City first claims that the trial court had no personal jurisdiction over the City. The City notes that, at the time that the trial court dismissed the case with prejudice, the

1 Benford filed a motion to dismiss this appeal in this court on October 29, 2012. We denied this motion on December 17, 2012. But even though our motions panel has already ruled on this issue, Benford is not precluded from presenting this argument in hi s appellee’s brief. See Miller v. Hague Ins. Agency, Inc. , 871 N.E.2d 406, 407 (Ind. Ct. App. 2007). Although we are reluctant to overrule orders decided by the motions panel, we have inherent authority to reconsider any decision while an appeal remains in fieri

. Id

.7 City had not yet intervened an d its attorney had not yet filed an appearance. Instead, prior to the dismissal, the State and the State’s attorney had been the party prosecuting the case. Thus, the City argues that its act of intervening did not subject it to the trial court’s jurisdi ction because, as we held in the earlier appeal, the trial court had no authority to act after it dismissed the case with prejudice. See Benford , slip op. at 7

- 8. Benford, however, notes that the present forfeiture action was brought in the name of the State of Indiana and the Muncie Police Department. Appellant’s App. p. 18. Indeed, Indiana Code section 34

- 24

- 1

- 3(a) requires that a forfeiture action be brought by “[t]he prosecuting attorney for the coun ty in which the seizure occurs,” and that such

ac tion be brought “ in the name of the state or the state and the unit that employed the law enforcement officers who made the seizure if the state was not the employer [.]” Here, it is undisputed that officers of the Muncie Police Department made the seizure . Therefore, the forfeiture action was, as required, filed in the name of the State and the Muncie Police Department. And the Muncie Police Department is a division of the City of Muncie. The fact that the forfeiture action did not name the City of Mun cie explicitly is not dispositive. Indiana Trial Rule 19(F) governs “[s]uits by or against a governmental organization or governmental representative relating to the acts, power or authority of such organization or representative, including acts under pur ported power or authority or color thereof by such organization or representative.” Subsection (F)(1) of Trial Rule 19 provides in relevant part that “ suits naming an unofficial branch, office or unit of a governmental organization shall be deemed to name and include the governmental organization of which it is a part [.]”8 Thus, by operation of the relevant statute and the trial rule, the City was a party in this forfeiture action because the action was brought in the name of the Muncie Police Department. D espite the fact that the case was brought by the prosecuting attorney, the City of Muncie was a party from the initiation of this case, and the trial court had personal jurisdiction over the City. Even if the Muncie Police Department, and therefore the City, had not been named as a party, we would further note that the City filed a motion to intervene in the action and filed an appearance. The fact that the trial court had already dismissed the case does not alter the fact that the City never objected t o the personal jurisdiction of the trial court and in fact submitted itself to the jurisdiction of the court by voluntarily appearing in the

case without objecting to the jurisdiction of the trial court. See Harris v. Harris , 922 N.E.2d 626, 632 (Ind. Ct. App. 2010) (noting that a party may waive the lack of personal jurisdiction and submit themselves to the trial court ’s jurisdiction if they respond or appear and do not contest the lack of jurisdiction). We therefore reject the City’s argument that the t rial court was without personal jurisdiction over the City. III. Propriety of Granting Motion to Set Aside The City also claims that the trial court erred in granting Benford’s motion to set aside the dismissal pu rsuant to Trial Rule 60(B)(8). A motion to reinstate a cause after a dismissal must be made under T.R. 60(B). Ind. Ins. Co. v. Ins. Co. of N. Am. , 734 N.E.2d 276, 278 (Ind. Ct. App. 2000). Trial Rule 60(B)(8) provides in relevant part that: On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:9 * * * (8) any reason justifying relief from the operation of the judgment, other than th ose reasons set forth in sub

- paragraphs (1), (2), (3), and (4). 2

T he motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8)[.] Thus, Trial Rule 60(B)(8) is an omnibus provision which gives the trial court broad equitable discr etion and imposes a time limit based only on reasonableness. Baker & Daniels, LLP v. Coachmen Indus., Inc. , 924 N.E.2d 130, 140 (Ind. Ct. App. 2010). Under Trial Rule 60(B)(8), the party seeking relief from the judgment must show that its failure to act was not merely due to an omission involving the mistake, surprise or excusable neglect; instead, t he trial court ’ s residual powers under subsection (8) may only be invoked upon a showing of exceptional circumstances justifying extraordinary
relief. Id

. S uch exceptional circumstances do not include mistake, surprise, or excusable neglect, which are set out in Rule 60(B)(1). Id

. Furthermore, “[a] motion for relief from judgment under Trial Rule 60(B)(8) “must allege a meritorious claim or defense.”
Parha m v. Parham , 855 N.E.2d 722, 729 (Ind. Ct. App. 2006) (citing Ind. Trial R. 60(B)). A meritorious claim or defense is one showing that, if the case were tried on the merits, a
different result would be reached. Id

. On appeal, w e review the trial court’ s ruling on a Trial Rule 60(B) motion for an abuse of discretion, which occurs when the denial is clearly against the logic and effect of

2 Sub

- paragraphs (1), (2), (3), and (4) respectively cover “mistake, surprise, or excusable neglect,” “ any ground for a motion to correct error ,” “ fraud ,” and “ entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings .” T.R. 60(B).10 the facts and inferences supporting the judgment for relief. Elliott v. JPMorgan Chase
Bank , 920 N.E.2d 793, 796 (Ind . Ct. App. 2010)

. The City claims that the trial court abused its discretion in granting Benford’s Trial Rule 60(B) motion to set aside the dismissal, first claiming that Benford’s motion set forth no meritorious claim or defense. We disagree. Benford’ s motion clearly set
forth that the State never presented any evidence that would support its claim for forfeiture

— a fact that the City does not deny. Moreover, the State agreed to return Benford’s vehicle on August 2, 2010, and the trial court entered an order that the State return Benford’s vehicle on August 9, 2010

— both of which occurred before the trial court dismissed the case without prejudice. Even after the dismissal, the City never denied that Benford was entitled to be compensated; the only thin g the City contested was the value of Benford’s car. The City can hardly be heard now to claim that Benford
did not have a meritorious claim or defense. The City also claims that Benford did not file his motion to set aside within a reasonable time. The City notes that the case was dismissed on August 13, 2010, but that Benford did not file a motion to set aside this dismissal until January 10, 2012. We first note that a motion f iled under Trial Rule 60(B)(8) need only be filed within a reasonable
time. See Baker & Daniels , 924 N.E.2d at 140 . It is true that over seventeen months passed from the date of the dismissal to the date of the motion to set aside the dismissal.
However , after the dismissal, all parties continued as if the dismissal did not deprive the trial court of authority to continue to hear the remaining issue, i.e., the amount of Benford’s damages.11 After this court entered our memorandum decision in the first ap peal holding that the trial court was without authority to act in this case following the dismissal order and that Benford’s remedy was to file a motion to set aside the dismissal, Benford did so within twenty

- two days. Under these facts and circumstances , t he trial court was well within its discretion to conclude that Benford filed his Trial Rule 60(B)(8) motion within a reasonable period of time. In short, the trial court did not abuse its discretion in granting Benford’s motion to set aside the trial c ourt’s earlier dismissal order.
Conclusion The trial court’s order granting Benford’s Trial Rule 60(B) motion to set aside the trial court’s earlier dismissal order was a final judgment by operation of Trial Rule 60(C).
We therefore ha ve appellate juris diction to hear this case, and Benford’s argument that this appeal should be dismissed is unavailing. With regard to the City’s arguments, the
trial court had personal jurisdiction over the City, and the trial court did not abuse its discretion in grantin g Benford’s Trial Rule 60(B) motion to set aside the dismissal order.
Affirmed. KIRSCH, J., and CRONE, J., concur.