                                                                                     FILED
                                                                                May 30 2017, 8:40 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      APPELLANT PRO SE
      Kevin Campbell
      Marietta, Georgia



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kevin Campbell,                                           May 30, 2017
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                41A01-1607-SC-1723
              v.                                                Appeal from the Johnson Superior
                                                                Court
      Irenea George,                                            The Honorable Kevin M. Barton,
      Appellee-Defendant                                        Judge
                                                                The Honorable Douglas B.
                                                                Cummins, Magistrate
                                                                Trial Court Cause No.
                                                                41D01-1604-SC-1070



      Mathias, Judge.


[1]   Kevin Campbell (“Campbell”) brought a small claims action in Johnson

      Superior Court for the return of a dog, “Snickers,” against Irenea George

      (“George”). The Johnson County magistrate entered an order giving Snickers

      to George. That order was never signed or otherwise adopted by a judge.

      Without a final appealable order, we remand.

      Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017                            Page 1 of 6
                                  Facts and Procedural Posture

[2]   On April 5, 2016, Campbell filed a notice of claim in Johnson Superior Court,

      seeking Snickers’s return from George’s possession and $6,000 in damages, the

      jurisdictional limit for small claims actions. On June 9, 2016, Campbell and

      George both appeared in person before the Johnson County magistrate and

      pleaded their cases. The magistrate took the matter under advisement and, later

      the same day, issued an order finding Snickers belonged to George and denying

      Campbell’s claim. That order was never signed or otherwise adopted by a

      judge. Campbell moved to correct error and to set aside the judgment for fraud;

      the magistrate denied both motions, again by orders signed only by him.


[3]   Campbell filed notice of appeal on July 25, 2016. Campbell then filed a

      “Motion For Relief By Law Due To Magistrate’s Lack Of Judicial Mandate” in

      Johnson Superior Court on August 15, 2016. Because the completion of the

      clerk’s record was noted in the chronological case summary on August 16,

      2016, the superior court judge denied the motion for lack of jurisdiction under

      Indiana Appellate Rule 8 on August 22, 2016. On appeal, Campbell raises a

      welter of issues, but we find one dispositive: whether the magistrate’s order was

      a final appealable order. Concluding that it was not, we remand.


                                      Discussion and Decision

[4]   The Johnson circuit and superior courts are authorized to employ one full-time

      magistrate. Ind. Code § 33-33-41-2(a). A magistrate’s power is limited by

      statute. Tongate v. State, 954 N.E.2d 494, 495 (Ind. Ct. App. 2011), trans. denied.


      Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017    Page 2 of 6
              A magistrate may . . .

              (14)     Enter a final order, conduct a sentencing hearing, and
                       impose a sentence on a person convicted of a criminal
                       offense as described in section 9 of this chapter.

              (15)     Enter a final order or judgment in any proceeding involving
                       matters specified in [Indiana Code §] 33-29-2-4
                       (jurisdiction of small claims docket) . . . .


      I.C. § 33-23-5-5 (emphasis added). However,


              [e]xcept as provided under sections 5(14) and 9(b) of this chapter,
              a magistrate . . .

              (1)      does not have the power of judicial mandate; and

              (2)      may not enter a final appealable order unless sitting as a
                       judge pro tempore or a special judge.


      I.C. § 33-23-5-8 (emphasis added).

[5]   The statutes defining a magistrate’s power thus authorize a magistrate in a

      small claims case to enter a “final order or judgment,” id. § 5, but not a “final

      appealable order.” Id. § 8. Section 8 carves out an exception to the general

      prohibition against a magistrate entering appealable orders for criminal cases

      under § 5(14) in accordance with § 9 but does not include small claims cases

      under § 5(15). Section 9 provides, “Except . . . under subsection (b) [relating to

      criminal cases], a magistrate shall report findings in . . . a trial . . . . The court

      shall enter the final order.” Id. § 9(a). Finally, the local Johnson County rule

      provides, “The Johnson County Magistrate shall preside over all small claims


      Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017         Page 3 of 6
      matters and make recommendations to the Judge for final Order and

      Judgment.” Johnson LR41-SC00-5(A).

[6]   In Johnson v. Johnson, 882 N.E.2d 223 (Ind. Ct. App. 2008), we observed that,

      under then-current law, “[w]hile a magistrate presiding over a criminal trial

      may enter a final order, there is no provision providing such authority in a civil

      proceeding.” Id. at 225. Accordingly, we held invalid a magistrate’s grant of a

      motion to correct error. Id. at 226. Apparently in response, the General

      Assembly added § 5(15) to the list of a magistrate’s powers. Act of Mar. 24,

      2008, sec. 3, 2008 Ind. Legis. Serv. P.L. 127-2008 (West) (concerning courts

      and court officers). However, the very same act added the exception under § 8

      which includes § 5(14) but omits, and therefore excludes, § 5(15). Id., sec. 4.

      Expressio unius exclusio alterius: “the enumeration of certain things in a statute

      necessarily implies the exclusion of all others. This principle is particularly

      appropriate where the same term is present in certain portions of the same

      enactment, but not in other portions.” Brandmaier v. Metro. Dev. Comm’n, 714

      N.E.2d 179, 180 (Ind. Ct. App. 1999) (citations omitted), trans. denied.


[7]   While § 5(15) does allow a magistrate to enter a “final order or judgment” in

      small claims cases, I.C. § 33-23-5-5, Section 8, enacted by the same law as §

      5(15), excludes small claims cases from a magistrate’s power to enter “final

      appealable order[s].” Id. § 8 (emphasis added). This accords with the requirement

      in § 9 that, except in criminal cases covered by § 9(b) and § 5(14), “[t]he court

      shall enter the final order.” Id. § 9(a). This same understanding is embodied in

      the local rule. See Johnson LR41-SC00-5(A). If the General Assembly wished to

      Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017      Page 4 of 6
      bring small claims cases under § 5(15) within a magistrate’s power to enter

      appealable orders, as it did with criminal cases under § 5(14), it clearly knew

      how to say so — but it did not.


[8]   Though we used to hold the contrary, our supreme court’s long-standing rule is

      that “failure of a party to object at trial to the authority of a court officer to enter

      a final appealable order waives the issue for appeal” because the issue is not

      jurisdictional. In re Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015)

      (quoting Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994)). Nevertheless, our

      supreme court has repeatedly admonished judicial officers to observe the

      requirements of the statutes that create their authority. See, e.g., K.E. v. Ind. Dep’t

      of Child Servs., 39 N.E.3d 641, 652 n.8 (Ind. 2015). In any event, here Campbell

      objected while jurisdiction still lay in Johnson Superior Court, before the

      completed clerk’s record was noted in the chronological case summary.

      Campbell, therefore, did not waive the issue. Remand, rather than dismissal, is

      the appropriate remedy. See Floyd, 650 N.E.2d at 32.


                                                 Conclusion

[9]   The magistrate’s order was not a final appealable order by statute. We remand

      for adoption or rejection of the magistrate’s order by the court. Of course,

      Campbell may simply elect to let a sleeping dog lie and decline to pursue the

      matter further, in which case the magistrate’s order will remain final but

      unappealable.




      Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017        Page 5 of 6
[10]   Remanded.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 41A01-1607-SC-1723 | May 30, 2017   Page 6 of 6
