FOR PUBLICATION


APPELLANT PRO SE:                             ATTORNEYS FOR APPELLEE:

MICHAEL L. CURTIS                             GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              STEPHANIE L. ROTHENBERG
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                            FILED
                                                                       Jan 29 2013, 9:04 am

                             IN THE                                             CLERK
                   COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




MICHAEL L. CURTIS,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A02-1203-MI-271
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Timothy W. Oakes, Judge
                          Cause No. 49D13-0912-MI-57586



                                   January 29, 2013


                             OPINION - FOR PUBLICATION


SHARPNACK, Senior Judge
                                  STATEMENT OF THE CASE

        Michael Curtis appeals the denial of his Indiana Trial Rule 60(B) motion for relief

from judgment following the forfeiture of his truck. We reverse.

                                                ISSUE

        Curtis raises one issue: whether the trial court abused its discretion by denying his

motion for relief from judgment.

                           FACTS AND PROCEDURAL HISTORY

        In December 2009, the State charged Curtis with four counts of Class D felony

fraud for selling pirated movies out of his truck. Specifically, the State alleged that

Curtis violated Indiana Code section 35-43-5-4(10)(A) (2005), which makes it a crime to

“knowingly or intentionally . . . sell[ ] . . . a recording for commercial gain or personal

financial gain that does not conspicuously display the true name and address of the

manufacturer of the recording.”

        Later that month, the State filed a complaint for forfeiture of Curtis’s truck under

Indiana Code section 34-24-1-1(a)(1)(B) (2009), which allows the seizure of vehicles “if

they are used or are intended for use by the person or persons in possession of them to

transport or in any manner to facilitate the transportation of . . . [a]ny stolen . . . or

converted property . . . if the retail or repurchase value of that property is one hundred

dollars ($100) or more.”1




1
  Although the forfeiture complaint is not included in the record on appeal, the State’s subsequent motion
for summary judgment establishes that the complaint was based on this provision of the forfeiture statute.
See Appellant’s App. p. 11.
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       Curtis was represented by the same attorney in both proceedings. In February

2011, Curtis pleaded guilty to one count of fraud, the State dismissed the remaining

charges, and the trial court entered judgment as a misdemeanor. The State then filed a

motion for summary judgment in the forfeiture action. In April 2011, the trial court

granted the State’s motion and ordered the truck forfeited. On the same day the forfeiture

order was issued, Curtis filed a Memorandum of Law in Support of the Motion to

Dismiss the State Law Claim of Forfeiture, which argued that the fraud underlying the

forfeiture action was preempted by federal copyright law and was not pleaded with

specificity. It is unclear whether the memorandum was filed before or after the trial court

issued its order of forfeiture. In any event, the chronological case summary does not

indicate that Curtis ever filed a motion to dismiss.

       In January 2012, Curtis filed a pro se Motion to File a Belated Appeal in the

forfeiture case. In the motion, Curtis stated that his attorney did not inform him that a

final decision had been issued. He also noted that he planned to appeal on the basis that

copyright infringement does not constitute theft under Dowling v. United States, 473 U.S.

207, 105 S. Ct. 3127, 87 L. Ed. 2d 152 (1985). The trial court took no action on the

motion.

       In March 2012, Curtis filed a Motion for Relief from Judgment Pursuant to Trial

Rule 60(B)(1), (3), or (8). In the motion, Curtis again stated that his attorney did not

notify him of the forfeiture order and again challenged the forfeiture on grounds that the

pirated movies did not constitute stolen property. Specifically, Curtis cited Dowling and

argued that “I.C. 34-24-1-1 does not provide for forfeiture of a vehicle for violating I.C.

                                              3
35-43-5-4(10).” Appellant’s App. p. 28. The trial court denied the motion without a

hearing. Curtis now appeals.

                              DISCUSSION AND DECISION

       Curtis contends that the trial court abused its discretion by denying his Trial Rule

60(B) motion for relief from judgment. The burden is on the movant to establish grounds

for Trial Rule 60(B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). A

60(B) motion addresses only the procedural, equitable grounds justifying relief from the

legal finality of a final judgment, not the legal merits of the judgment. Id. A 60(B)

motion is addressed to the equitable discretion of the trial court, whose ruling will be

disturbed only upon an abuse of that discretion.             Id. at 740-41.   In exercising its

discretion, the trial court must balance the alleged injustice suffered by the movant

against the interests of the nonmovant and society generally in the finality of litigation.

Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind. Ct. App. 1991), trans.

denied.

       In his 60(B) motion, Curtis stated that his attorney failed to inform him of the

forfeiture order and argued that seizure of his truck was not authorized by the forfeiture

statute because the pirated movies he sold did not constitute stolen property. Assuming

the truth of his claim that his attorney did not inform him of the final judgment, Curtis

may have been unable to file a timely notice of appeal. He did, however, file a motion

for a belated appeal, in which he notified the trial court for the first time that his attorney

did not inform him of the forfeiture order and argued that the copyright infringement was

not theft, but the trial court did not rule on the motion.

                                               4
       Regardless, Trial Rule 60(B)(8) provides that a motion for relief from judgment

may be granted for “any reason justifying relief from the operation of the judgment.”

Rule 60(B)(8) allows courts to vacate judgments within the residual power of a court of

equity to do justice. State ex rel. Huppert v. Paschke, 637 N.E.2d 150, 154 (Ind. Ct. App.

1994). Relief under Rule 60(B)(8) may be invoked only upon a showing of exceptional

circumstances justifying extraordinary relief. Id. Upon consideration of Dowling, cited

in Curtis’s motion for a belated appeal and again in his motion for relief from judgment,

it is apparent that such exceptional circumstances are present here.

       In Dowling, the defendant was convicted in federal district court of eight counts of

violating the National Stolen Property Act, which provides for the imposition of criminal

penalties upon any person who transports “in interstate or foreign commerce any goods,

wares, merchandise, securities or money, of the value of $5,000 or more, knowing the

same to have been stolen, converted or taken by fraud.”          18 U.S.C. § 2314.     The

defendant had transported across state lines bootleg records that were manufactured and

distributed without the consent of the copyright owners of the musical compositions

performed on the records. The Ninth Circuit affirmed the convictions, reasoning that the

rights of copyright owners in their protected property were indistinguishable from

ownership interests in other types of property.

       The Supreme Court of the United States disagreed, noting that “[t]he copyright

owner . . . holds no ordinary chattel,” Dowling, 473 U.S. at 216, and that copyright

protection does not accord the copyright owner complete control over all possible uses of

his or her work. While an “infringer invades a statutorily defined province guaranteed to

                                             5
the copyright holder alone,” the infringer “does not assume physical control over the

copyright [or] wholly deprive its owner of its use.” Id. at 217. The Court thus concluded

that “infringement plainly implicates a more complex set of property interests than does

run-of-the-mill theft, conversion, or fraud.” Id. at 218. After discussing the history of the

National Stolen Property Act, the history of the criminal infringement provisions of the

Copyright Act, and the broad consequences of equating infringement with theft,

conversion, and fraud, the Court invoked the rule of lenity to reverse the Ninth Circuit.

Id. at 228-29.

       Here, the forfeiture of Curtis’s truck was based on the assumption that the content

of the pirated movies sold out of the truck constituted “stolen . . . or converted property.”

Ind. Code § 34-24-1-1(a)(1)(B). We must disagree. As noted in Dowling, “the property

rights of a copyright holder have a character distinct from the possessory interest of the

owner of simple goods, wares, or merchandise.” 473 U.S. at 217 (quotation omitted).

Moreover, Section 34-24-1-1(a)(1)(B) clearly allows forfeiture in cases of theft or

conversion but says nothing about copyright infringement or even fraud, the crime to

which Curtis pleaded guilty. See Chan v. State, 969 N.E.2d 619, 621 (Ind. Ct. App.

2012) (“[F]orfeitures are not favored in the law, and statutes authorizing forfeitures are

strictly construed.”).

       The State nonetheless asks us to affirm the trial court on two alternative grounds.

First, it argues that Curtis has waived any arguments on appeal for failure to present a

cogent argument. In his brief, Curtis argues that the trial court abused its discretion by

denying his Rule 60(B) motion and further cites relevant portions of Dowling. This is

                                             6
sufficient to avoid waiver. Second, the State argues that Curtis cannot challenge the

forfeiture inasmuch as he already pleaded guilty to committing the underlying crime with

his truck.     The crime to which Curtis pleaded guilty, however, was not theft or

conversion, and the forfeiture provision here allows seizure only in cases of stolen or

converted property.

         As the forfeiture of the truck was not authorized by statute, we conclude that

Curtis has established extraordinary circumstances justifying relief.

                                      CONCLUSION

         For the reasons stated, we reverse the trial court’s denial of Curtis’s Rule 60(B)

motion for relief from judgment and remand with instructions to vacate the forfeiture

order.

         Reversed and remanded with instructions.

ROBB, C.J., and KIRSCH, J., concur.




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