                                                                                   FILED
                                                                              Apr 16 2019, 8:55 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Deborah L. Law                                              Jeff Cardella
      Traci Marie Cosby                                           The Law Office of Jeff Cardella,
      Office of Corporation Counsel                               LLC
      Indianapolis, Indiana                                       Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      City of Indianapolis,                                       April 16, 2019
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  18A-OV-2202
              v.                                                  Appeal from the Marion Superior
                                                                  Court
      Ginger Tichy,                                               The Honorable Travis G. Sandifur,
      Appellee-Defendant.                                         Magistrate
                                                                  Trial Court Cause Nos.
                                                                  49D04-1701-OV-4141
                                                                  49D04-1703-OV-12165
                                                                  49D04-1704-OV-14006
                                                                  49D04-1704-OV-14340
                                                                  49D04-1704-OV-14994
                                                                  49D04-1704-OV-15972



      Najam, Judge.


                                         Statement of the Case
[1]   The City of Indianapolis (“the City”) appeals the trial court’s order to grant

      relief from judgment to Ginger Tichy under Indiana Trial Rule 60(B). The City
      Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019                               Page 1 of 9
      raises three issues for our review, and Tichy raises an additional issue. We

      consolidate the issues and restate them as the following dispositive question:

      whether the trial court abused its discretion when it granted relief to Tichy

      under Indiana Trial Rule 60(B). We hold that the trial court abused its

      discretion. Accordingly, we reverse.


                                   Facts and Procedural History
[2]   On May 10, 2017, following a bench trial in six consolidated cause numbers,

      the trial court permanently enjoined Tichy from acting in a manner that would

      violate Section 431-702 of the City’s municipal code.1 As relevant here, Section

      431-702 prohibits pedestrians from soliciting or conversing with the occupant of

      a vehicle in a roadway if the pedestrian is in the median of the roadway or

      within fifty feet of an intersection. Appellant’s App. Vol. 2 at 193. Tichy did

      not appeal the injunction and at no point has she disputed that she acted in

      violation of Section 431-702 prior to the issuance of the injunction. Shortly

      after the court entered the injunction, the City moved to have Tichy found in

      contempt as she had allegedly continued to solicit or converse with the

      occupants of motor vehicles in the roadway in a manner contrary to Section

      431-702.




      1
        The six separately entered permanent injunctions simply stated that Tichy shall not “have any further
      violations of [Section] 431-702” and that she “is bound by Section 431-702 . . . .” E.g., Appellant’s App. Vol.
      2 at 118.

      Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019                                  Page 2 of 9
[3]   In response, Tichy moved for relief from the injunction under Indiana Trial

      Rule 60(B). In her motion, she argued:


               22. Ms. Tichy is entitled to relief under Trial Rule 60(B)(7)
               because it is no longer equitable that the order permanently
               enjoining her from engaging in conduct prohibited by Municipal
               Code Section 431-702 [have] prospective application.


                                                          ***


               24. The permanent injunction is overbroad because it fails to
               provide for Ms. Tichy’s acting within the boundary [of] the
               activities specifically declared unlawful by Indiana’s penal statute
               on panhandling[,] Ind. Code § 35-45-17-1(c).[2] The City has no
               power to regulate Ms. Tichy’s act . . . [in] an area preempted by
               our legislature . . . .


               25. The injunction imposes a serious burden on Ms. Tichy’s
               ability to engage in lawful, passive panhandling—an activity vital
               to her survival—by banning such constitutionally protected
               expressive activity . . . .


                                                          ***


               29. Granting the equitable remedy of modifying or dissolving
               the injunction to protect Ms. Tichy from punishment for




      2
        This statute provides in relevant part that “panhandling . . . does not include an act of passively
      standing . . . : (1) while displaying a sign or other indication that a donation is being sought; and (2) without
      making an oral request other than in response to an inquiry by another person.” Ind. Code § 35-45-17-1(c)
      (2018).

      Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019                                    Page 3 of 9
        engaging in free expression in a manner declared lawful by our
        General Assembly is legally and factually appropriate.


        30. If this Court finds (B)(7) inapplicable, it should grant Ms.
        Tichy relief under Trial Rule 60(B)(8) for “any reason justifying
        relief from the operation of the judgment.” . . .


        31. In Ms. Tichy’s case, principles of Due Process and
        fundamental fairness necessitate setting aside the permanent
        injunction. The injunction was issued [at] a hearing where Ms.
        Tichy was not represented by counsel because she could not
        afford counsel. The nature of the civil ordinance action did not
        require the Court to appoint counsel for Ms. Tichy. When the
        Court issued the permanent injunction it was under the mistaken
        impression Ms. Tichy’s displaying a sign indicating she is
        homeless and seeking donation[s] near the roadway violates the
        [state’s] criminal panhandling statute and believed Ms. Tichy was
        fortunate to not be arrested. Ms. Tichy’s conduct is expressly
        exempt from the definition of panhandling in the penal code, but
        she did not possess the legal knowledge to correct the Court’s
        impression, had no lawyer to correct it, and [the City] did not
        correct it.


        32. Ms. Tichy’s prior written arguments have alleged a
        meritorious defense to enforcing the permanent injunction order
        because [the order] prohibits legal and life-sustaining conduct by
        Ms. Tichy . . . .


Appellant’s App. Vol. 2 at 136-39 (citation omitted). In response, the City

argued that relief under Trial Rule 60(B)(7) “require[d] a change in law or fact,”

which was absent here, and that “lack of counsel and knowledge of legal rights”

did not justify relief under Trial Rule 60(B)(8). Id. at 167, 169 (capitalization



Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019           Page 4 of 9
      and bold removed). The City further argued that Section 431-702 “is broader”

      than the state statutory prohibition on panhandling. Tr. Vol. II at 22.


[4]   In December, the court held a fact-finding hearing on Tichy’s Rule 60(B)

      motion. During that hearing, Tichy testified that she was homeless and she

      frequently walked along the raised medians of various roadways in Indianapolis

      with a sign that indicated that she would accept donations. If the occupants of

      nearby motor vehicles offered her money, she would “go and get it.” Id. at 39.

      And if they did not, she would “just keep walking.” Id. She also testified that,

      on “windy” days, she might “fall[] off the median into the road,” but she had

      never been “hit by any cars.” Id. at 40.


[5]   Following the hearing, the trial court granted Tichy’s Rule 60(B) motion on the

      ground that the City’s ordinance had been preempted by the Indiana Code. On

      August 15, 2018, the court granted the City’s motion to correct error and made

      technical revisions to the court’s judgment on Tichy’s Rule 60(B) motion but

      otherwise affirmed that judgment. On September 13, the City filed its notice of

      appeal, and this appeal ensued.3




      3
        Following the City’s notice of appeal, Tichy moved to dismiss the appeal on the ground that the City’s
      notice of appeal was not timely filed. Our motions panel denied Tichy’s motion to dismiss on October 19,
      2018, and she raises the issue again in her appellee’s brief. Although a writing panel of this Court has
      “inherent authority to reconsider any decision while an appeal remains in fieri,” we are “reluctant to overrule
      orders decided by the motions panel.” John C. & Maureen G. Osborne Revocable Family Trust v. Town of Long
      Beach, 78 N.E.3d 680, 692 (Ind. Ct. App. 2017), trans. denied; see also Moriarity v. Ind. Dep’t of Nat. Res., 113
      N.E.3d 614, 623 (Ind. 2019) (noting that Indiana’s appellate courts prefer to resolve cases on their merits).
      Moreover, according to the CCS, the trial court entered its final judgment in this matter on August 15, 2018,
      and the City filed its notice of appeal less than thirty days later on September 13, 2018. Accordingly, we
      decline Tichy’s request to reconsider our motions panel’s judgment on this issue.

      Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019                                    Page 5 of 9
                                      Discussion and Decision
[6]   The City appeals the trial court’s grant of Tichy’s motion for relief from

      judgment under Trial Rule 60(B). As our Supreme Court has held:


              the propriety of relief under Indiana Trial Rule 60(B) is a matter
              entrusted to the trial court’s equitable discretion. We review the
              exercise of that discretion only for abuse, which may occur if the
              trial court’s decision is clearly against the logic and effect of the
              facts and circumstances before the court, or if the trial court has
              misinterpreted the law. . . .


      Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind. 2012) (citations omitted).

      “Trial Rule 60(B) motions address only the procedural, equitable grounds

      justifying relief from the legal finality of a final judgment, not the legal merits of

      the judgment.” Smith v. Smith (In re Paternity of P.S.S.), 934 N.E.2d 737, 740

      (Ind. 2010) (quotation marks omitted).


[7]   Tichy moved for relief from judgment first under Trial Rule 60(B)(7), and the

      trial court granted her motion under that provision. Trial Rule 60(B)(7)

      provides that a court may relieve a party from a judgment when “the judgment

      has been satisfied, released, or discharged, or a prior judgment upon which it is

      based has been reversed or otherwise vacated, or it is no longer equitable that

      the judgment should have prospective application.” In essence, Tichy asserted

      that the injunction was no longer equitable, and, as such, the court should

      vacate the injunction.




      Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019              Page 6 of 9
[8]    We have long held that, to establish that it is no longer equitable for a final

       judgment to have prospective application under Rule 60(B)(7), the movant must

       show that there has been a change in circumstances since the entry of the

       original judgment and that the change of circumstances was not reasonably

       foreseeable at the time of entry of the original judgment. Jones v. Jones (In re

       Marriage of Jones), 180 Ind. App. 496, 499, 389 N.E.2d 338, 341 (1979); State v.

       Martinsville Dev. Co., 174 Ind. App. 157, 161, 366 N.E.2d 681, 684 (1977);

       Warner v. The Young Am. Volunteer Fire Dep’t, 164 Ind. App. 140, 150, 326

       N.E.2d 831, 837 (1975). This is because Trial Rule 60(B) “is not a substitute for

       a belated appeal, nor can it be used to revive an expired attempt to appeal. . . .

       Trial Rules 60(B)(7) and (8)” in particular “are concerned only with exceptional

       circumstances.” Masterson v. State, 511 N.E.2d 499, 500 (Ind. Ct. App. 1987).


[9]    Nothing at all about Tichy’s testimony on her motion for relief from judgment

       under Trial Rule 60(B)(7) demonstrates exceptional circumstances that were not

       reasonably foreseeable at the time of the entry of the injunction. Indeed, the

       circumstances to which she testified at the hearing on her Rule 60(B) motion

       were the exact same circumstances that were the factual predicate for the

       injunction in the first instance. In effect, then, her motion under Rule 60(B)(7)

       simply sought to relitigate the merits of the original judgment, which is not an

       appropriate basis for relief under Trial Rule 60(B). See In re Paternity of P.S.S.,

       934 N.E.2d at 740.


[10]   Alternatively, Tichy also sought relief under Trial Rule 60(B)(8) on the ground

       that her lack of representation during the original proceedings on the injunction

       Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019           Page 7 of 9
       was a basis for subsequent relief from the injunction. Rule 60(B)(8) provides

       that a court may relieve a party from a judgment for “any reason justifying

       relief from the operation of the judgment” other than those reasons set forth

       elsewhere in Rule 60(B). A motion under Rule 60(B)(8) must be filed within a

       reasonable time of the original judgment and must allege a meritorious claim or

       defense.


[11]   The trial court did not grant Tichy relief under Rule 60(B)(8), nor could it have.

       We have previously rejected attempts to rely on Rule 60(B)(8) on the ground

       that the moving party previously had been “not represented by

       counsel; . . . unaware of his legal rights; and . . . misled as to his legal rights.”

       Summit Account & Comput. Serv. v. Hogge, 608 N.E.2d 1003, 1006 (Ind. Ct. App.

       1993). Such arguments, insofar as they are even proper under Rule 60(B)(8)

       instead of being raised under Rule 60(B)(1),4 “fail[] to demonstrate

       extraordinary circumstances as required by subdivision (8).” Id.


[12]   Accordingly, we hold that the trial court erred when it granted Tichy’s motion

       for relief from the injunction under Trial Rule 60(B). Although the parties go

       on to discuss the merits of Tichy’s arguments against the original injunction, we




       4
         Trial Rule 60(B)(1) permits relief from a judgment on the basis of mistake, surprise, or excusable neglect.
       In Levin v. Levin, our Supreme Court stated that a moving party’s argument that “he was not represented by
       counsel and was thus unaware of his legal rights” is “more appropriately characterized . . . under Trial Rule
       60(B)(1)” than under Rule 60(B)(8). 645 N.E.2d 601, 604 (Ind. 1994).

       Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019                                 Page 8 of 9
       need not consider them. We reverse the trial court’s grant of Tichy’s motion for

       relief from judgment.


[13]   Reversed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-OV-2202 | April 16, 2019     Page 9 of 9
