                                                                         FILED
                                                                     Aug 20 2019, 7:56 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR ESTATE OF                                     ATTORNEY FOR APPELLEE
APPELLANT                                                  BRIANNA FINNEY
Zachary F. Stewart                                         Kevin Howard Willis
Jeffersonville, Indiana                                    Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Clifton E. Sharp,                                          August 20, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-467
        v.                                                 Appeal from the Clark Circuit
                                                           Court
State of Indiana,                                          The Honorable J. Terrence Cody,
Appellee-Plaintiff,                                        Special Judge
                                                           Trial Court Cause No.
        and                                                10C02-1703-F2-9

Brianna Finney,
Appellee-Claimant,




Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019                           Page 1 of 7
[1]   After Clifton Sharp died, litigation ensued between Brianna Finney, who had

      posted his bond while he was incarcerated, and his estate (the Estate) as to who

      is entitled to receive the bond money. The trial court found that the Estate has

      standing to make a claim for the money but that summary judgment should be

      entered in favor of Finney. Finding that the trial court properly concluded that

      the Estate has standing but improperly entered judgment beyond that issue

      because there are factual matters to be developed, we affirm in part, reverse in

      part, and remand for further proceedings.


                                                          Facts
[2]   On March 29, 2017, Sharp was charged in Clark County with multiple felonies,

      including drug possession, maintaining a common nuisance, and drug

      trafficking. The Estate alleges that while in custody, Sharp negotiated the sale

      of one of his vehicles to the family of a fellow inmate in exchange for $19,000.

      The money for the sale was received by Finney, who used part of it to post

      Sharp’s $10,000 bond1 on January 29, 2018. In April 2018, after Sharp’s

      release, Finney shot and killed him.2 At no time was his bond ever revoked.




      1
       In Clark County, inmates are not permitted to post their own bond and must instead find a third party to do
      so on their behalf.
      2
          Finney has not been charged with a crime and maintains that she acted in self-defense.


      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019                               Page 2 of 7
[3]   On April 20, 2018, Finney filed a motion in the criminal case seeking release of

      the bond money to her. At some point, the Estate also made a claim for the

      bond money and asked that it be released to the Estate.


[4]   On July 6, 2018, Finney filed a motion for summary judgment on the issue of

      the Estate’s standing to claim the bond money. Included in her designated

      evidence was her own affidavit, which attested that she had posted the $10,000

      bond but did not assert that the money belonged to her when she posted it.

      Appellee’s App. Vol. II p. 12. The Estate did not file a timely responsive

      pleading. On August 20, 2018, Finney filed a motion for judgment based on

      the Estate’s failure to respond to the summary judgment motion and the Estate

      filed a response to the motion for judgment.


[5]   On August 30, 2018, the trial court denied Finney’s summary judgment

      motion, finding that the Estate had standing to make a claim. Because the case

      now presented an issue of fact, the trial court scheduled an evidentiary hearing.


[6]   On October 15, 2018, the trial judge recused himself from the case. On January

      4, 2019, the new judge held a hearing to familiarize himself with the

      proceedings and to determine the best way to move forward. The hearing

      consisted solely of a discussion between the attorneys and the judge; no

      evidence was presented. On January 28, 2019, the trial court entered an order,

      finding that the Estate had standing. It also went on to address the merits,

      finding that Finney was entitled to judgment as a matter of law based on the

      record before it. The Estate now appeals.


      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019         Page 3 of 7
                                    Discussion and Decision
[1]   Our standard of review on summary judgment is well established:


              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[2]   By entering a second summary judgment order, the second trial judge overrode

      the summary judgment order entered by his predecessor. The Estate argues

      that this should not have been permitted because Finney never asked that the

      first order be set aside or corrected for error. At the hearing, the following

      comments were made:


          • Finney’s attorney: “we just weren’t sure, based upon the recusal, if you
            were planning on starting all over again or, you know, if that hearing had
            been all of the arguments and evidence offered, we weren’t sure if that all
            just goes away with the recusal and if we have to start all over again or if
            we’re picking up where we left off.” Appellant’s App. Vol. II p. 91.

          • The Estate’s attorney: “[m]y inclination, Judge, would be that we
            would, obviously, has to be something to be ready to present evidence to

      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019         Page 4 of 7
              this Judge and give you the opportunity to hear the evidence, judge the
              credibility of the witnesses and go forward . . . .” Id. at 91-92.

          • The Estate’s attorney: “. . . I believe it’s, the Court’s pervue [sic] to
            decide whether you take the record and you rule or you want to begin a
            new [hearing] on recusal, because of the recusal.” Id. at 93.

      The attorneys then proceeded to summarize their legal arguments regarding

      both standing and the ultimate issue of who has the right to the bond money.

      We find that by engaging in this discussion, there was an implicit request by

      Finney to reconsider the first trial judge’s ruling on the issue of standing and an

      implicit agreement to do so by the Estate. Therefore, the trial court did not err

      by reconsidering the first summary judgment order.


[3]   The second summary judgment order resolved two issues: first, whether the

      Estate had standing; and second, which party was entitled to the bond money.

      The trial court’s order held that the Estate has standing to claim the bond

      money. Obviously, the Estate does not disagree with this part of the order, nor

      does Finney argue the issue in her brief.


[4]   Since it has been established that the Estate has standing to make this claim,

      what remains to be determined is whether the trial court properly entered final

      judgment in Finney’s favor given that the summary judgment proceedings

      related only to the issue of standing. Cutting to the proverbial chase, we find

      that by making arguments related to the ultimate issue and failing to object to

      its consideration without another hearing, the Estate has invited any error that




      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019         Page 5 of 7
      may have occurred with respect to the trial court’s decision to consider the

      ultimate issue.3


[5]   That said, we also find that the trial court erred by entering judgment as a

      matter of law in favor of Finney. While Finney has stated that she posted

      Sharp’s bond, she has never claimed that the money was hers. Indiana Code

      section 35-33-8-3.2(b) states that “[w]ithin thirty (30) days after disposition of

      the charges against the defendant,[4] the court that admitted the defendant to

      bail shall order the clerk to remit the amount of the deposit remaining . . . to the

      defendant.” The presumption, therefore, is that the bond money is remitted to

      the defendant—or, here, his estate.


[6]   Of course, it may be the case that another individual—here, Finney—has a

      claim to the money. See Garner v. Kempf, 93 N.E.3d 1091, 1098 (Ind. 2018)

      (observing that bond proceeds “presumptively belong to the defendant and are

      to be returned to the defendant unless . . . someone else has a claim to that

      property” and that an example of such a situation would be “when the bond is




      3
        We do agree with the Estate, however, that it was not on notice that Finney’s summary judgment motion
      went beyond the issue of standing until the hearing. Therefore, the fact that the Estate did not designate
      evidence related to the ultimate issue should not be held against it. See Reiswerg v. Statom, 926 N.E.2d 26, 30
      (Ind. 2010) (holding that “[a] party responding to a motion for summary judgment is entitled to take the
      motion as the moving party frames it”). Moreover, the mere fact that the Estate did not respond to the
      summary judgment motion does not mean that Finney’s motion should automatically have been granted.
      Quirk v. Delaware Cty., 91 N.E.3d 1008, 1013 (Ind. 2018) (holding that a trial court is not required to grant an
      unopposed summary judgment motion; summary judgment is awarded on the merits of the motion rather
      than on technicalities).
      4
       The State dismissed all charges against Sharp after his death. At that point, therefore, the charges had been
      disposed of.

      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019                                   Page 6 of 7
      posted not by the defendant himself but by a third party on the defendant’s

      behalf”).


[7]   Here, the parties have not had the opportunity to develop a record regarding

      whether Finney’s claim to the money overcomes the presumption that it should

      go to the Estate. We find that there is an issue of fact in this regard, as it cannot

      be determined from the record before us whether Finney was acting as Sharp’s

      agent when she posted the bond, using his own money on his behalf, or was,

      instead, acting on her own behest with her own money—or, in either event,

      whether Sharp was a third-party beneficiary of the bond contract between

      Finney and the clerk. Under these circumstances, it was improper to enter

      summary judgment on anything beyond the issue of the Estate’s standing.


[8]   The judgment of the trial court is affirmed in part, reversed in part, and

      remanded for further proceedings.


      Kirsch, J., and Crone, J., concur.




      Court of Appeals of Indiana | Opinion 19A-CR-467 | August 20, 2019           Page 7 of 7
