ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                         Karen Huelskamp
Attorney General of Indiana                                Indianapolis, Indiana
Andrew A. Kobe
Deputy Attorney General
Kyle Hunter
Deputy Attorney General                                              Jan 29 2015, 9:58 am
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana, Consolidated                            January 29, 2015
City of Indianapolis/Marion                               Court of Appeals Cause No.
County, the Metropolitan Law                              49A05-1406-MI-257
Enforcement Agency, the                                   Appeal from the Marion Superior
Indiana State Police, the Marion                          Court, The Honorable David. A.
                                                          Shaheed, Judge
County Prosecutor, and the
                                                          Cause No. 49D01-1311-MI-0432384
Indiana Department of Revenue,
Appellants,

        v.

El Rodeo #11, LLC,
Appellee.



Mathias, Judge.




Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                  Page 1 of 10
[1]   The State of Indiana, the Consolidated City of Indianapolis/Marion County,

      the Metropolitan Law Enforcement Agency, the Indiana State Police, the

      Marion County Prosecutor, and the Indiana Department of Revenue

      (collectively “Marion County”) appeal the Marion Superior Court’s order

      granting El Rodeo #11’s motion to return improperly seized funds. Specifically,

      Marion County argues that the trial court erred when it ordered Marion County

      to return El Rodeo’s funds because the funds were seized by and are being held

      in the Tippecanoe County Prosecutor’s Office.


[2]   We reverse and remand for proceedings consistent with this opinion.



                             Facts and Procedural History
[3]   On November 10, 2012, El Rodeo #11, which is located in Greenfield, Indiana,

      was completely destroyed by a fire. Appellant’s App. p. 58. El Rodeo #11

      submitted a claim for property losses to its insurance company, and the claim

      was settled for $1,152,570.73. El Rodeo #11 deposited the insurance proceeds

      into an account at Chase Bank, which was opened specifically to receive those

      funds. The funds were eventually withdrawn from the Chase account and

      transferred to an account at PNC Bank, which also held only the insurance

      proceeds. El Rodeo #11 paid certain construction costs from those funds, and

      in November 2013, the PNC account had a balance of $967,840,81.


[4]   Prior to November 18, 2013, the Tippecanoe County Prosecutor’s Office served

      a warrant for seizure of El Rodeo #11’s funds in the PNC Bank account. The


      Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 2 of 10
      bank issued a cashier’s check in the amount of $967,840.81 and gave the check

      to the Tippecanoe County Prosecutor’s Office.

[5]   On November 18, 2013, the Marion Superior Court, at the request of the

      Marion County Prosecutor’s Office, issued an order to freeze El Rodeo #11’s

      PNC bank account. The order froze the PNC Bank account’s assets, but the

      account balance was zero.

[6]   Shortly thereafter, Marion County filed a Complaint for Forfeiture demanding

      judgment against numerous defendants for forfeiture of certain funds held by

      the defendants at various banks. El Rodeo #11 was named as a defendant in the

      complaint. The complaint alleged that the funds “had been furnished or w[ere]

      intended to be furnished in exchange for a violation of a criminal statute, or

      [are] traceable as proceeds of a violation of a criminal statute, in violation of

      Indiana law, as provided in I.C. 34-24-1-1.” Id. at 32.


[7]   The forfeiture complaint was amended on December 3, 2013, and specifically

      named El Rodeo #11’s “$967,840.81 in U.S. Currency Located in PNC Bank,

      Acct. ending in 2997” as a defendant. Id. at 37. Marion County also added a

      second count to the complaint and alleged that the named defendants “have

      participated in, constructed, and continued to operate a corrupt enterprise,

      through a pattern of racketeering activity, as defined in I.C. 34-24-2-1.” Id. at

      38.

[8]   El Rodeo #11 filed an answer and affirmative defenses but also filed a “Motion

      to Return Insurance Proceeds Improperly Seized.” In response, Marion County

      Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 3 of 10
       filed a motion to dismiss El Rodeo #11 from its forfeiture complaint because

       the Tippecanoe County Prosecutor’s Office has possession of El Rodeo #11’s

       funds and has also filed a forfeiture complaint against El Rodeo #11.


[9]    On May 7, 2014, the trial court held a hearing on El Rodeo #11’s motion for

       return of insurance proceeds and Marion County’s motion to dismiss. A

       representative of the Tippecanoe County Prosecutor’s Office was also present at

       the hearing. Marion County argued that El Rodeo #11’s motion should be

       denied because Marion County had “nothing to give back to [El Rodeo #11]

       because the funds are physically in Tippecanoe County.” Tr. p. 22. Marion

       County also argued that because identical forfeiture proceedings were pending

       in both Marion and Tippecanoe Counties, pursuant to Trial Rule 12(B)(8), the

       Marion County proceedings should be dismissed. Marion County conceded

       that the funds at issue were insurance proceeds but would not agree that the

       funds were not subject to forfeiture.1 Tr. p. 35.


[10]   However, Marion County implied that the funds could be released to El Rodeo

       #11 if it would agree that Marion County could “add El Rodeo #11 the actual

       property and business to its forfeiture complaint.” Tr. p. 37. Marion County

       proposed that the funds would be released in installments “as long as [El Rodeo

       #11] provide[s] proper accounting for what” the funds are spent. Tr. p. 38.

       Marion County also stated that it could not “compel [Tippecanoe County] to

       give that money over. We had talked about the offer, I believe that can be done

       1
         Marion County argued that proceeds of insurance are forfeitable if they were the proceeds of wrongdoing,
       i.e. if the policy was purchased with illegally obtained funds. Tr. p. 42.

       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                      Page 4 of 10
       through mutual cooperation, if everyone is agreeable to that solution.” Id. El

       Rodeo #11 responded that the funds should have never been seized and Marion

       County was “in no position to demand any kind of terms and conditions for the

       release of the money.” Tr. p. 39.

[11]   The trial court denied Marion County’s motion to dismiss. The court granted

       El Rodeo #11’s motion for return of its insurance proceeds and ordered Marion

       County to “return, or cause to be returned, the $967,840.81 seized improperly

       from the account of El Rodeo #11 within five (5) business days from the date”

       of its May 7, 2014 order. Marion County requested a stay of the trial court’s

       order and requested that the trial court clarify whether the court “has granted

       summary judgment to Defendants on the claim of forfeiture to the disputed

       funds” or whether the court’s order only affects possession of the funds

       “without deciding the merits of Plaintiff’s complaint.” Appellant’s App. p. 152.

[12]   On May 16, 2014, El Rodeo #11 filed a petition requesting that the trial court

       hold Marion County in contempt of court for failing to return its seized funds.

       On May 22, the trial court issued a show cause order and directed Marion

       County to “bring with them to the [June 18, 2014] hearing a check either

       endorsed by the appropriate party, or made directly payable to El Rodeo #11,

       in the amount of $967,840.81.” Id. at 158. On June 6, 2014, Marion County

       filed an interlocutory appeal of right pursuant to Indiana Appellate Rule 14(A).




       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 5 of 10
                                   Discussion and Decision
[13]   Marion County argues that the trial court erred when it was ordered to return

       funds to El Rodeo #11, which were never seized by the Marion County

       Prosecutor’s Office and are “being legally held pursuant to a different case now

       pending in Tippecanoe County.” Appellant’s Br. at 6. Marion County

       contends that El Rodeo #11 needs to seek relief in Tippecanoe County, which

       is holding the funds “under the authority of a court in that county.” Id. at 6.

       Finally, Marion County argues that the trial court “had no jurisdiction to order

       payment of funds being held under the authority and order of” the Tippecanoe

       Superior Court. Id. at 7.


[14]   In response, El Rodeo #11 contends that the Tippecanoe County Prosecutor is

       an agent of the State of Indiana, as is the Marion County Prosecutor. Therefore,

       it does not matter which prosecutor’s office is holding El Rodeo’s funds because

       the “agency holds it by and under the laws of the State of Indiana.” Appellee’s

       Br. at 6. El Rodeo #11 claims that the trial court’s order does not infringe on

       the authority of the Tippecanoe Superior Court because the trial court

       effectively ordered the State of Indiana to return El Rodeo #11’s funds.

       Specifically, El Rodeo #11 argues that the plaintiff “is the State of Indiana not

       the Marion County Prosecutor. The Marion County Prosecutor represents the

       State of Indiana as its attorney. . . . The money is being held by a subdivision of

       the State of Indiana not a different government agency.” Id. at 7.




       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 6 of 10
[15]   Our General Assembly has authorized county prosecutors to represent the State

       and the State Police in certain civil forfeiture actions. See State v. Combs, 921

       N.E.2d 846, 852 (Ind. Ct. App. 2010); see also Ind. Code § 34-24-1-3

       (authorizing the “prosecuting attorney for the county in which the seizure

       occurs” to bring a civil forfeiture action “in the name of . . . the state and the

       unit that employed the law enforcement officers who made the seizure”). In this

       case, the Marion County Prosecutor’s Office initiated the forfeiture action on its

       own behalf, the State, the State Police, the City of Indianapolis, the

       Metropolitan Law Enforcement Agency, and the Indiana Department of

       Revenue.


[16]   However, while Marion County was able to freeze El Rodeo #11’s PNC Bank

       account, the Tippecanoe County Prosecutor’s Office had already seized the

       funds in that account under the authority of the Tippecanoe Superior Court. It

       is undisputed that the Marion County Prosecutor’s Office is not in possession of

       El Rodeo #11’s funds. On the date of the hearing in this case, the Tippecanoe

       County Prosecutor’s Office retained possession and control over the seized

       funds. The seized funds have not been turned over to the State.

[17]   The “prosecuting attorney for the county in which the seizure occurs may, . . .

       cause an action for reimbursement of law enforcement costs and forfeiture to be

       brought by filing a complaint in the circuit or superior court in the jurisdiction

       where the seizure occurred.” I.C. § 34-24-1-3 (emphasis added). Also, Indiana

       Code section 34-24-2-2 allows “[t]he prosecuting attorney in a county in which

       any of the property is located [to] bring an action for the forfeiture of any
       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 7 of 10
       property: (1) used in the course of; (2) intended for use in the course of; (3)

       derived from; or (4) realized through; conduct in violation of IC 35-45-6-2,”

       which statute defines corrupt business influence. (Emphasis added).


[18]   El Rodeo #11’s property was seized by and located in Tippecanoe County

       when the Marion County Prosecutor’s Office filed its November 21, 2013,

       complaint for forfeiture. Therefore, the Marion County Prosecutor’s Office

       could not meet the statutory requirements for filing a forfeiture complaint under

       either Indiana Code section 34-24-1-3 or Indiana Code section 34-24-2-2.


[19]   Marion County filed a motion to dismiss its forfeiture complaint against El

       Rodeo #11 because the Tippecanoe County Prosecutor’s Office possesses El

       Rodeo #11’s funds. Appellant’s App. pp. 160-62. Because El Rodeo #11’s

       funds were not located in Marion County, the trial court should have granted

       Marion County’s motion to dismiss.

[20]   The trial court also improperly granted El Rodeo #11’s motion to return

       insurance proceeds improperly seized. First, we observe that El Rodeo #11

       inexplicably filed this motion in the Marion Superior Court forfeiture action

       even though its funds were seized and are in the custody of the Tippecanoe

       County Prosecutor’s Office. The record does not disclose whether El Rodeo

       #11 has filed a similar motion in Tippecanoe County.

[21]   None of the named plaintiffs, including the State and the State Police, are in

       possession of the seized funds; therefore, Marion County is unable to provide

       the relief ordered by the trial court. “A case is deemed moot ‘when no effective

       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 8 of 10
       relief can be rendered to the parties before the court.’” State v. Downey, 14

       N.E.3d 812, 816 (Ind. Ct. App. 2014) (quoting Samm v. State, 893 N.E.2d 761,

       765 (Ind. Ct. App. 2008)), trans. pending. El Rodeo #11’s request for the seized

       funds is moot because Marion County cannot produce funds that it does not

       (and never) possessed. See Downey, 14 N.E.3d at 816 (concluding that

       Downey’s request for funds was moot because the State turned his seized funds

       over to the federal government pursuant to court order).

[22]   Moreover, the Tippecanoe County Prosecutor’s Office is not a named party in

       this case,2 and we disagree with El Rodeo #11’s assertion that it does not matter

       which prosecutor’s office is holding El Rodeo #11’s funds because the “agency

       holds it by and under the laws of the State of Indiana.” Appellee’s Br. at 6.

       County prosecutors are part of the executive branch of government, and the

       office “represents the executive in the enforcement of the criminal laws of the

       state.” Schweitzer v. State, 700 N.E.2d 488, 493 (Ind. Ct. App. 1998) (Sullivan,

       J., concurring in result), trans. denied. However, county prosecutors represent

       “the state of Indiana in all criminal matters arising within his [or her]

       jurisdiction” unless he or she is disqualified “for some reason.” State ex re.

       Powers v. Vigo Circuit Court, 236 Ind. 408, 412, 140 N.E.2d 497, 499 (1957).


[23]   El Rodeo #11 would have us hold that a judgment against the State may be

       enforced against any political subdivision within the State. Such a conclusion is

       illogical and untenable. El Rodeo #11 does not cite, and our research does not

       2
        However, a representative from the Tippecanoe Prosecutor’s Office was present at the hearing held on May
       7, 2014.

       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015                   Page 9 of 10
       reveal, any authority for its proposition that the trial court’s judgment against

       Marion County can be used to compel Tippecanoe County to return the seized

       funds in its possession to El Rodeo #11. For all of these reasons, we conclude

       that the trial court erred when it granted El Rodeo #11’s “Motion to Return

       Insurance Proceeds Improperly Seized.”



                                                Conclusion
[24]   We reverse and remand this case to the trial court with instructions to grant

       Marion County’s motion to dismiss its forfeiture complaint against El Rodeo

       #11, and we vacate the trial court’s order granting El Rodeo #11’s motion to

       return insurance proceeds.


[25]   Reversed and remanded for proceedings consistent with this opinion.

       Najam, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1406-MI-257 | January 29, 2015   Page 10 of 10
