MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 07 2016, 5:51 am
this Memorandum Decision shall not be
                                                                                     CLERK
regarded as precedent or cited before any                                        Indiana Supreme Court
                                                                                    Court of Appeals
court except for the purpose of establishing                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE THE
Todd Ess                                                     STATE OF INDIANA
Indianapolis, Indiana                                        Gregory F. Zoeller
                                                             Attorney General of Indiana
                                                             Kyle Hunter
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Krystal Wilburn,                                             April 7, 2016
Appellant-Defendant,                                         Court of Appeals Case No.
                                                             49A02-1509-MI-1491
         v.                                                  Appeal from the Marion Superior
                                                             Court
State of Indiana, and the                                    The Honorable Thomas Carroll,
Consolidated City of                                         Judge
Indianapolis/Marion County,                                  Trial Court Cause No.
and the Metropolitan Law                                     49D06-1502-MI-3740
Enforcement Agency,1
Appellees-Plaintiffs.




1
 Although only the State of Indiana filed an appearance on appeal for the Appellees-Plaintiffs, pursuant to
Indiana Appellate Rule 17(A), the parties of record in the trial court are also parties on appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016                     Page 1 of 7
      Pyle, Judge.


                                        Statement of the Case
[1]   After the State of Indiana, the Consolidated City of Indianapolis/Marion

      County, and the Metropolitan Law Enforcement Agency (collectively “the

      State”) filed a complaint for forfeiture against Kyle Tyson, (“Tyson”), Krystal

      Wilburn (“Wilburn”) intervened and filed a demand for jury trial pursuant to

      Article I, Section 20 of the Indiana Constitution. The State filed a motion to

      strike the demand, which the trial court granted after finding that the forfeiture

      was an equitable action and that no right to a jury trial exists in such cases.

      However, because we conclude that Wilburn’s demand was not timely filed

      pursuant to Indiana Trial Rule 38(B), we affirm its denial and do not reach the

      constitutional issue.


[2]   We affirm.


                                                      Issue
              Whether Wilburn’s jury demand was timely filed pursuant to
              Indiana Trial Rule 38(B).


                                                      Facts
[3]   On November 6, 2014, Indianapolis Metropolitan Police Department

      (“IMPD”) Covert Operations, with the assistance of the IMPD SWAT Team,

      served a search warrant on a residence occupied by Wilburn and Tyson. IMPD

      officers found drugs, drug paraphernalia, and $2,944. On February 4, 2015, the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 2 of 7
      State filed a forfeiture complaint against Tyson. The complaint alleged that the

      $2,944 “had been furnished or was intended to be furnished in exchange for a

      violation of a criminal statute, or [was] traceable as proceeds of a violation of a

      criminal statute, in violation of Indiana law, as provided in I.C. 34-24-1-1.”

      (App. 9).


[4]   In June 2015, Wilburn claimed an interest in the $2,944 and moved to intervene

      in the forfeiture action. She also moved for an enlargement of time to respond

      to the State’s complaint. The trial court granted Wilburn’s motions and ordered

      her to file her responsive pleading by July 10, 2015. Wilburn filed an answer

      and counterclaim on that date.


[5]   Approximately one month later, on August 13, 2015, Wilburn filed a demand

      for jury trial pursuant to Article I, Section 20 of the Indiana Constitution and

      Indiana Trial Rule 38. The State filed a motion to strike the demand.

      Specifically, the State argued that the language of Article I, Section 20 “has

      been interpreted to guarantee the right to a trial by jury only in actions at law

      which were triable to a jury prior to June 18, 1852. . . . Forfeiture proceedings

      are equitable in nature, and were not actions in law when the Indiana

      Constitution was ratified.” (App. 34-35).


[6]   The trial court agreed with the State and struck Wilburn’s jury trial demand.

      Specifically, the trial court found that Wilburn’s complaint was an equitable

      action and that no right exists to a jury trial in such cases. Wilburn filed a

      motion to certify the trial court’s ruling for interlocutory appeal. The trial court


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 3 of 7
      certified its order, and Wilburn filed a motion for permission to file an

      interlocutory appeal, which a panel of this Court granted.


                                                   Decision
[7]   Wilburn argues that the “trial court committed reversible error when it

      determined that the right to a jury trial in civil in rem forfeiture proceedings does

      not exist under Article I, Section 20 of the Indiana Constitution.” (Wilburn’s

      Br. 4). However, we generally avoid addressing constitutional questions if the

      case can be resolved on other grounds. Girl Scouts of Southern Illinois v. Vincennes

      Indiana Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013). Constitutional avoidance is

      a long-standing principle, and we will address constitutional questions only

      when it is “‘absolutely necessary to a disposition of the cause on its merits.’”

      Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 818 (Ind. 2012), reh’g denied,

      (quoting State v. Darlington, 153 Ind. 1, 5, 53 N.E. 925, 926 (1899)).


[8]   Here, the State contends that we need not address Wilburn’s constitutional

      issue because her jury trial demand was not timely filed. Wilburn responds that

      the State may not raise this issue for the first time on appeal. It has long been

      the general rule that an argument or issue presented for the first time on appeal

      is waived for the purposes of appellate review. Bureau of Motor Vehicles v.

      Guntner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015). However, in the Guntner

      case, we noted that our Indiana Supreme Court has recently signaled a shift

      away from this rule as far as appellees are concerned. Id. at 312. For example,

      we pointed out that in Citimortgage, 975 N.E.2d at 813, the supreme court stated


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 4 of 7
       that a party who has prevailed in the trial court may defend the trial court’s

       ruling on any ground, including grounds not raised at trial. Id. We also noted

       that this “rule is consistent with the presumption in all appeals that the trial

       court’s judgment is correct as well as the general rule that on appeal we will

       affirm a judgment on any theory supported by the record.” Id. See J.M. v.

       Review Bd. of Ind. Dep’t of Workforce Dev., 975 N.E.2d 1283, 1289 (Ind. 2012)

       (explaining that on appellate review the trial court’s judgment will be affirmed if

       sustainable on any theory or basis found in the record). Finding that the State

       did not fail to preserve its timeliness argument by failing to present it to the trial

       court, see Guntner, 27 N.E.3d at 312 (explaining that Guntner did not fail to

       preserve her due process claim by failing to present it to the trial court), we now

       address it.


[9]    Article I, Section 20 of the Indiana Constitution guarantees that ‘[i]n all civil

       cases, the right of trial by jury shall remain inviolate.” However, that right is

       not absolute and can be waived. Scott v. Crussen, 741 N.E.2d 743, 746 (Ind. Ct.

       App. 2000), reh’g denied, trans. denied.


[10]   Regarding jury trials, Indiana Trial Rule 38(B) provides as follows:


               (B) Demand. Any party may demand a trial by jury of any issue
               triable of right by a jury by filing with the court and serving upon
               the other parties a demand therefor in writing at any time after
               the commencement of the action and not later than ten (10) days
               after the first responsive pleading to the complaint, or to a
               counterclaim, cross claim or other claim if one properly is
               pleaded; and if no responsive pleading is filed or required within


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 5 of 7
               ten (10) days after the time such pleading otherwise would have
               been required. . . .


                                        *        *       *        *        *


               (D) Waiver. The failure of a party to appear at the trial, and the
               failure of a party to serve a demand as required by this rule and
               to file it as required by Rule 5(D) constitute waiver by him of trial
               by jury. . . .


               The trial court shall not grant a demand for trial by jury filed
               after the time fixed in T.R. 38(B) has elapsed except upon the
               written agreement of all of the parties to the action, which
               agreement shall be filed with the court and made a part of the
               record. . . .


[11]   Thus, a demand for a jury trial must be made by the requesting party no later

       than ten days after the first responsive pleading is due. Scott, 741 N.E.2d at 746.

       A party who fails to serve and file a demand for jury trial within the time

       allotted by Trial Rule 38(B) waives trial by jury unless the parties to the action

       file a written agreement. Ind. T.R. 38(D); Daughtery v. Robinson Farms, Inc., 858

       N.E.2d 192, 196 (Ind. Ct. App. 2006), trans. denied.


[12]   Here, Wilburn filed her responsive pleading on July 10, 2015. Her jury trial

       demand was therefore due on or before July 20, 2015. However, Wilburn did

       not file her demand until August 13, 2015, which was well beyond the ten-day

       prescribed time period. In addition, the parties did not file a written agreement

       with the court. Wilburn has waived her right to a jury trial by failing to make a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 6 of 7
       timely demand. See Daughtery, 858 N.E.2d at 196 (holding that Daughtery

       waived his right to a jury trial by failing to make a timely demand).


[13]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-MI-1491 | April 7, 2016   Page 7 of 7
