Opinion

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before

any court except for the purpose of FILED

establishing the defense of res judicata, Jun 08 2012, 8:28 am

collateral estoppel, or the law of the case.

CLERK

of the supreme court,

court of appeals and

tax court

APPELLANT PRO SE: ATTORNEYS FOR APPELLEES STATE

OF INDIANA, THE SHELBY COUNTY

KENT A. EASLEY PROSECUTOR’S OFFICE, R. KENT

Plainfield, Indiana APSLEY, and J. BRAD LANDWERLEN:

GREGORY F. ZOELLER

Attorney General of Indiana

JANINE STECK HUFFMAN

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEES SHELBY

COUNTY PROBATION DEPARTMENT,

DEANNA HOLDER, SHELBY COUNTY

SUPERIOR COURT ONE CLERK, VICKI

FRANKLIN, and CAROL STOHRY:

JOHN T. ROY

Travelers Staff Counsel Office

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENT A. EASLEY, )

)

Appellant-Plaintiff, )

)

vs. ) No. 49A02-1109-CT-975

)

STATE OF INDIANA, SHELBY COUNTY )

PROSECUTOR’S OFFICE, R. KENT APSLEY, )

J. BRAD LANDWERLEN, SHELBY COUNTY )

PROBATION DEPARTMENT, DEANNA )

HOLDER, SHELBY COUNTY SUPERIOR )

COURT ONE CLERK, VICKI FRANKLIN, and )

CAROL STOHRY, )

)

Appellees-Defendants. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Theodore M. Sosin, Judge

Cause No. 49D02-1104-CT-12691

June 8, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant-Plaintiff Kent Easley appeals the trial court’s order dismissing his cause of

action against Appellees-Defendants State of Indiana, Shelby County Prosecutor’s Office, R.

Kent Apsley, J. Brad Landwerlen, Shelby County Probation Department, Deanna Holder,

Shelby County Superior Court One Clerk, Viki Franklin, and Carol Stohry (collectively

“Appellees”). Easley raises numerous issues on appeal which we restate as follows:

I. Whether the trial court abused its discretion in granting the Appellees’

motion to dismiss; and

II. Whether the trial court abused its discretion in denying Easley’s motion

for a default judgment.

Concluding that the trial court acted within its discretion in dismissing Easley’s cause of

action against the Appellees and in denying Easley’s motion for a default judgment, we

affirm.

FACTS AND PROCEDURAL HISTORY

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Our opinion in Easley’s direct appeal of the trial court’s first determination that he

violated the terms of his probation instructs us as to the underlying facts leading to this

appeal:

In 2000, Easley pleaded guilty to two counts of dealing cocaine, both as

Class B felonies, and one Class A misdemeanor possession of marijuana.

Pursuant to a plea agreement, he was sentenced to twenty years with ten years

suspended on each of the two Class B felonies and one year on the Class A

misdemeanor, to be served concurrently, followed by ten years of probation.

On June 14, 2007, the probation department filed a petition to revoke

probation alleging that Easley had committed the offense of battery while on

probation. Thereafter, on June 27, 2008, the probation department filed an

addendum to its petition to revoke probation alleging that Easley had

consumed alcohol while on probation. A fact-finding hearing was held on the

State’s petition to revoke probation, and addendum thereto, on August 8, 2008,

and the court determined that Easley violated his probation. At the

dispositional hearing on August 29, 2008, the court imposed three years of

Easley’s previously suspended sentence.

Easley v. State, 73A04-0810-CR-580 slip op. p. 1 (Ind. Ct. App. August 4, 2009). On appeal,

this court affirmed the trial court’s order revoking Easley’s probation and remanded the

matter to the trial court for a determination regarding the amount of credit time to which

Easley was entitled. Id. at p. 8. On September 29, 2009, the Shelby County Superior Court

issued an order modifying its prior sentencing order.

On February 24, 2010, the Shelby County Probation Department filed a second

petition to revoke Easley’s probation. On June 3, 2010, the Shelby County Probation

Department filed an addendum to the February 24, 2010 petition to revoke Easley’s

probation. On July 14, 2010, the trial judge recused himself from the probation revocation

hearings pursuant to Canon 3(E) of the Code of Judicial Conduct. The Honorable Dan

Marshall of the Hancock Superior Court was appointed special judge and assumed

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jurisdiction over the probation revocation proceedings. On September 20, 2010, the Shelby

County Probation Department filed a second addendum to the February 24, 2010 petition to

revoke Easley’s probation. A “rearrest” warrant was issued and was served on Easley on

October 29, 2010. Appellant’s App. p. 24. A disposition hearing was conducted on

December 17, 2010. Following the disposition hearing, the Shelby County Superior Court

issued an order in which it apparently determined that Easley had again violated the terms of

his probation.1

On April 1, 2011, Easley filed a civil complaint in Marion County Superior Court

challenging the actions of the Appellees in connection to the revocation of his probation.

The complaint sought money damages for an alleged illegal probation revocation. Service

was made on the Appellees on April 18 and 19, 2011. On April 26, 2011, an attorney for the

State of Indiana, the Shelby County Prosecutor’s Office, and the Appellees associated with

the Prosecutor’s Office filed an appearance, a motion to dismiss, and a memorandum in

support of the motion to dismiss. The trial court granted the motion to dismiss, with

prejudice, on April 29, 2011.

On May 16, 2011, Easley moved to amend his complaint. The trial court initially

denied Easley’s motion, but, on May 18, 2011, vacated its April 29, 2011 order dismissing

Easley’s appeal and scheduled a hearing on the motion to dismiss for July 12, 2011. On June

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Our review of the Shelby County Superior Court’s order is impeded by the parties’ failure to provide

the order to this court on appeal. The Chronological Case Summary, however, indicates that Easley was found

to have violated the terms of his probation because he remained incarcerated following the disposition hearing.

Further, the documents relating to the instant civil appeal seem to indicate that Easley remained incarcerated

after having been found to have violated the terms of his probation.

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1, 2011, an attorney for the remaining Appellees filed an appearance and a notice of joinder

in the motion to dismiss.

On June 2, 2011, Easley filed a motion for default judgment against the Appellees

who had filed their appearance on June 1, 2011. On June 21, 2011, the trial court made a

docket entry indicating that it would hear arguments relating to Easley’s motion for default

judgment at the July 12, 2011 hearing. During the July 12, 2011 hearing, the trial court heard

argument from the parties relating to the Appellees’ motion to dismiss and Easley’s motion

for default judgment. On August 30, 2011, the trial court granted the Appellees’ motion to

dismiss and denied any remaining pending motions, including Easley’s motion for default

judgment. This appeal follows.

DISCUSSION AND DECISION

Initially, we note that our review of Easley’s claims is impeded because his appellate

brief is largely devoid of cogent argument. See generally, Ind. Appellate Rule 46(A)(8)(a)

(providing that an appellant’s brief “must contain the contentions of the appellant on the

issues presented, supported by cogent reasoning.”) However, in light of our preference for

deciding cases on their merits, we will attempt to resolve Easley’s claims, where possible, on

the merits.

I. Whether the Trial Court Abused its Discretion

in Granting the Appellees’ Motion to Dismiss

Easley contends that the trial court abused its discretion in granting the Appellees’

motion to dismiss. For their part, the Appellees claim that the trial court properly granted

their motion to dismiss because Easley’s lawsuit is a collateral attack on the judgment of the

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Shelby County Superior Court under Cause Number 73D01-0004-CF-28 (“Cause No. CF-

28”), and also because they are subject to absolute immunity.

It is well settled that a complaint may not be dismissed for failure to state a

claim upon which relief can be granted unless it is clear on the face of the

complaint that the complaining party is not entitled to relief. McQueen v.

Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999). We view

the pleadings in the light most favorable to the nonmoving party and draw

every reasonable inference in favor of that party. Borgman v. Aikens, 681

N.E.2d 213, 216 (Ind. Ct. App. 1997). When reviewing a motion to dismiss

for failure to state a claim, this court accepts as true the facts alleged in the

complaint. We will affirm a successful Trial Rule 12(B)(6) motion when a

complaint states a set of facts, which, even if true, would not support the relief

requested in that complaint. We will affirm the trial court’s ruling if it is

sustainable on any basis found in the record. Minks v. Pina, 709 N.E.2d 379,

381 (Ind. Ct. App. 1999).

City of New Haven v. Reichhart, 748 N.E.2d 374, 377-78 (Ind. 2001).

A. Collateral Attack

On appeal, the Appellees claim that the trial court properly granted their motion to

dismiss because the civil lawsuit filed by Easley in the trial court was a collateral attack on

the Shelby County Superior Court’s judgment in Cause No. CF-28. As a general principle,

when an action is pending before one Indiana court, other Indiana courts must defer to that

court’s authority over the case. Cinergy Corp. v. St. Paul Surplus Lines Ins. Co., 785 N.E.2d

586, 590 (Ind. Ct. App. 2003), trans. denied. Courts observe such deference in the interests

of fairness to litigants, comity between and among the courts of this State, and judicial

efficiency. Id. at 590-91. The court in which a case is first instituted has exclusive

jurisdiction over the case. Grand Trunk W. R. Co. v. Kapitan, 698 N.E.2d 363, 366 (Ind. Ct.

App. 1998). “Once a court has acquired exclusive jurisdiction over a case, the case is

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pending in that court within the meaning of Trial Rule 12(B)(8).” Id.

Our review of the record indicates that in filing the instant matter in the trial court,

Easley effectively sought to have the revocation of his probation by the Shelby County

Superior Court overturned. The Shelby County Superior Court first acquired jurisdiction

over this case and never relinquished jurisdiction.2 Thus, the Shelby County Superior Court

had exclusive jurisdiction over all matters relating to the probation revocation proceedings.

See Kapitan, 698 N.E.2d at 366. Because the subsequent lawsuit that was filed in the trial

court effectively amounts to a collateral challenge to the judgment of the Shelby County

Superior Court, we conclude that the trial court properly deferred to the Shelby County

Superior Court’s authority over Easley’s case. Cinergy, 785 N.E.2d at 590.

B. Immunity

Furthermore, to the extent that Easley’s lawsuit seeks recovery in addition to having

the judgment of the Shelby County Superior Court overturned, the Appellees also claim that

the trial court properly granted their motion to dismiss because each of the Appellees has

absolute immunity and cannot be found liable with regard to Easley’s claims.

1. State of Indiana, the Shelby County Prosecutor’s Office, and Individuals

Associated with the Prosecutor’s Office

2

To the extent that Easley argues that the Shelby County Superior Court did not properly acquire

jurisdiction over the underlying criminal matter, we conclude that any argument relating to Easley’s

jurisdictional claims with regard to the initial underlying criminal charges is waived on appeal because

Easley’s complaint that was filed in the trial court refers only to his allegedly “illegal arrest” after he violated

the terms of his probation. See Chambers v. State, 247 Ind. 445, 448, 215 N.E.2d 544, 546 (1966) (providing

that an issue cannot be raised for the first time on appeal). Furthermore, to the extent that Easley did raise his

challenge to the underlying criminal proceedings, we are unable to review Easley’s claims because he has

failed to develop the argument with cogent reasoning. See generally, Ind. Appellate Rule 46(A)(8)(a)

(providing that an appellant’s brief “must contain the contentions of the appellant on the issues presented,

supported by cogent reasoning.”).

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As an agent of the State, a prosecutor is absolutely immune from civil liability based

on performance of prosecutorial functions, i.e., initiation of criminal charges and serving as

the State’s advocate in judicial proceedings. See Foster v. Pearcy, 270 Ind. 533, 537, 387

N.E.2d 446, 449 (1979). In addition, the Indiana Tort Claims Act expressly exempts the

initiation of a judicial or an administrative proceeding and the performance of a discretionary

function from liability. Indiana Code § 34-13-3-3(6) and (7). This statutory immunity does

not require a finding that the prosecutor engaged in “prosecutorial” acts. Rather, any act

within the scope of the duties of the prosecutor’s office is covered. See generally, Sims v.

Barnes, 689 N.E.2d 734, 737-38 (Ind. Ct. App. 1997), trans. denied.

In the instant matter, with respect to the State of Indiana, the Shelby County

Prosecutor’s Office, R. Kent Apsley, and J. Brad Landwerlen, we observe that Easley does

not appear to allege that any of these Appellees committed any tortious act that was outside

of the scope of the authority granted to prosecuting attorneys. Thus, these individuals and

entities are absolutely immune and no liability could attach. See Foster, 270 Ind. at 537, 387

N.E.2d at 449 (providing that no liability will attach to acts that are reasonably within the

general scope of authority granted to prosecuting attorneys); Sims, 689 N.E.2d at 737-38

(providing that any act within the scope of the duties of the prosecutor’s office is covered by

absolute immunity).

2. The Shelby County Superior Court One Clerk,

Vicki Franklin, and Carol Stohry

[A]bsolute judicial immunity extends to persons performing tasks so

integral or intertwined with the judicial process that these persons are

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considered an arm of the judicial officer who is immune. [J.A.W. v. State, 650

N.E.2d 1142, 1151-52 (Ind. Ct. App. 1995), as affirmed by J.A.W. v. State, 687

N.E.2d 1202, 1215 (Ind. 1997)]. Moreover, we have held that the act of

executing or enforcing a court order is a function intrinsically associated with

judicial proceedings. Id., at 1152. Moreover, a non-judicial officer who acts

in furtherance of a valid court order cannot be deprived of immunity. Id.

Newman v. Deiter, 702 N.E.2d 1093, 1100 (Ind. Ct. App. 1998), trans. denied.

Easley has failed to set forth any basis for liability against the Shelby County Superior

Court One Clerk, Vicki Franklin, and Carol Stohry. Easley’s complaint generally alleges that

the Shelby County Probation Department improperly filed a petition to revoke his probation

and does not contain any specific argument relating to these Appellees or allege any improper

act by these Appellees. Furthermore, to the extent that Easley’s complaint could be read to

include a claim that these Appellees should be liable for processing the allegedly defective

warrant on instruction from the Shelby County Superior Court, again, “the act of executing or

enforcing a court order is a function intrinsically associated with judicial proceedings”

making these Appellees entitled to absolute judicial immunity. See Newman, 702 N.E.2d at

1100. As such, because these Appellees are, at most, alleged to have processed the arrest

warrant in accordance with the court’s order, they are absolutely immune from any potential

liability.

3. The Shelby County Probation Department and Deana Holder

Again, absolute judicial immunity extends to persons performing tasks so integral or

intertwined with the judicial process that these persons are considered an arm of the judicial

officer who is immune. Newman, 702 N.E.2d at 1100. A probation office and probation

officers are appointed by the court, serve at the pleasure of the appointing court, and are

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directly responsible and subject to the orders of the court. Indiana Code section 11-13-1-1.

Pursuant to Indiana Code section 11-13-1-3, a probation officer shall:

(1) conduct prehearing and presentence investigations and prepare reports as

required by law;

(2) assist the courts in making pretrial release decisions;

(3) assist the courts, prosecuting attorneys, and other law enforcement officials

in making decisions regarding the diversion of charged individuals to

appropriate noncriminal alternatives;

(4) furnish each person placed on probation under his supervision a written

statement of the conditions of his probation and instruct him regarding those

conditions;

(5) supervise and assist persons on probation consistent with conditions of

probation imposed by the court;

(6) bring to the court’s attention any modification in the conditions of

probation considered advisable;

(7) notify the court when a violation of a condition of probation occurs;

(8) cooperate with public and private agencies and other persons concerned

with the treatment or welfare of persons on probation, and assist them in

obtaining services from those agencies and persons;

(9) keep accurate records of cases investigated by him and of all cases assigned

to him by the court and make these records available to the court upon request;

(10) collect and disburse money from persons under his supervision according

to the order of the court, and keep accurate and complete accounts of those

collections and disbursements;

(11) assist the court in transferring supervision of a person on probation to a

court in another jurisdiction; and

(12) perform other duties required by law or as directed by the court.

(emphasis added). Thus, we conclude that the duties of the probation department and

probation officers are charged with performing tasks so integral or intertwined with the

judicial process that these persons should be considered an arm of the judicial officer who is

immune. See Newman, 702 N.E.2d at 1100. As such, we further conclude that a probation

department and probation officers are entitled to absolute judicial immunity for acts

completed within the scope of their work on the court’s behalf. See id.

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Here, Easley does not allege that the Shelby County Probation Department or Deanna

Holder committed any tortious act that would fall outside of the scope of their work on the

court’s behalf. In bringing his claim, Easley merely argues that the probation department

erroneously filed the February 24, 2010 petition to revoke his probation and subsequent

addenda thereto. These acts fall squarely within the scope of these Appellees’ work on the

court’s behalf. See Indiana Code § 11-13-1-3(7). Accordingly, we conclude that these

Appellees’ were entitled to absolute judicial immunity and could not be found liable to

Easley.

In sum, the trial court properly granted the Appellees’ motion to dismiss because

Easley’s civil lawsuit effectively amounts to a collateral attack on the judgment of the Shelby

County Superior Court. Furthermore, to the extent that Easley’s lawsuit seeks recovery in

addition to having the judgment of the Shelby County Superior Court overturned, each of the

Appellees is entitled to absolute immunity and cannot be found liable with regard to Easley’s

claims.

II. Whether the Trial Court Abused its Discretion

in Denying Easley’s Motion for Default

Easley also contends that the trial court abused its discretion in denying his motion for

default. Specifically, Easley claims that the trial court abused its discretion because

Appellees the Shelby County Probation Department, Deanna Holder, the Shelby County

Superior Court One Clerk, Vicki Franklin, and Carol Stohry failed to appear or respond to his

complaint within twenty-three days of receiving service, and as such, should be defaulted.

Indiana Trial Rule 55(A) provides that “[w]hen a party against whom a judgment for

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affirmative relief is sought has failed to plead or otherwise comply with these rules and that

fact is made to appear by affidavit or otherwise, the party may be defaulted by the court.”

Upon appellate review of an order relating to a default judgment, the trial court’s ruling is

entitled to deference and will be reviewed for an abuse of discretion. See Delphi Corp. v.

Orlik, 831 N.E.2d 265, 267 (Ind. Ct. App. 2005).

The trial court’s discretion in granting or denying a motion for default

judgment is considerable. Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 94

(Ind. Ct. App. 2002). However, the trial court should use its discretion to do

what is “just” in light of the unique facts of each case. [State Farm Mut. Auto.

Ins. Co. v. Hughes, 808 N.E.2d 112, 116 (Ind. Ct. App. 2004)]. We will

reverse only if the trial court’s decision is clearly against the logic and effect of

the facts and circumstances. Progressive Ins. Co., 777 N.E.2d at 94.

Id.

In the instant matter, Easley filed his complaint in the trial court on April 1, 2011.

Service was made on the Appellees on April 18 and 19, 2011. On April 26, 2011, an attorney

for the State, the Shelby County Prosecutor’s Office, and the individuals associated with the

Shelby County Prosecutor’s Office filed an appearance, a motion to dismiss Easley’s lawsuit

in its entirety, and a memorandum in support of the motion to dismiss. The trial court

granted the motion to dismiss the lawsuit, with prejudice, on April 29, 2011. As a result of

the dismissal of Easley’s lawsuit in its entirety, as of April 29, 2011, there was no ongoing

lawsuit for the remaining Appellees to appear in or respond to.

The trial court subsequently vacated its prior order and reinitiated the lawsuit on May

18, 2011. An attorney for the remaining Appellees filed an appearance and a notice of

joinder in the motion to dismiss on June 1, 2011, some fifteen days after Easley’s lawsuit was

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reinitiated. As such, the remaining Appellees timely appeared in and responded to Easley’s

lawsuit once it was reinitiated by the trial court. See Ind. Trial Rule 6(C) and (E) (providing

that responsive pleadings shall be served within twenty days after service of the prior

pleading, plus an extra three days if notice is served by mail).

Furthermore, even if the remaining Appellees should have appeared in and responded

to Easley’s lawsuit within twenty-three days of receiving service of the lawsuit on April 18 or

19, 2011, despite the fact that it was subsequently dismissed in its entirety, we conclude it

would have been unjust for the trial court to enter a default judgment against these parties

because, as we discussed above, Easley was not entitled to the relief sought in his lawsuit.

See Orlik, 831 N.E.2d at 267 (providing that the trial court shall use its discretion to do what

is “just” in light of the unique facts of each case). Accordingly, we conclude that the trial

court acted within its discretion in denying Easley’s motion for default judgment.

The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.

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