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

FILED
Jun 08 2012, 8:28 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: KENT A. EASLEY Plainfield, Indiana

ATTORNEYS FOR APPELLEES STATE OF INDIANA, THE SHELBY COUNTY PROSECUTOR'S OFFICE, R. KENT 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. 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 ) ) ) ) ) ) ) ) ) ) ) )

No. 49A02-1109-CT-975

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MEMORANDUM DECISION - NOT FOR PUBLICATION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 Whether the trial court abused its discretion in denying Easley's motion for a default judgment.

II.

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 2

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 3

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

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 5

Shelby County Superior Court under Cause Number 73D01-0004-CF-28 ("Cause No. CF28"), 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
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

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