Clifton E. Sharp v. State of Indiana, and Brianna Finney ( 2019 )

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.
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[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.
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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
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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
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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.
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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.
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