Clay Kelley v. Kristy Kelley, b/n/f Kenneth Todd Scales ( 2020 )

FILED
Oct 13 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
S. Anthony Long April L. Edwards
Long Law Office P.C. Boonville, Indiana
Boonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clay Kelley, October 13, 2020
Appellant, Court of Appeals Case No.
20A-MI-679
v. Appeal from the Warrick Superior
Court
Kristy Kelley, Deceased, b/n/f The Honorable J. Zach Winsett,
Kenneth Todd Scales, Judge
Appellee. Trial Court Cause No.
87D01-1709-MI-1498
Najam, Judge.
Statement of the Case
[1] Clay Kelley (“Clay”) appeals the trial court’s order denying his motions to
quash a nonparty subpoena, for contempt, and for sanctions. However, Clay
was neither a named party nor an intervenor in the trial court proceedings.
Accordingly, he does not have standing to bring this appeal, and we do not
reach the merits of the issues he raises. We dismiss Clay’s appeal.
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 1 of 8
[2] On cross-appeal, Kristy Kelley, Deceased, b/n/f Kenneth Todd Scales
(“Scales”) requests appellate attorney’s fees. We deny Scales’ request.
Facts and Procedural History
[3] We set out the background facts and procedural history relevant to this appeal
in Scales v. Warrick County Sheriff’s Department, 122 N.E.3d 866, 867 (Ind. Ct.
App. 2019):
Kenneth Scales filed a petition for access to public records,
seeking documents from the Warrick County Sheriff's
Department (the Department) related to the disappearance and
death of his daughter, Kristy Kelley[ in August 2014]. The
Department moved for summary judgment, arguing that the
records to which Scales sought access were investigatory records
that the Department could withhold at its discretion. The trial
court ruled in favor of the Department . . . .
On appeal, we reversed the entry of summary judgment for the Department and
instructed the trial court to enter summary judgment for Scales. Id. at 872.
Accordingly, on remand, the trial court entered summary judgment for Scales
and ordered the Department to provide him with the requested records.
[4] Prior to Kristy’s death, she had married and divorced Clay, and they had a
child together. Scales had previously obtained records from the Indiana State
Police Department (“ISP”) that revealed that: Clay had admitted during an
interview around the time of Kristy’s disappearance that he and Kristy had
recently argued over her current boyfriend; “the two frequently argued, usually
via text message”; and an ISP officer saw a text message from Kristy to Clay
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 2 of 8
time-stamped a few days before her disappearance stating, “you would probably
kill me and hide my body.” Id. at 867.
[5] In short, Scales had a particular interest in Clay’s cell phone records. After
Scales had received the Department’s response to his records request, Scales
filed a subpoena duces tecum and request for production of documents to a
nonparty, namely, Verizon Wireless, seeking all of Clay’s cell phone records
from July 1, 2014, through October 1, 2014. After Verizon notified Clay about
the subpoena, Clay hired a lawyer, who filed a “limited appearance” with the
trial court and moved to quash the subpoena based on alleged discovery
violations. Clay also moved for an order of protection under Trial Rule 26(C)
and for sanctions against Scales’ attorney. However, Clay did not file a motion
to intervene.
[6] On February 21, 2020, the trial court issued an order finding and concluding in
relevant part as follows:
15. The court does believe that although the subject discovery
process involved technical violations, the violations were not
particularly egregious, did not create an undue hardship to the
parties of the suit, and were not issued in bad faith.
16. Under the totality of the circumstances of this matter, the
court issues no sanctions.
17. The court finds that the Intervenor Clay Kelley failed to meet
his burden of proof that Counsel for Plaintiff was in contempt of
court, and the court does not find Counsel for Plaintiff in
contempt of court.
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 3 of 8
18. The motion to quash is moot, as the requested discovery has
already been answered.
Appellant’s App. Vol. 2 at 12 (emphasis added). This appeal ensued.
Discussion and Decision
[7] We do not reach the merits of Clay’s appeal. Despite the fact that a motions
panel of this Court previously denied Scales’ motion to dismiss this appeal,
it is well established that a writing panel may reconsider a ruling
by the motions panel. Miller v. Hague Ins. Agency, Inc., 871
N.E.2d 406, 407 (Ind. Ct. App. 2007). While we are reluctant to
overrule orders decided by the motions panel, this court has
inherent authority to reconsider any decision while an appeal
remains in fieri. Id.
Simon v. Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011).
[8] While the trial court referred to Clay as an “intervenor” in its order, Clay
concedes on appeal that he was neither a named party in the proceedings below
nor an intervenor. Clay was not even named as a nonparty; the challenged
subpoena was directed to nonparty Verizon. Clay filed only a “limited
appearance” 1 when he moved to quash Scales’ nonparty subpoena to Verizon
1
An appearance, without more, does nothing but subject a person to the trial court’s jurisdiction. It does not
confer either party or intervenor status on a nonparty. In particular, Trial Rule 4 provides in relevant part
that a trial court “acquires jurisdiction over a party or person who enters an appearance in an action.” While
the “limited appearance” filed by Clay’s attorney subjected Clay to the court’s jurisdiction, the appearance
did not make him a party.
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 4 of 8
and filed other motions. Clay did not move to intervene in the trial court
proceedings as provided and required under Trial Rule 24. 2
[9] In his brief on appeal, he contends that he has standing to bring this appeal
because he has a “personal stake in the outcome of the lawsuit” or will sustain
“some direct injury as a result of the conduct at issue.” Appellant’s Br. at 10.
However, in support of that contention, Clay cites our Supreme Court’s opinion
in Oman v. State, 737 N.E.2d 1131 (Ind. 2000), which is inapposite. In Oman,
the relevant issue was whether a party to a proceeding had standing to challenge
the validity of a subpoena issued to a nonparty. Id. at 1135. Because Clay is
not a party to this action, Clay’s reliance on Oman is misplaced.
[10] As this Court has held,
to prosecute an appeal, the person considering herself aggrieved
must have first been a party before the trial court. Appellate Rule
17(A) provides that “[a] party of record in the trial court . . . shall
be a party on appeal.” The converse is also true: a person who is
not a party of record in the trial court cannot become a party for
the first time on appeal. See Treacy v. State, 953 N.E.2d 634 (Ind.
Ct. App. 2011), [trans. denied]. That is, “Rule 17 . . . limits the
class of parties on appeal to parties of record in the trial court.”
Id.
2
In his response to Kelley’s motion to dismiss this appeal, Clay asserted that, because Kelley “treated him”
like a party, Kelley has waived the issue of this court’s jurisdiction. However, it is well settled that “lack of
jurisdiction is not waived by the parties” and the lack of appellate jurisdiction “can be raised at any time.”
Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003).
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 5 of 8
Simon, 957 N.E.2d at 989-90. Clay was neither a party of record nor an
intervenor in the trial court, which would have given him “equal standing with
the parties.” See Christian v. Durm, 866 N.E.2d 826, 829 (Ind. Ct. App. 2007)
(holding that “[a]n intervenor is treated as if it was an original party”), trans.
denied. Thus, Clay does not have standing, and we dismiss his purported
appeal. See Simon, 957 N.E.2d at 989-90; see also, Hepp v. Hammer, 445 N.E.2d
579, 582 (Ind. Ct. App. 1983) (holding that nonparty who had filed an
appearance and filed motions on behalf of the defendant had “no standing in
the case whatsoever” where nonparty had not moved to intervene or to join as
amicus curiae).
Cross-appeal
[11] Scales cross-appeals and requests appellate attorney’s fees under Appellate Rule
66(E), which provides that this Court “may assess damages if an appeal . . . is
frivolous or in bad faith. Damages shall be in the Court’s discretion and may
include attorney’s fees.” As this Court has explained,
“Our discretion to award attorney fees under Indiana Appellate
Rule 66(E) is limited, however, to instances when an appeal is
permeated with meritlessness, bad faith, frivolity, harassment,
vexatiousness, or purpose of delay. Orr v. Turco Mfg. Co., Inc., 512
N.E.2d 151, 152 (Ind. 1987). Additionally, while Indiana
Appellate Rule 66(E) provides this Court with discretionary
authority to award damages on appeal, we must use extreme
restraint when exercising this power because of the potential
chilling effect upon the exercise of the right to appeal. Tioga Pines
Living Ctr., Inc. v. Indiana Family and Social Svcs. Admin., 760
N.E.2d 1080, 1087 (Ind. Ct. App. 2001), trans. denied.
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 6 of 8
Indiana appellate courts have formally categorized claims for
appellate attorney fees into “substantive” and “procedural” bad
faith claims. Boczar v. Meridian Street Found., 749 N.E.2d 87, 95
(Ind. Ct. App. 2001). To prevail on a substantive bad faith claim, the
party must show that the appellant’s contentions and arguments are
utterly devoid of all plausibility. Id.
Pflugh v. Indpls. Hist. Pres. Comm’n, 108 N.E.3d 904, 910-11 (Ind. Ct. App. 2018)
(quoting Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003))
(emphasis added), trans. denied. “Procedural bad faith . . . occurs ‘when a party
flagrantly disregards the form and content requirements of the Rules of
Appellate Procedure, omits and misstates relevant facts appearing in the record,
and files briefs written in a manner calculated to require the maximum
expenditure of time both by the opposing party and the reviewing court.’”
Boczar, 749 N.E.2d at 95 (quoting John Malone Enters., Inc. v. Schaeffer, 674
N.E.2d 599, 607 (Ind. Ct. App. 1996)).
[12] “‘A strong showing is required to justify an award of appellate damages and the
sanction is not imposed to punish mere lack of merit but something more
egregious.’” GHPE Holdings, LLC v. Huxley, 69 N.E.3d 513, 523 (Ind. Ct. App.
2017) (quoting Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 340
(Ind. Ct. App. 2013)). Of course, just because an appellant is unsuccessful on
appeal does not mean the appellee is entitled to appellate attorney’s fees. See id.
[13] In support of his request for appellate attorney’s fees, Scales avers that Kelley’s
appeal “completely lacked any articulated appellate error and ignored the abuse
of discretion standard on appeal” and that Kelley engaged in “character
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 7 of 8
attacks” on Scales’ counsel. Appellee’s Br. at 23. Scales further alleges
unspecified violations of the Rules of Appellate Procedure. But Scales’
argument lacks citations either to Kelley’s briefs on appeal or the record. We
hold that Scales has not satisfied his burden to demonstrate either substantive or
procedural bad faith by Kelley in pursuing this appeal. We deny Scales’ request
for appellate attorney’s fees.
[14] Dismissed.
Bradford, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 20A-MI-679 | October 13, 2020 Page 8 of 8