Kevin Campbell v. Irenea George

FILED
May 30 2017, 8:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE
Kevin Campbell
Marietta, Georgia
IN THE
COURT OF APPEALS OF INDIANA
Kevin Campbell, May 30, 2017
Appellant-Plaintiff, Court of Appeals Case No.
41A01-1607-SC-1723
v. Appeal from the Johnson Superior
Court
Irenea George, The Honorable Kevin M. Barton,
Appellee-Defendant Judge
The Honorable Douglas B.
Cummins, Magistrate
Trial Court Cause No.
41D01-1604-SC-1070
Mathias, Judge.
[1] Kevin Campbell (“Campbell”) brought a small claims action in Johnson
Superior Court for the return of a dog, “Snickers,” against Irenea George
(“George”). The Johnson County magistrate entered an order giving Snickers
to George. That order was never signed or otherwise adopted by a judge.
Without a final appealable order, we remand.
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Facts and Procedural Posture
[2] On April 5, 2016, Campbell filed a notice of claim in Johnson Superior Court,
seeking Snickers’s return from George’s possession and $6,000 in damages, the
jurisdictional limit for small claims actions. On June 9, 2016, Campbell and
George both appeared in person before the Johnson County magistrate and
pleaded their cases. The magistrate took the matter under advisement and, later
the same day, issued an order finding Snickers belonged to George and denying
Campbell’s claim. That order was never signed or otherwise adopted by a
judge. Campbell moved to correct error and to set aside the judgment for fraud;
the magistrate denied both motions, again by orders signed only by him.
[3] Campbell filed notice of appeal on July 25, 2016. Campbell then filed a
“Motion For Relief By Law Due To Magistrate’s Lack Of Judicial Mandate” in
Johnson Superior Court on August 15, 2016. Because the completion of the
clerk’s record was noted in the chronological case summary on August 16,
2016, the superior court judge denied the motion for lack of jurisdiction under
Indiana Appellate Rule 8 on August 22, 2016. On appeal, Campbell raises a
welter of issues, but we find one dispositive: whether the magistrate’s order was
a final appealable order. Concluding that it was not, we remand.
Discussion and Decision
[4] The Johnson circuit and superior courts are authorized to employ one full-time
magistrate. Ind. Code § 33-33-41-2(a). A magistrate’s power is limited by
statute. Tongate v. State, 954 N.E.2d 494, 495 (Ind. Ct. App. 2011), trans. denied.
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A magistrate may . . .
(14) Enter a final order, conduct a sentencing hearing, and
impose a sentence on a person convicted of a criminal
offense as described in section 9 of this chapter.
(15) Enter a final order or judgment in any proceeding involving
matters specified in [Indiana Code §] 33-29-2-4
(jurisdiction of small claims docket) . . . .
I.C. § 33-23-5-5 (emphasis added). However,
[e]xcept as provided under sections 5(14) and 9(b) of this chapter,
a magistrate . . .
(1) does not have the power of judicial mandate; and
(2) may not enter a final appealable order unless sitting as a
judge pro tempore or a special judge.
I.C. § 33-23-5-8 (emphasis added).
[5] The statutes defining a magistrate’s power thus authorize a magistrate in a
small claims case to enter a “final order or judgment,” id. § 5, but not a “final
appealable order.” Id. § 8. Section 8 carves out an exception to the general
prohibition against a magistrate entering appealable orders for criminal cases
under § 5(14) in accordance with § 9 but does not include small claims cases
under § 5(15). Section 9 provides, “Except . . . under subsection (b) [relating to
criminal cases], a magistrate shall report findings in . . . a trial . . . . The court
shall enter the final order.” Id. § 9(a). Finally, the local Johnson County rule
provides, “The Johnson County Magistrate shall preside over all small claims
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matters and make recommendations to the Judge for final Order and
Judgment.” Johnson LR41-SC00-5(A).
[6] In Johnson v. Johnson, 882 N.E.2d 223 (Ind. Ct. App. 2008), we observed that,
under then-current law, “[w]hile a magistrate presiding over a criminal trial
may enter a final order, there is no provision providing such authority in a civil
proceeding.” Id. at 225. Accordingly, we held invalid a magistrate’s grant of a
motion to correct error. Id. at 226. Apparently in response, the General
Assembly added § 5(15) to the list of a magistrate’s powers. Act of Mar. 24,
2008, sec. 3, 2008 Ind. Legis. Serv. P.L. 127-2008 (West) (concerning courts
and court officers). However, the very same act added the exception under § 8
which includes § 5(14) but omits, and therefore excludes, § 5(15). Id., sec. 4.
Expressio unius exclusio alterius: “the enumeration of certain things in a statute
necessarily implies the exclusion of all others. This principle is particularly
appropriate where the same term is present in certain portions of the same
enactment, but not in other portions.” Brandmaier v. Metro. Dev. Comm’n, 714
N.E.2d 179, 180 (Ind. Ct. App. 1999) (citations omitted), trans. denied.
[7] While § 5(15) does allow a magistrate to enter a “final order or judgment” in
small claims cases, I.C. § 33-23-5-5, Section 8, enacted by the same law as §
5(15), excludes small claims cases from a magistrate’s power to enter “final
appealable order[s].” Id. § 8 (emphasis added). This accords with the requirement
in § 9 that, except in criminal cases covered by § 9(b) and § 5(14), “[t]he court
shall enter the final order.” Id. § 9(a). This same understanding is embodied in
the local rule. See Johnson LR41-SC00-5(A). If the General Assembly wished to
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bring small claims cases under § 5(15) within a magistrate’s power to enter
appealable orders, as it did with criminal cases under § 5(14), it clearly knew
how to say so — but it did not.
[8] Though we used to hold the contrary, our supreme court’s long-standing rule is
that “failure of a party to object at trial to the authority of a court officer to enter
a final appealable order waives the issue for appeal” because the issue is not
jurisdictional. In re Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015)
(quoting Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994)). Nevertheless, our
supreme court has repeatedly admonished judicial officers to observe the
requirements of the statutes that create their authority. See, e.g., K.E. v. Ind. Dep’t
of Child Servs., 39 N.E.3d 641, 652 n.8 (Ind. 2015). In any event, here Campbell
objected while jurisdiction still lay in Johnson Superior Court, before the
completed clerk’s record was noted in the chronological case summary.
Campbell, therefore, did not waive the issue. Remand, rather than dismissal, is
the appropriate remedy. See Floyd, 650 N.E.2d at 32.
Conclusion
[9] The magistrate’s order was not a final appealable order by statute. We remand
for adoption or rejection of the magistrate’s order by the court. Of course,
Campbell may simply elect to let a sleeping dog lie and decline to pursue the
matter further, in which case the magistrate’s order will remain final but
unappealable.
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[10] Remanded.
Baker, J., and Pyle, J., concur.
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