O'LAUGHLIN v. Barton

582 N.E.2d 817, 1991 Ind. LEXIS 244, 1991 WL 263237
Indiana Supreme Court·Decided December 12, 1991·No. 82S01-9002-CV-131·Published·Cited by 24 cases

Opinions

DeBRULER, Justice.

This cause comes to us on a petition for rehearing of this Court’s prior decision in O’Laughlin v. Barton (1991), Ind., 571 N.E.2d 1258. For the reasons set forth below, we now grant the petition and affirm the trial court judgment of June 6, 1990.

In January of 1987, Mohammed Fadli was charged with the battery and attempted murder of Dixie Barton. Fadli deposit[819] ed $100,000 cash in lieu of bail and was released. Subsequently, Fadli failed to surrender his passport, a condition of his release order, and the trial court then issued a bench warrant for Fadli’s arrest and revoked his “bond” on March 2, 1987. The trial court reaffirmed that revocation on December 1, 1987. Fadli eventually failed to appear for his trial and was defaulted.

On February 23, 1987, Barton notified the trial court of her impending civil suit for damages against Fadli, which was filed the following day. She also moved to attach the cash bond pending the resolution of her civil suit, and her amended motion and affidavit for attachment were filed on March 2, 1987. Barton obtained a default judgment on March 24, 1987 and a jury awarded her $913,100 damages. Judgment on that verdict was entered October 16, 1987, and Barton then attempted to execute her judgment by garnishing Fadli’s revoked cash bond held by Garnishee Defendant Helen Keubler, Vanderburgh County Clerk.

On December 1, 1987, the trial court entered judgment ordering the cash deposit released to Barton, and that order was stayed pending appeal. O’Laughlin then instituted an appeal, and the Court of Appeals granted Barton’s motion to dismiss without prejudice. On February 13, 1990, this Court granted transfer, reversed the judgment of the trial court and remanded the cause with instructions to enter judgment ordering Fadli’s cash bond forfeited and ordering the Clerk of Vanderburgh Circuit Court to transmit the funds resulting from said forfeiture to the Treasurer of the State of Indiana for placement in the Common School Fund. O’Laughlin v. Barton (1991), Ind., 549 N.E.2d 1040 (DeBruler, J., dissenting with opinion in which Dickson, J., concurred).

Barton filed her first petition for rehearing in this Court on March 5, 1990. On March 20, 1990, during the pendency of that petition, Senate Enrolled Act No. 15, P.L. 36-1990, amending Ind.Code 35-33-8-7 became effective, requiring that a criminal court having notice of a pending civil action or an unsatisfied judgment against a criminal defendant arising out of the same transaction or occurrence forming the basis for the criminal case “shall order payment of all or any part of the deposit to the plaintiff in the action, as is necessary to satisfy the judgment.” On April 24, 1990, this Court denied Barton’s petition for rehearing and the case was certified to the trial court.

On April 7, 1990, Barton filed her notice and motion pursuant to I.C. 35-33-8-7 as amended in the underlying criminal action. On April 18, 1990, O’Laughlin moved the trial court to stay all proceedings on Barton’s motion pending resolution of the petition for rehearing, which stay was granted, and also filed a verified petition for writ in aid of appellate jurisdiction. In this verified petition O’Laughlin requested that this Court stay any proceedings in the Vander-burgh Circuit Court on Barton’s motion and “that the trial court be directed to rule upon the disposition of Mohamed Fadli’s cash bond only in accordance with the written decision of this Court in this cause entered on February 13, 1990.” This Court’s order of April 30, 1990, dismissed that petition as moot because Barton’s petition for rehearing was denied on April 24, 1990, and stated that “[¡jurisdiction is now with the trial court for further proceedings not inconsistent with the opinion of this Court or as allowed by law.”

On May 14, 1990, the trial court vacated its stay order and heard argument on the disposition of the cash deposit. Barton introduced as Plaintiff’s Exhibits 1 through 4 the affidavits of, respectively, Senators Young (the author of Senate Bill 15), Server, Becker, and Rebecca J. Brown, Senior Staff Attorney for the Legislative Services Agency. The affidavits of the Senators are essentially the same and state that each consented to the amendment described above with full knowledge of the circumstances of Barton’s civil action, the State’s position on this matter and this Court’s decision. The affidavit of Brown, who prepared the conference committee report for 1990 Senate Enrolled Act 15, states her version of the purpose of the bill. The trial court entered its findings of fact, conclusions of law and judgment on June 6, 1990, [820] which gave effect to the statute as amended by directing the Vanderburgh County Clerk to turn over the cash deposit to Barton. The disposition of the deposit was stayed indefinitely by trial court order of June 21, 1990.

On June 13, 1990, this Court issued an order to the Honorable Robert S. Matthews, Magistrate of the Vanderburgh Circuit Court, and James E. Rode, attorney for Dixie Barton, to appear before this Court to show cause why they should not be held in contempt of our order of February 13, 1990. The trial court order was stayed, and on June 28, 1990, we found that Magistrate Matthews and Mr. Rode were not in contempt of this Court. However, this Court found that constitutional issues were raised which should be decided on appeal, and O’Laughlin was afforded time to institute an appeal of the trial court’s order.

O’Laughlin claims that the trial court erred in finding that Barton was entitled to Fadli’s cash deposit. She asserts that the amendment to I.C. 35-33-8-7 contained in Senate Enrolled Act No. 15 cannot have retroactive application so as to affect the disposition of Fadli’s deposit, and that if the amendment is construed to apply retroactively, that construction would violate the principle of separation of powers and render the amendment unconstitutional because it would annul the decision of the courts in a particular case.

The amendments to I.C. 35-33-8-7 contained in Senate Enrolled Act No. 15 became effective on March 20, 1990, and required that cash bail “not be declared forfeited by the court and the court shall order the deposited funds held by the clerk.” On December 1, 1987, the trial court issued its order and judgment that the cash bail not be forfeited but instead paid to Barton in partial satisfaction of her judgment against Fadli. Due to the pend-ency of a petition for rehearing from this Court’s February 13, 1990 opinion and decision, there was no final order or judgment of forfeiture by this Court until April 24, 1990.

The general rule is that a law shall be prospective only in the absence of an express statement that it be retroactive. Chadwick v. City of Crawfordsville (1940), 216 Ind. 399, 24 N.E.2d 937. The trial court ruled in accordance with this principle, giving the statute prospective application only.

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O'LAUGHLIN v. Barton, 582 N.E.2d 817, 1991 Ind. LEXIS 244, 1991 WL 263237 (Ind. 1991).

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O'LAUGHLIN v. Barton
582 N.E.2d 817 (Indiana Supreme Court, 1991)