122 N.E.3d 841
Ind. Ct. App.2019Background
- The City obtained six consolidated permanent injunctions (May 10, 2017) enjoining Ginger Tichy from soliciting/conversing with vehicle occupants in medians or within 50 feet of intersections under Indianapolis Mun. Code § 431-702.
- Tichy did not appeal and admitted she had engaged in the conduct that prompted the injunction prior to its entry.
- After the injunction, the City moved for contempt alleging Tichy continued to solicit; Tichy moved for relief from judgment under Indiana Trial Rule 60(B).
- Tichy argued the injunction was overbroad and preempted by the state panhandling statute (Ind. Code § 35-45-17-1(c)), burdened protected expression, and that lack of counsel at the original hearing deprived her of due process.
- The trial court granted relief under Trial Rule 60(B)(7), concluding the City’s ordinance was preempted by state law; the City appealed. The Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument (Tichy) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether Trial Rule 60(B)(7) relief was appropriate because the injunction is no longer equitable | Injunction is overbroad, preempted by state statute, and imposes an ongoing inequity | No change in law or fact since injunction; Rule 60(B)(7) requires a change in circumstances | Reversed — 60(B)(7) relief improper; movant must show unforeseeable change in circumstances, which Tichy did not show |
| Whether lack of counsel and unawareness of rights justify relief under Rule 60(B)(8) | Due process and fundamental fairness warrant vacating injunction because Tichy was unrepresented and couldn’t correct court’s legal misunderstanding | Lack of counsel/ignorance do not constitute extraordinary circumstances under 60(B)(8) | Reversed — 60(B)(8) inapplicable; courts have rejected lack-of-counsel as extraordinary grounds |
| Whether Tichy may use Rule 60(B) to relitigate the merits of the injunction | The injunction forbids constitutionally protected passive panhandling exempted by state law, so merits justify relief | Rule 60(B) is not a substitute for a belated appeal or re-litigation of merits | Reversed — Rule 60(B) cannot be used to relitigate merits; motion addressed equitable procedural grounds only |
| Whether the City’s appeal was timely (procedural) | (Tichy moved to dismiss appeal as untimely) | City filed notice within thirty days of trial court’s corrected/judgment date | Motion to dismiss denied; appeal proceeds on merits |
Key Cases Cited
- Citimortgage, Inc. v. Barabas, 975 N.E.2d 805 (Ind. 2012) (standard: Rule 60(B) relief is equitable discretion reviewed for abuse)
- Smith v. Smith (In re Paternity of P.S.S.), 934 N.E.2d 737 (Ind. 2010) (Rule 60(B) addresses procedural/equitable grounds, not merits)
- Masterson v. State, 511 N.E.2d 499 (Ind. Ct. App. 1987) (subdivisions 60(B)(7) and (8) concern exceptional circumstances)
- Jones v. Jones (In re Marriage of Jones), 389 N.E.2d 338 (Ind. Ct. App. 1979) (to show 60(B)(7) relief, movant must show changed, unforeseeable circumstances)
- Martinsville Dev. Co., 366 N.E.2d 681 (Ind. Ct. App. 1977) (same: change in circumstances requirement for 60(B)(7))
- Warner v. The Young Am. Volunteer Fire Dep’t, 326 N.E.2d 831 (Ind. Ct. App. 1975) (same principle regarding unforeseeable change)
- Summit Account & Comput. Servs. v. Hogge, 608 N.E.2d 1003 (Ind. Ct. App. 1993) (lack of counsel/ignorance of rights do not demonstrate extraordinary circumstances under 60(B)(8))
- Levin v. Levin, 645 N.E.2d 601 (Ind. 1994) (argument of unrepresented/unaware is more properly characterized under 60(B)(1) for mistake/excusable neglect)