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Indianapolis v. Tichy

Court of Appeals of Indiana

April 16, 2019

City of Indianapolis, Appellant-Plaintiff,
v.
Ginger Tichy, Appellee-Defendant.

          Appeal from the Marion Superior Court The Honorable Travis G. Sandifur, Magistrate Trial Court Nos. 49D04-1701-OV-4141, 49D04-1703-OV-12165, 49D04-1704-OV-14006, 49D04-1704-OV-14340, 49D04-1704-OV-14994, 49D04-1704-OV-15972

          Attorneys for Appellant Deborah L. Law Traci Marie Cosby Office of Corporation Counsel Indianapolis, Indiana

          Attorney for Appellee Jeff Cardella The Law Office of Jeff Cardella, LLC Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] The City of Indianapolis ("the City") appeals the trial court's order to grant relief from judgment to Ginger Tichy under Indiana Trial Rule 60(B). The City raises three issues for our review, and Tichy raises an additional issue. We consolidate the issues and restate them as the following dispositive question: whether the trial court abused its discretion when it granted relief to Tichy under Indiana Trial Rule 60(B). We hold that the trial court abused its discretion. Accordingly, we reverse.

         Facts and Procedural History

         [¶2] On May 10, 2017, following a bench trial in six consolidated cause numbers, the trial court permanently enjoined Tichy from acting in a manner that would violate Section 431-702 of the City's municipal code.[1] As relevant here, Section 431-702 prohibits pedestrians from soliciting or conversing with the occupant of a vehicle in a roadway if the pedestrian is in the median of the roadway or within fifty feet of an intersection. Appellant's App. Vol. 2 at 193. Tichy did not appeal the injunction and at no point has she disputed that she acted in violation of Section 431-702 prior to the issuance of the injunction. Shortly after the court entered the injunction, the City moved to have Tichy found in contempt as she had allegedly continued to solicit or converse with the occupants of motor vehicles in the roadway in a manner contrary to Section 431-702.

         [¶3] In response, Tichy moved for relief from the injunction under Indiana Trial Rule 60(B). In her motion, she argued:

22. Ms. Tichy is entitled to relief under Trial Rule 60(B)(7) because it is no longer equitable that the order permanently enjoining her from engaging in conduct prohibited by Municipal Code Section 431-702 [have] prospective application.
* * *
24. The permanent injunction is overbroad because it fails to provide for Ms. Tichy's acting within the boundary [of] the activities specifically declared unlawful by Indiana's penal statute on panhandling[, ] Ind. Code § 35-45-17-1(c).[2] The City has no power to regulate Ms. Tichy's act . . . [in] an area preempted by our legislature . . . .
25. The injunction imposes a serious burden on Ms. Tichy's ability to engage in lawful, passive panhandling-an activity vital to her survival-by banning such ...

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