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    Jody D. KIMBRELL, Michael D. Kimbrell, and Anna F. Isaacs, Plaintiffs, v. STATE BANK OF SPEER, Defendant-Appellee
    (Jody D. Kimbrell, Plaintiff-Appellant).
    Appeal No. 3-17-0498
    Appellate Court of Illinois, Third District.
    Opinion filed December 5, 2018
    Jody D. Kimbrell, of Peoria, appellant pro se.
    Joseph B. VanFleet, of Howard & Howard Attorneys PLLC, of Peoria, for appellee.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Jody D. Kimbrell, a nonlawyer proceeding pro se , filed a complaint, which she subsequently amended twice, on behalf of herself and also on behalf of her mother and her husband. The trial court dismissed Kimbrell's second amended complaint. Kimbrell appealed. We affirm the trial court's dismissal order of Kimbrell's second amended complaint as a nullity due to Kimbrell's unauthorized practice of law.

¶ 2 FACTS

¶ 3 I. Background

¶ 4 In this case, Kimbrell filed an original complaint pertaining to certain property, which was dismissed without prejudice, a first amended complaint, which was dismissed without prejudice, and a second amended complaint, which was dismissed with prejudice. Kimbrell's pleadings asserted a mass amount of immaterial and superfluous facts and contained tangential and superfluous allegations. Kimbrell's pleadings appear to be attempts to state causes of action for slander of title and to quiet title related to certain property. In making their supporting arguments in this case, both parties made somewhat obscure references to proceedings in other cases that involved the plaintiffs and the property at issue in this case. We have reviewed some of those other cases and the filings made in this case, which provided the following information.

¶ 5 The subject property appears to involve a portion of property located near Jeth Court Apartments, off of University Street, in Peoria, Illinois. In 1997, plaintiffs purchased the Jeth Court apartment complex. Kimbrell v. Illinois-American Water Co. , 2013 IL App (3d) 110790-U, ¶ 4, 2013 WL 1282312. In May 2005, On May 6, 2005, plaintiffs executed two promissory notes in favor of Republic Bank for $2,051,000 and $294,000, secured by first and second mortgages on seven "Jeth Court" tracts of land and three "University Street" tracts of land. Republic Bank of Chicago v. Kimbrell , 2015 IL App (3d) 140675-U, ¶¶ 5, 10, 2015 WL 8158207. On August 1, 2008, plaintiffs paid off the $2,051,000 Republic Bank note (by refinancing the debt under Kimbrell's limited liability company, which resulted in Republic Bank releasing the mortgages, except for the mortgages on two University Street tracts of land because the note for $294,000 remained outstanding. Id. ¶¶ 19, 23-24, 34-35. On August 1, 2008, Kimbrell's limited liability company obtained a $2,264,000 loan from the Royal Bank of Canada (Royal Bank), secured by a mortgage that was subsequently assigned to the Federal National Mortgage Association (Fannie Mae). Federal National Mortgage Ass'n v. Kimbrell , 2016 IL App (3d) 140662-U, ¶¶ 4, 6, 10, 25, 2016 WL 5904803. On August 12, 2010, Kimbrell's limited liability company transferred a portion of the Fannie Mae mortgaged property to the plaintiffs in this case (Kimbrell, her husband, and her mother) so they could have a building constructed on the property. Id. ¶¶ 6, 9. According to the pleadings in this case, between July 27, 2009, and May 12, 2010, defendant State Bank of Speer gave plaintiffs four advances on a $400,000 construction loan for the construction of that building.

¶ 6 On February 7, 2012, Fannie Mae filed a foreclosure complaint (case No. 12-CH-97)-against the plaintiffs in this case (Kimbrell, her husband, and her mother), Kimbrell's limited liability company, a personal guarantor of the loan, and State Bank of Speer (defendant in this case), alleging that Kimbrell's limited liability company defaulted on the note by failing to make payments, making an unauthorized transfer of mortgaged property, and causing the property to be encumbered by two mortgages held by State Bank of Speer. Id. ¶¶ 5, 9. On August 4, 2014, the trial court granted Fannie Mae's motion for summary judgment, entered a judgment of foreclosure and sale, and granted a motion for sanctions against Kimbrell pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013) by ordering Kimbrell not to make any further filings in that case or file any other lawsuits against those parties without prior leave of court. Federal National Mortgage Ass'n , 2016 IL App (3d) 140662-U, ¶¶ 10-13.

¶ 7 On August 29, 2014, Kimbrell filed for bankruptcy. In re Kimbrell , No. 14-81545, 2016 WL 1620228, slip op. at *1 (Bankr. C.D. Ill. Apr. 20, 2016).

¶ 8 On October 6, 2014, a judicial sale for "a portion" of the foreclosed property was sold to Fannie Mae as the highest bidder and its certificate of sale was assigned to BV Sun Grove, LLC (a holding company created by Fannie Mae to hold title to the property). Federal National Mortgage Ass'n , 2016 IL App (3d) 140662-U, ¶¶ 14, 20. In support of defendant's motion to dismiss in this case, defendant attached documents from the foreclosure case. The sheriff's deed, certificate of sale, and report of sale for the judicial sale of the "portion" of the foreclosed property that took place on October 6, 2014, pertained to six tracts of land, with tract 1 including parcels A and B and having property identification No. 14-17-126-001 (now property identification No. 14-17-126-018 and "part of 14-17-126-020")-common address of 1347 Jeth Court. The sale was adjourned to a later date with respect to the remaining portion of the collateral-"that being a part of 14-17-126-020."

¶ 9 On April 24, 2015, Fannie Mae requested to modify the automatic bankruptcy stay in Kimbrell's bankruptcy case so that the foreclosure sale could take place on the remaining parcel of property.

In re Kimbrell , No. 14-81545, 2015 WL 3424458, slip op. at *1 (Bankr. C.D. Ill. May 27, 2015). On May 27, 2015, the bankruptcy court lifted the stay, finding Fannie Mae had proven a lack of equity in the property, noting the bankruptcy case was part of a larger ongoing dispute between the plaintiffs in this case and several lenders "in various proceedings pending in other courts" and lifting the say would "shift the dispute back to state court." Id. at *4.

¶ 10 Documents attached to defendant's motion to dismiss that were filed in Kimbrell's foreclosure case indicate that on August 5, 2015, another order confirming sale (presumably of the remaining property) was entered, which ordered that a sheriff's deed to the property be issued to Fannie Mae or its assignee. The sheriff's deed conveyed the property to BV Sun Grove, LLC-property with identification No. "14-17-126-001 (now 14-17-126-018 and part of 14-17-126-020)." A quitclaim deed recorded on July 21, 2016, from BV Sun Grove, LLC, to third-party Jeth Court Homes, LLC, included the foreclosed property that had been sold at the judicial sale on October 6, 2014, and, in addition, the property conveyed in the sheriff's deed of August 5, 2015-"parcel C" of tract 1, property identification Nos. "14-17-126-018 and 14-17-126-020" (rather than just a "part of" property identification No. 14-17-126-020).

¶ 11 During pendency of the foreclosure case, Kimbrell had filed five separate complaints (consolidated into case No. 12-MR-272) against multiple defendants alleging wrongdoing by those defendants in the mortgage foreclosure process. Kimbrell v. Wells Fargo Multifamily Capital & Commercial Mortgage Servicing , 2015 IL App (3d) 140718-U, ¶¶ 6-7, 2015 WL 5772108. Those complaints were dismissed with prejudice as having previously been heard and denied in the foreclosure proceeding. Id. In that case, on October 17, 2014, the trial court granted the defendants' motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013) against Kimbrell. The sanctions order indicated:

"The purpose of Rule 137 is to prevent the filing of false or frivolous lawsuits. The Rule is in place to prevent abuse of the judicial process by parties who make claims based on unsupported allegations of fact or law. Ms. Kimbrell's use of the legal system could not more squarely within these definitions. In accordance with the requirement of Rule 137, this court specifically finds that Ms. Kimbrell has a long history of filing frivolous, vexatious and harassing lawsuits and pleadings in this court and the federal courts of this district. Ms. Kimbrell has been previously admonished in other litigation * * * to stop filing frivolous, vexatious lawsuits, or she would face sanctions from the Federal court and/or this court. Instead of heading [sic ] those warnings, Ms. Kimbrell filed more lawsuits and appeals. The court finds that Ms. Kimbrell's lawsuits are frivolous, vexatious and are designed to harass Defendants and needlessly increase the cost of litigation. The court finds that Ms. Kimbrell's repeated pro se filings interfere with the orderly administration of justice and divert scarce judicial resources from cases with merit.
It is the judgment of this Court that reasonable and necessary restraints must be imposed upon Plaintiff and her ability to file motions and pleadings in this consolidated Case no. 14 MR 272 against the Defendants herein and their agents or representatives.
It is hereby ordered that Jody D. Kimbrell, or anyone acting on her behalf, is enjoined from filing any new motions or pleadings in this Case No. 14 MR 272 against the Defendants herein or their agents or representatives and from filing any new civil actions or proceedings in any court located in the 10th Judicial Circuit against the Defendants herein or their agents or representatives, without first obtaining leave of Court. Ms. Kimbrell is specifically enjoined and prohibited from drafting any pleading, motion, complaint or written document of any type in the name of any third party or for the use or benefit of any third party, specifically including, but not limited to, Anna Isaacs and Michael Kimbrell.
To the extent Ms. Kimbrell desires to file motions or pleadings against the Defendants herein or their agents or representatives in this Case No. 14 MR 272, she shall file a 'Motion Seeking Leave to File Pursuant to Court Order' and shall attach the proposed motion or pleading to the [motion]. She shall set the Motion for hearing before the presiding judge in this matter. * * *
To the extent Ms. Kimbrell desires to file a new lawsuit against the Defendants herein or their agents or representatives in any court located in the 10th Judicial Circuit, she shall file a 'Motion Seeking Leave to File Pursuant to Court Order' and shall attach the proposed Complaint or pleading to the [motion]. She shall set the Motion for hearing before the chief judge. * * *
Ms. Kimbrell is further admonished that, as someone not licensed to practice law in this state, she may not draft pleadings or file complaints on behalf of her limited liability company [LLC] (Kimbrell Realty/JETH Court, LLC) or any other corporate or business entity or she risks being sanctioned for the unauthorized practice of law."

¶ 12 II. Pleadings and Proceedings in This Case

¶ 13 A. Original Complaint

¶ 14 On October 6, 2016, Kimbrell, proceeding pro se , with her husband (Michael D. Kimbrell), and her mother (Anna F. Isaacs) also named as plaintiffs, signed and filed a complaint against State Bank of Speer and its president, Steven J. Leuthold, for "declaratory judgment." Kimbrell alleged that plaintiffs were the owners of property "known as 14-17-126-020" ; between July 27, 2009, and May 12, 2010, State Bank of Speer had given plaintiffs four advances on a $400,000 construction loan, which totaled, $401,625; and all the construction loan notes and mortgages were paid by the plaintiffs. Kimbrell attached to the complaint what she alleged were copies of the paid notes. Kimbrell alleged that defendants unlawfully clouded plaintiff's title and requested a declaratory judgment indicating, among other things, that plaintiffs owned the properties and were entitled to "the quiet and peaceful possession" of the subject property.

¶ 15 In response, defendants filed a motion to dismiss the complaint. Defendants argued that plaintiffs had made no allegations against Leuthold in his individual capacity and that plaintiff's pleading failed to state a claim. At the hearing on the motion to dismiss, defendants also argued that the subject property had been foreclosed upon and was now owned by a third party who was in possession of the entire property. Defendant also sought a dismissal of plaintiffs' complaint based upon the sanctions order entered in case No. 14-MR-272, on October 17, 2014, even though defendant was not a named party in that case.

¶ 16 At the hearing on defendants' motion to dismiss, defendants argued that valid loan documents existed to bar plaintiffs from the relief they sought and that the affidavit of Leuthold, which was attached to the motion to dismiss, established that the parties entered into five loans secured by mortgages, which were subsequently consolidated into "two new and larger loans" in the amounts of $487,625 and $231,482.89. Defendants argued that the two loans were "current outstanding loans" in default, but collection efforts could not be undertaken due to plaintiffs having pending bankruptcy proceedings.

¶ 17 In ruling, the trial court noted that the order from case No. 14-MR-272 had been addressed by the chief judge in another case involving Kimbrell (case No. 16-CH-108) and had been read "in a very limited fashion." The trial court found plaintiffs had made no allegations against Leuthold, individually, and granted the motion to dismiss Leuthold, with prejudice. The trial court also granted defendants' motion to dismiss for a failure to state a claim pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2016) ) with plaintiffs allowed 28 days to file an amended complaint.

¶ 18 B. First Amended Complaint

¶ 19 On December 1, 2016, Kimbrell filed a pro se first amended complaint against State Bank of Speer, with her mother and husband also named as plaintiffs in the caption. Kimbrell described the action as an action to quiet title to real property regarding property identification No. 14-17-126-020. Kimbrell alleged the subject property was not part of the property foreclosed upon by Fannie Mae. She also alleged that State Bank of Speer had filed a claim as a creditor with a perfected mortgage lien and note of debt in her bankruptcy proceedings even though it did not have a perfected mortgage lien against the subject property. Kimbrell alleged that she was in possession of the original paid notes (related to the $400,000 construction loan) and defendant failed to release the corresponding mortgages. Kimbrell contended that defendant had released the original construction loan and never closed the mortgage related to a subsequent note for $487,625.

¶ 20 In response, defendant filed a motion to dismiss, arguing that the first amended complaint failed to state a cause a claim. Defendant also requested that the trial court rule "the Standing Order from October 17, 2014" that had been entered in case No. 14-MR-272 was applicable to the parties in this case.

¶ 21 At the hearing on defendant's motion to dismiss, defendant's attorney indicated that plaintiffs had constructed a building on the property line of where Fannie Mae's mortgage ended and State Bank of Speer's mortgage began. As a result, Fannie Mae had a mortgage for about two-thirds of that building and State Bank of Speer had a mortgage for the remaining one-third. Defendant's attorney argued the only property plaintiffs could be in possession of was one-third of a building and two vacant out lots because that was the only property that Fannie Mae had not foreclosed upon. Defendant's attorney also argued that while plaintiffs' original loan had been refinanced more than once, at no point was the debt released. Defendant's attorney additionally requested that the order of October 17, 2014, entered in case No. 14-MR-272, be found to be applicable to defendant and the law firm of defendant's attorney.

¶ 22 Kimbrell argued that State Bank of Speer refused to close on a mortgage when it was discovered that the building encroached on property owned by Kimbrell's limited liability company, which Fannie Mae was mortgagee. Kimbrell argued that State Bank of Speer does not have proper closing documents, the note was not notarized, and there was no corresponding mortgage.

¶ 23 The trial court granted State Bank of Speer's motion to dismiss, without prejudice. The trial court also denied defendant's request to be deemed an intended party of the standing order of October 17, 2014, entered in case No. 14-MR-272. The trial court admonished Kimbrell, "you may, in fact, have a cause of action for which some relief may be granted, but unless it's properly pled, we can't even get there." The trial court further also admonished Kimbrell that if she filed an additional pleading without "substantial improvement in that pleading," it would mostly likely be dismissed with prejudice if a motion to dismiss was filed. The trial court noted a dismissal with prejudice was "a drastic measure" that the court did not take lightly. The trial court stated to Kimbrell, "I just want you to be aware, so that you act accordingly."

¶ 24 C. Second Amended Complaint

¶ 25 On March 20, 2017, Kimbrell, "on behalf of herself, her spouse Michael D. Kimbrell and her mother Anna F. Isaac," filed a pro se , verified second amended complaint for "Quiet Title" and a "Declaratory Judgment for Slander of Title," requesting that the court "declare the respective rights of parties in and to real property the subject of [the] complaint."

Kimbrell described the subject property and requested that the trial court determine the priority of competing liens or encumbrances, declare that an interest or lien appearing in the public records was invalid, and find that documents held by defendant were manufactured, were not signed by plaintiffs, were never "closed," and did not meet the requirements of applicable banking and mortgage laws. Kimbrell alleged that on July 27, 2009, she obtained a construction loan from State Bank of Speer for $401,625 to erect a new building "on the now combined parcel 14-17-126-004 (combined with parcel A, B, and encroached parcel 14-17-126-019 easement by necessity acquired ground)." Kimbrell attached various documents to the second amended complaint as evidence that the related notes/mortgages were "released." Kimbrell stated that, at the time of the closing on the "final mortgage," it was discovered that "a small parcel was encroached on belonging to [Kimbrell's] LLC building 14-17-126-001" and defendant State Bank of Speer "did not close the mortgage." Kimbrell alleged that plaintiffs never signed either of the notes that State Bank of Speer was claiming was evidence of liens against the subject properties and there were no corresponding mortgages or closing statements. In further support of her quiet title claim, Kimbrell additionally alleged that she was in possession of the subject properties and defendant "even sends their pleadings to the address."

¶ 26 In response, defendant filed a motion to dismiss the second amended complaint, arguing plaintiffs failed to allege necessary facts to sufficiently state a claim. Defendant specifically argued that plaintiffs could not bring an action for quiet title because they were not in possession of the subject property, with defendant contending that property identification No. 14-17-126-012, "at a minimum," was included as part of the property foreclosed upon by Fannie Mae and subsequently sold to a third party. Defendant argued that the loans were not paid or released, the loans were currently in default, and collection efforts could not be pursued due to Kimbrell's pending bankruptcy case. Defendant also argued the second amended complaint was a nullity that must be dismissed because Kimbrell was engaging in the unauthorized practice of law by filing the second amended complaint "on behalf of herself, her spouse Michael D. Kimbrell and her mother Anna F. Isaacs." Defendant stated that despite the numerous argued motions, the other two plaintiffs have never appeared in court or "uttered a single word into the record on their own behalf." In addition, defendant requested that the trial court rule that "the Standing Order from October 17, 2014, applie[d] to the parties in this case."

¶ 27 On July 27, 2017, at the hearing on defendant's motion, defendant requested that plaintiff's second amended complaint be dismissed with prejudice because Kimbrell was engaging in the unauthorized practice of law by acting on behalf of her mother and husband. Defendant also argued that plaintiffs did not have title to the subject property and, therefore, could not bring a claim for quiet title. Defendant explained that it held a mortgage on a small portion of the subject property, which was at issue in Kimbrell's pending bankruptcy case, and the remainder of the property had been foreclosed upon by Fannie Mae and sold to a third party. Defendant also argued that plaintiffs failed to state a claim for slander of title and that the loans were never paid.

¶ 28 In response, Kimbrell argued that her second amended complaint was filed solely on behalf of herself. She additionally argued that she filed the current suit to have State Bank of Speer "verify a mortgage that's remaining on the parcels" to include a description of the property and prove a corresponding note of debt. Kimbrell argued that State Bank of Speer never completed closing documents to be able to claim a first mortgage lien on the subject property and requested that the trial court declare that there was no mortgage lien held by State Bank of Speer related to the subject property.

¶ 29 III. Trial Court's Ruling

¶ 30 In ruling, the trial court indicated that it was clear from the language of the complaint that Kimbrell "is representing three plaintiffs" and that Kimbrell's pro se second amended complaint had been "put forth" also on behalf of her mother and her husband. The trial court stated, "[a]side from that issue, the remainder of the complaint is incomprehensible." The trial court stated that it could not discern what Kimbrell was requesting and did not know how defendant could intelligently respond to it, noting that it was Kimbrell's third attempt at filing a complaint. Kimbrell stated, "[t]here is no third yet, unless you let me leave to try again." After going back and forth with Kimbrell as to whether she had filed two or three complaints, the trial court stated, "it can't keep going, and I am going to dismiss with prejudice." The trial court stated, "[w]ith regard to sanctions," it would incorporate the order from case No. 14-MR-272 entered on October 17, 2014, into its order. The trial court denied the request of defendant's attorney to add himself and his law firm to the sanctions order.

¶ 31 In the written order, the trial court indicated that: (1) State Bank of Speer's motion to dismiss plaintiffs' verified second amended complaint pursuant to section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2016) ) and for sanctions was granted; (2) the second amended complaint was "dismissed in its entirety with prejudice"; (3) the order entered in case No. 14-MR-272 on October 17, 2014, was adopted in this case as if fully set forth within, in favor of all defendants, their agents and representatives, "except to those portions pertaining to Anna Isaacs"; and (4) plaintiffs' motion for summary judgment and all other pending motions and pleadings were moot in light of the dismissal of the second amended complaint.

¶ 32 Kimbrell appealed.

¶ 33 ANALYSIS

¶ 34 Kimbrell's notice of appeal was filed with only herself as the named plaintiff in the caption and with her proceeding pro se as the only appellant. Kimbrell alleged in the notice of appeal, liberally construed, that the second amended complaint had stated a claim for quiet title and requested that the trial court declare the respective rights of the parties in regard to the subject property. Kimbrell argued she could not have asserted her claim for quiet title "any plainer" and the trial court's dismissal of the second amended complaint as "incomprehensible" demonstrated the trial court's bias toward her as a pro se plaintiff. Kimbrell requested that this court reverse the trial court's dismissal order and remand this case for the trial court to determine who had superior title to the subject property. Kimbrell's appellate brief contains arguments that are difficult to follow, with many interwoven superfluous and tangential statements, similar to the pleadings and motions filed by Kimbrell in the trial court. Liberally construing Kimbrell's pro se notice of appeal and pro se brief on appeal, it appears that Kimbrell argues that the trial court erred in dismissing her second amended complaint with prejudice because she properly alleged a quiet title action and a slander of title action.

¶ 35 On appeal, defendant argues, among other things, that the trial court was required to dismiss the second amended complaint as a nullity because Kimbrell, who is not an attorney, engaged in the unauthorized practice of law by filing the second amended complaint on behalf of her husband and mother in addition to herself. Defendant also argues, inter alia , that the second amended complaint was deficient on its face where it contained "virtually no substantive facts whatsoever"; Kimbrell was unable to adequately plead possession of the property to support her claim for quiet title; and Kimbrell failed to state a claim for declaratory relief by failing to indicate "what, if any, alleged ripe controversy must be determined."

¶ 36 In addressing defendant's argument that Kimbrell's second amended complaint must be treated as a nullity due to Kimbrell engaging in the unauthorized practice of law, we note that the Illinois Supreme Court has the inherent power to define and regulate the practice of law in this state. Downtown Disposal Services, Inc. v. City of Chicago , 2012 IL 112040, ¶ 14, 365 Ill.Dec. 684, 979 N.E.2d 50. The Illinois Supreme Court has promulgated regulatory rules to govern the admission of lawyers to the state bar, regulate the practice of law and the conduct of lawyers, and prescribe discipline for lawyer misconduct. Ford Motor Credit Co. v. Sperry , 214 Ill. 2d 371, 383, 292 Ill.Dec. 893, 827 N.E.2d 422 (2005), overruled in part on other grounds, LVNV Funding, LLC v. Trice , 2015 IL 116129, ¶ 42, 392 Ill.Dec. 245, 32 N.E.3d 553. These regulatory rules are intended to safeguard the public from individuals unqualified to practice law and to ensure the integrity of our legal system. Downtown Disposal Services , 2012 IL 112040, ¶ 14, 365 Ill.Dec. 684, 979 N.E.2d 50 (citing Sperry , 214 Ill. 2d at 383, 292 Ill.Dec. 893, 827 N.E.2d 422 ).

¶ 37 Under the nullity rule, proceedings in a suit by a person not entitled to practice law are a nullity and " 'the suit may be dismissed' " and, if the cause proceeded to judgment, the judgment is void. Sperry , 214 Ill. 2d at 389, 292 Ill.Dec. 893, 827 N.E.2d 422 (quoting Remole Soil Service, Inc. v. Benson , 68 Ill. App. 2d 234, 239, 215 N.E.2d 678 (1966) ). The nullity rule is grounded in the fact that there are risks to individual clients and the integrity of the legal system inherent in the representation by an unlicensed person. Id. at 389-90, 292 Ill.Dec. 893, 827 N.E.2d 422. "The purpose of the nullity 'rule is * * * to protect litigants against the mistakes of the ignorant and the schemes of unscrupulous and to protect the court itself in the administration of its proceedings from those lacking the requisite skills.' " Id. at 390, 292 Ill.Dec. 893, 827 N.E.2d 422 (quoting Janiczek v. Dover Management Co. , 134 Ill. App. 3d 543, 546, 89 Ill.Dec. 673, 481 N.E.2d 25 (1985) ).

¶ 38 Our supreme court has specifically held that the application of the nullity rule is not automatic and, "[i]nstead, the circuit court should consider the circumstances of the case and the facts before it when determining whether dismissal is proper." Downtown Disposal Services , 2012 IL 112040, ¶¶ 31, 36, 365 Ill.Dec. 684, 979 N.E.2d 50 (holding "there is no automatic nullity rule" and rejecting the contention that any act of legal representation undertaken by a nonattorney on behalf of a corporation renders the proceedings void ab initio ). A per se nullity rule is unreasonable, and sanctions for violating the rule against the unauthorized practice of law should be in proportion to the gravity of the violations' consequences. Id. ¶ 30. Because the consequences of applying the nullity rule can be harsh, it should be invoked only where it fulfills the purposes protecting the public and the integrity of the court system from the actions of the unlicensed and where no alternative remedy is possible. Id. (citing Applebaum v. Rush University Medical Center , 231 Ill. 2d 429, 438, 326 Ill.Dec. 45, 899 N.E.2d 262 (2008) ).

¶ 39 In Downtown Disposal Services , the trial court had granted the defendant's motion to dismiss administrative review complaints filed by the plaintiff-corporation's president, who was not an attorney and, therefore, had engaged in the unauthorized practice of law. Id. ¶¶ 17-19 (a corporation must be represented by counsel in legal proceedings). Our supreme court stated that in determining whether to apply the nullity rule, a trial court should consider, among other things, "whether the nonattorney's conduct [was] done without knowledge that the action was improper, whether the corporation acted diligently in correcting the mistake by obtaining counsel, whether the nonattorney's participation [was] minimal, and whether the participation result[ed] in prejudice to the opposing party." Id. ¶ 31. Our supreme court indicated that an action is properly dismissed where the nonlawyer's participation on behalf of the corporation is substantial or the corporation does not take prompt action to correct the defect. Id. Our supreme court noted that: the corporation's president was not aware that he could not prepare and sign the complaint for administrative review; the administrative law officer advised the corporation's president on procedures for filing the complaint, which as a layperson, he could have interpreted as directing him personally to execute the filing; the participation of the corporation's president was minimal in that he filed a preprinted form with plaintiff's name, address, the date of the administrative decision, and the docket numbers; and the corporation's president made no unscrupulous attempt to litigate on behalf of the corporation. Id. ¶ 32. Our supreme court concluded that the trial court should have allowed an alternative remedy, rather than dismissing the complaint as nullity, by permitting the corporation to amend its complaint for administrative review to add counsel's signature. Id. ¶¶ 32, 34, 36 (holding the lack of an attorney's signature on a complaint does not render the complaint for administrative review null and void or mandate dismissal in all instances and, where a nonattorney signs a complaint for administrative review on behalf of a corporation, the trial court should afford the corporation an opportunity to retain counsel and amend the complaint if the facts so warrant).

¶ 40 Here, Kimbrell filed the second amended complaint at issue not only on her own behalf but also "on behalf of" her husband and her mother and, additionally, was the only person who represented the three plaintiffs at the hearings in this case. See Marken Real Estate & Management Corp. v. Adams , 56 Ill. App. 3d 426, 429, 14 Ill.Dec. 139, 371 N.E.2d 1192 (1977) (the signing of a complaint by a nonattorney constitutes the unauthorized practice of law). A lay person may only appear on his or her own behalf and may not represent another in a court of law. Blue v. People , 223 Ill. App. 3d 594, 596, 165 Ill.Dec. 894, 585 N.E.2d 625 (1992) ; see also 705 ILCS 205/1 (West 2016) ("[n]o person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State"). Thus, Kimbrell, who is not an attorney, engaged in the unauthorized practice of law.

¶ 41 We note and distinguish, however, in reference to Kimbrell's filing on behalf of her husband, the case of Custom Builders, Inc. v. Clemons , 52 Ill. App. 3d 399, 10 Ill.Dec. 149, 367 N.E.2d 537 (1977), wherein this court held that it was not error for the trial court to allow the attorney representing the husband and wife to withdraw and allow the wife to proceed pro se and represent her codefendant husband, who did not appear and took no part in the proceedings. The Clemons case is distinguishable from this case, where the pro se wife in that case was defending the suit filed against herself and her husband. See 750 ILCS 65/2 (West 2016) ("If husband and wife are sued together, either may defend for his or her own right and, if either neglects to defend, the other may defend for both."). Here, Kimbrell filed the action and signed the complaint on behalf of herself and her husband and mother, and she was not defending a suit.

¶ 42 Arguably, prior to our supreme court's decision in Downtown Disposal Services , the effect of a nonattorney's unauthorized practice of law on behalf of a party was to "require " dismissal of the cause or to treat the particular actions taken by the representative as a nullity. (Emphasis in original.) Downtown Disposal Services , 2012 IL 112040, ¶¶ 47, 49, 365 Ill.Dec. 684, 979 N.E.2d 50 (Karmeier, J., dissenting, joined by Kilbride, C.J., and Thomas, J.) (quoting Sperry , 214 Ill. 2d at 390, 292 Ill.Dec. 893, 827 N.E.2d 422 and noting that courts of Illinois had only previously declined to apply the nullity rule in situations "where an actual lawyer was involved or appeared to be involved in the case at the time the proceeding was initiated"). However, pursuant to our supreme court's decision in Downtown Disposal Services , the trial court was required to consider the circumstances of the case and the facts before it in determining whether to dismiss the second amended complaint as a nullity due to Kimbrell's unauthorized practice of law. Id. ¶¶ 31, 36 (majority opinion). Given that the trial court was required to weigh several factors in determining whether the second amended complaint should be dismissed as a nullity, we review the trial court's decision in that regard for an abuse of discretion. See id. ¶ 31.

¶ 43 Here, in determining whether a dismissal on nullity grounds is proper, we note that Kimbrell filing the pleadings on behalf of her mother and husband was done with knowledge that the action was improper. Under the order entered in case No. 14-MR-272 entered on October 17, 2014, Kimbrell had been specifically "enjoined and prohibited from drafting any pleading, motion, complaint or written document of any type in the name of any third party or for the use or benefit of any third party, specifically including, but not limited to, Anna Isaacs and Michael Kimbrell." None of the plaintiffs obtained counsel. Kimbrell's participation on behalf of her husband and her mother in this case was far from "minimal." Rather, her participation was substantial where she filed the original complaint, filed two subsequent amended complaints, filed various motions, including a motion for summary judgment, and made arguments before the trial court in support of her pleadings and motions and in response to defendant's motions to dismiss. Despite Kimbrell indicating that her second amended complaint was filed solely on behalf of herself, Kimbrell's mother and husband were named plaintiffs and the trial court found that it was "clear" from the language of the pleading that Kimbrell was representing all three plaintiffs.

¶ 44 Furthermore, there is no clear alternative to applying the nullity rule in this case. Section 2-616 of the Code of Civil Procedure provides, in part,

"(a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.
* * *
(c) A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just." 735 ILCS 5/2-616 (West 2016).

In determining whether the trial court has abused its discretion in deciding not to allow a party leave to amend a pleading, we consider the following factors: (1) whether the proposed amendment would cure the defective pleading, (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment, (3) whether the proposed amendment is timely, and (4) whether there had been previous opportunities to amend. Loyola Academy v. S & S Roof Maintenance, Inc. , 146 Ill. 2d 263, 273, 166 Ill.Dec. 882, 586 N.E.2d 1211 (1992).

¶ 45 Here, in deciding to dismiss the second amended complaint as a nullity, the trial court noted that Kimbrell had three opportunities to file a coherent complaint and the second amended complaint at issue was "incomprehensible." Kimbrell requested "leave to try again." The trial court stated, "it can't keep going." Our review of the second amended complaint shows that it was chaotic in nature and contained allegations and arguments that were difficult to discern, even when liberally construed. Kimbrell had three opportunities to file a sufficient complaint, and there was no indication that allowing an additional amendment would result in a cure to the defective pleading. Thus, as to Kimbrell, the facts and circumstances of this case do not indicate the trial court abused its discretion in refraining from allowing her another opportunity to amend the complaint to either add counsel's signature or to proceed pro se solely on her own behalf. Additionally, allowing an amendment of the pleading in regard to Kimbrell's mother and husband was not appropriate because neither of them have formally appeared in this matter. We, therefore, conclude that the trial court did not abuse its discretion in finding there was not an alternative remedy to a dismissal of the second amended complaint.

¶ 46 Consequently, given that the facts and circumstances of this case do not support an alternative remedy to a dismissal, Kimbrell's representation on behalf of her mother and husband rendered the proceedings null and void where Kimbrell is not a licensed attorney capable of bringing claims on behalf of her mother and husband. Although the trial court's written order indicates this matter was dismissed pursuant to section 2-619 of the Code, our review of the trial court's oral rulings indicates this matter was, in fact, dismissed as a nullity where the trial court found that Kimbrell was engaging in the unauthorized practice of law in that it was "clear" she was representing all three plaintiffs. Therefore, we affirm the trial court's dismissal of the second amended complaint as a nullity.

¶ 47 As a final matter, we note the attorney for defendant had requested that the trial court rule that the previous sanctions order entered pursuant to Rule 137 against Kimbrell in case No. 12-MR-272 be made applicable to defendant in this case. The trial court incorporated that order into the order entered in this case. Rule 137 provides,

"Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address. * * * If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction." Ill. S. Ct. R. 137 (eff. July 1, 2013).

¶ 48 On appeal, Kimbrell makes no argument as to whether the Rule 137 sanctions order entered in this case was an abuse of the trial court's discretion. See Dismuke v. Rand Cook Auto Sales, Inc. , 378 Ill. App. 3d 214, 217, 317 Ill.Dec. 727, 882 N.E.2d 607 (2007) (a reviewing court will not disturb a trial court's decision regarding Rule 137 sanctions absent an abuse of discretion). We, therefore, do not address the propriety of the Rule 137 sanctions order entered by the trial court in this case.

¶ 49 CONCLUSION

¶ 50 The judgment of the circuit court of Peoria County is affirmed.

¶ 51 Affirmed.

Justices Holdridge and McDade concurred in the judgment and opinion.

      The other tracts were listed as property identification Nos. 14-17-126-003 (1301 Jeth Court), 14-17-126-006 (1300 Jeth Court), 14-17-126-011 (1317 Jeth Court), 14-17-126-010 (1308 Jeth Court), and 14-17-126-012 (6608 N. University Street).

      This remaining parcel of property had been improved with a 5-unit apartment building-3½ units were located on a parcel of property mortgaged by Fannie Mae and the other 1½ units were located on a parcel of property mortgaged by State Bank of Speer. A report submitted by a certified real estate appraiser indicated that at some point in 2011, those two separate parcels had been combined to create a new parcel, which was assigned property identification No. 14-17-126-020. A relief of the bankruptcy stay had previously been granted in regard to the other Jeth Court parcels because those parcels were owned by Kimbrell's limited liability company and were not part of the plaintiffs' individual debtors' estates. After crediting the bid price for the sale of those other parcels, $515,575.25 was still due and the remaining parcel that secured that balance was valued at $70,000. In re Kimbrell , No. 14-81545, 2015 WL 3424458, slip op. at *1-2 (Bankr. C.D. Ill. May 27, 2015 ).

      Defendant State Bank of Speer was not one of the named defendants in that case. See Kimbrell v. Wells Fargo Multifamily Capital & Commercial Mortgage Servicing , 2015 IL App (3d) 140718-U, 2015 WL 5772108.

      On appeal, on September 30, 2015, this court affirmed the dismissal of the claims with prejudice, finding the doctrine of res judicata applied where Kimbrell had raised the same claims at issue on appeal in the mortgage foreclosure action and the remaining claims were forfeited because Kimbrell did not raise those claims on appeal. Wells Fargo , 2015 IL App (3d) 140718-U, ¶¶ 14, 16.

      Kimbrell further described property identification No. 14-17-126-020 as having been combined from various other parcels of property and listed identification numbers for those various parcels of property.

      Leuthold's affidavit indicated that he never interacted with plaintiffs outside of his capacity as a representative of the State Bank of Speer; plaintiffs entered into five loans from July 27, 2009, through November 8, 2010, and two subsequent loans consolidating those previous loans in the amounts of $487,625 (secured by mortgage Nos. 1, 2, and 3) and $231,482.89 (secured by mortgage Nos. 4 and 5), which had not been paid or released and were in default.

      Kimbrell indicated that this was an action to quiet title to property located at 1324 to 1330 W. Jeth Court, 1306 W. Jeth Court and 6522, 6600, and 6608 N. University Street in Peoria, Illinois. She appears to further alleged that property identification No. 14-17-126-020 had been "combined from" various parcels of property identification Nos. 14-17-126-004 (parcels A, B, and C), 14-17-126-015, 14-17-126-016, 14-17-126-017, and 14-17-126-012 (an easement located on property identification No. 14-17-126-004 and frontage parcels A, B, and C).

      Kimbrell alleged, "[t]his action pertains to the properties known as 1324-1330 W. Jeth Ct. Peoria, IL 61614 combined tax IDs 14-17-126-004, 14-17-126-019; frontage lots A & B, 14-17-126-015 1 ac R-7 parking lot/wooded lot 1306 W. Jeth Ct, 14-17-126-016 6522 N University St, 14-17-126-017 6600 N University and 14-17-126-012-Parcel C 6608 N University common addresses and Tax ID. Parcels A-B-C case 99-CH-393 survey Exhibit A."

      Kimbrell's address of record is listed as 6608 N. University Street in Peoria, Illinois, on her filings and in the notices defendant sent to Kimbrell.

      After filing the second amended complaint in this case and prior to defendant filing its motion to dismiss, Kimbrell filed a motion for summary judgment on April 17, 2017. She, thereafter, filed a "motion request for admission of facts" and a "motion to deem facts admitted and for sanctions."

      Kimbrell further argued that defendant had admitted it did not have a mortgage on the subject property by way of its failure to respond to her Illinois Supreme Court Rule 216 (eff. July 1, 2014) request to admit.

      Our supreme court has not ruled on the efficacy of this statute as it relates to spousal representation.


source: Caselaw Access Project

author: Loretta H. Rush, Chief Justice of Indiana Rush, Chief Justice, dissenting.

license: Public Domain

text:
    Timothy D. MARTIN, Appellant, v. STATE of Indiana, Appellee.
    Court of Appeals Case No. 29A04-1712-CR-2992
    Supreme Court of Indiana.
    Filed January 25, 2019
    Order
   Loretta H. Rush, Chief Justice of Indiana

This matter has come before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petition.

Being duly advised, the Court DENIES the petition to transfer.

David, J., Massa, J., and Slaughter, J., vote to deny transfer.

Rush, C.J., dissents from the denial of transfer with separate opinion in which Goff, J., joins.

Rush, Chief Justice, dissenting.

Are additional procedural safeguards necessary to ensure that indigent Hoosiers aren't incarcerated for probation violations that result simply from their poverty? Yes-and it's imperative that this Court explicitly establish those protections. Today, however, this Court declines to do so, and I thus respectfully dissent from the denial of transfer.

"[T]o prevent indigent defendants from being imprisoned because of their inability to pay," Garrett v. State , 680 N.E.2d 1, 2 (Ind. Ct. App. 1997), the Indiana General Assembly enacted a statute mandating that "[p]robation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay," Ind. Code § 35-38-2-3(g) (2018) ; see Pub. L. No. 311, § 3(e), 1983 Ind. Acts 1861, 1877. But this statutory requirement is not the only limit on probation revocation for a person who is unable to pay. See Runyon v. State , 939 N.E.2d 613, 616 (Ind. 2010) (recognizing that "more may be required beyond satisfaction of [Indiana's] statut[e]").

The due process and equal protection guarantees of the Federal Constitution impose their own procedural and substantive limits. See Black v. Romano , 471 U.S. 606, 610, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). The Supreme Court of the United States held in Bearden v. Georgia that courts may not revoke a defendant's probation for failure to pay a fine or restitution without first making an inquiry into the reason for that failure:

If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.

461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The Bearden Court reasoned that "[t]o do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine." 461 U.S. at 672-73, 103 S.Ct. 2064.

Although Bearden specifically addressed only fines and restitution, its reasoning applies equally to other "conditions of a sentence that imposes financial obligations on the person," I.C. § 35-38-2-3(g). This is because, whether the condition is a fine, restitution, or some other financial obligation, to imprison the probationer simply because he cannot pay "would be contrary to the fundamental fairness required by the Fourteenth Amendment." Bearden , 461 U.S. at 673, 103 S.Ct. 2064 ; see United States v. Parks , 89 F.3d 570, 572-73 (9th Cir. 1996) ; People v. Souffrance , 94 A.D.3d 1024, 942 N.Y.S.2d 180 (N.Y. App. Div. 2012) ; State v. Miller , 180 Wash.App. 413, 325 P.3d 230, 236-37 (2014) ; cf. Whedon v. State , 765 N.E.2d 1276, 1279 (Ind. 2002) ; Henderson v. State , 44 N.E.3d 811, 815 (Ind. Ct. App. 2015).

Thus, when a defendant is too poor to meet a probation condition that imposes a financial obligation, Section 35-38-2-3(g) and Bearden offer protection from revocation. In other words, incarceration is reserved for those who can pay, but won't-not for those who merely can't pay.

But how do we ensure this is faithfully executed in Indiana courts? By implementing simple procedural safeguards. Specifically, before a trial court revokes probation and imposes incarceration for failure to meet a financial obligation, it should be required to enter findings about

(1) the financial resources the court relied on to conclude that nonpayment was willful; or
(2) if the defendant was not at fault for nonpayment, why alternatives to incarceration are inadequate, in the particular case, to meet the State's interests in punishment and deterrence.

These findings align not only with the statutory and constitutional demands described above, but also with a recommendation from a 2017 bench card for judges, produced by The National Task Force on Fines, Fees and Bail Practices. National Center for State Courts, Lawful Collection of Legal Financial Obligations: A Bench Card for Judges (2017), https://www.ncsc.org/~/media/Images/Topics/Fines% 20Fees/BenchCard_FINAL_Feb2_2017.ashx (last visited Jan. 14, 2019). Moreover, as Judge Robb aptly observed, these findings would "protect constitutional principles of fundamental fairness, and significantly aid [appellate] review of such cases." Martin v. State , No. 29A04-1712-CR-2992, 2018 WL 4275412, at *9 n.4 (Ind. Ct. App. Aug. 27, 2018) (unpublished decision) (Robb, J., dissenting). These compelling reasons to implement simple procedural safeguards are further underscored by the facts of this case.

Here, Timothy Martin pleaded guilty to and was convicted of three counts of child molestation. Martin then served nearly fourteen years in the Department of Correction before being released to probation, which included special conditions related to his status as an adult sex offender. Approximately nine months after his release, the State alleged that Martin had failed to provide written verification demonstrating his completion of required evaluations and programs. Martin admitted to the violations, and he was ordered to serve two years of his previously suspended sentence, on work release with Hamilton County Community Corrections.

During his time on Community Corrections, Martin worked at a Wendy's in Noblesville, Indiana. After the successful completion of his two-year executed sentence on work release, Martin was released and placed back on probation. At the time of his release, Martin owed over $ 3,500 in court fees, had no driver's license, and no longer had a consistent place to sleep each night. He was homeless.

Martin continued his employment with the Wendy's in Noblesville. But without a place to live, in June he moved to Anderson, Indiana, to stay with his sister and her family. Because of the distance and an inability to pay for and secure transportation, he lost his job.

Martin testified he was also therefore unable to pay for and attend four required sex offender counseling sessions that summer. The State then filed a notice of probation violation against Martin. The information alleged, in part, a violation of a condition that required Martin to "attend, actively participate in and successfully complete a court-approved sex offender treatment program." That same condition stated that "[p]rompt payment of any fees is [Martin's] responsibility," and the State claimed that Martin owed over $ 300 for the counseling.

At a fact-finding hearing, Martin admitted to the violations, and the State proffered a factual basis for the admission. The State pointed out, in part, that Martin "was unsuccessfully discharged from sex offender counseling due to noncompliance with attendance and financial obligations" and that "[a]t the time of his discharge he had an outstanding balance in the amount of $ 310." Martin requested to hold off the dispositional hearing for forty-five days so that he could "hopefully get the money and get back into treatment." The trial court granted his request.

At that later dispositional hearing, Martin testified that he had obtained two jobs: full-time employment that would begin that afternoon or the next day, and a part-time job at a local Wendy's where he would likely begin working the following week. Martin further testified that he had found reliable transportation to and from work and his counseling appointments. And he informed the trial court that he would be able to resume counseling in a few weeks "since I will actually have the money to go ahead and pay what my counselor for the [Sex Offender Management and Monitoring] Treatment Program asked me to pay." He explained that he needed to pay $ 60 to get back into classes and "start paying the $ 319 on the back that I owe."

However, the trial court denied Martin's request to remain on probation. It instead ordered him to serve the remaining four years of his previously suspended sentence in the Department of Correction.

The trial court premised its revocation decision on Martin's failure to participate in counseling. But Martin could participate in counseling only if he paid the fees for it-and payment was an explicit requirement listed within his probation conditions. Martin's unequivocal position was that he could not restart counseling until he had enough money for those fees. So, it seems the trial court may have incarcerated Martin simply because he couldn't meet a probation condition "that impose[d] financial obligations" on him. I.C. § 35-38-2-3(g). We simply don't know-highlighting why certain additional findings on a defendant's financial resources or alternatives to incarceration are crucial. Cf. Bell v. State , 59 N.E.3d 959, 963-64 (Ind. 2016) (reiterating that trial courts must "engage in some inquiry of the defendant to determine his or her ability to pay" before setting restitution as a condition of probation).

Additional findings will, of course, not always be necessary when an indigent defendant's probation is revoked. But they should have been here. The State's probation-violation information highlighted Martin's outstanding balance with his sex offender counseling, and Martin and his counsel stressed repeatedly that Martin's indigency was impeding his ability to attend counseling. On this record, it's unclear whether the trial court believed Martin did, in fact, have financial resources to pay for counseling or, if not, whether an alternative to incarceration was inadequate.

To be sure, this incomplete record hinders our appellate review. But here's what we do know. Martin is now incarcerated. His unrebutted testimony was that he had secured employment and reliable transportation, allowing him to resume counseling. He had not reoffended, and the State never alleged he did anything illegal or put anyone in harm's way while on probation. As a convicted sex offender coming out of Community Corrections, Martin faced limited housing and employment options, which directly led to his homelessness and significant financial hardship. Despite relying on others for transportation to and from his job at Wendy's, he was able to maintain employment for a time while looking for a long-term place to live. But by moving to escape homelessness, Martin lost his job and had no money to pay for his counseling sessions.

This is not to say that Martin's probation conditions were unfair, or that the State was wrong in filing an information of violation. But Section 35-38-2-3(g) and Bearden protect against revoking probation simply because an indigent defendant can't meet a condition's imposed financial obligation. In cases that implicate both Section 35-38-2-3(g) and Bearden , as here, limited additional findings are the appropriate procedural safeguards to ensure that indigent defendants don't end up incarcerated just because they're poor.

For these reasons, I respectfully dissent from the denial of transfer and would remand with instructions for the trial court to make additional findings consistent with this opinion.

Goff, J., joins.

      Martin's driver's license has been suspended since 1998, and he testified that he owes several hundred dollars just to begin the process of getting it reinstated.


author: Riley, Judge.

text:
    COLLINS ASSET GROUP, LLC, Appellant-Plaintiff, v. Alkhemer ALIALY, Appellee-Defendant.
    Court of Appeals Case No. 18A-CC-1160
    Court of Appeals of Indiana.
    FILED December 6, 2018
    Attorney for Appellant: Brad A. Council, Slovin & Associates Co., LPA, Cincinnati, Ohio
    Attorney for Appellee: Christopher J. McElwee, Monday McElwee Albright, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Collins Asset Group, LLC (CAG), appeals the trial court's dismissal of its foreclosure action against Appellee-Defendant, Alkhemer Alialy (Alialy).

[2] We affirm.

ISSUE

[3] CAG presents us with one issue on appeal, which we restate as: Whether the trial court erred when it granted Alialy's motion to dismiss, and concluded that CAG's action was barred by the six-year statute of limitation pursuant to Indiana Code section 34-11-2-9.

FACTS AND PROCEDURAL HISTORY

[4] On June 29, 2007, Alialy entered into a promissory note with GMAC Mortgage LLC (GMAC), whereby Alialy promised to pay GMAC the amount of $60,000, plus interest at the rate of 12% per annum, in monthly payments of $631.93 beginning on September 1, 2007, and continuing through August 1, 2032. At the same time Alialy entered into a promissory note, Alialy also entered into a mortgage with Mortgage Electronic Registration Systems, Inc. (MERS), as the nominee of GMAC. The mortgage was incorporated into the note as security for the loan. Pursuant to the terms of the mortgage, a junior lien was placed on the property of Alialy.

[5] On June 9, 2008, Wells Fargo Bank, N.A. (Wells Fargo), as priority lien holder on the property, filed a foreclosure action on the mortgage against Alialy. On July 28, 2008, the Hancock Superior Court entered a default judgment against Alialy and a decree of foreclosure. Alialy made no further payments toward the GMAC note after July 28, 2008.

[6] On June 17, 2016, Alialy was informed that the note had been transferred to CAG on December 31, 2014, and that he should begin making payments to CAG on the outstanding balance due on the loan starting September 1, 2016. Alialy did not make the payment, and on October 24, 2016, CAG sent its notice of acceleration to Alialy whereby it accelerated payments due from September 1, 2016, to the maturity date of the loan. On April 26, 2017, CAG filed its Complaint upon the note. On June 23, 2017, Alialy filed his motion to dismiss the Complaint, contending that CAG's claim was barred by the six-year statute of limitations, pursuant to Ind. Code § 34-11-2-9. On July 19, 2017, CAG filed its motion in opposition, claiming that the Complaint was not barred as the statute of limitations only began to run at the moment CAG accelerated the payment on the note. On April 16, 2018, after a hearing, the trial court summarily dismissed CAG's Complaint for failure to state a claim upon which relief can be granted.

[7] CAG now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] CAG contends that the trial court erred in dismissing its Complaint against Alialy pursuant to T.R. 12(B)(6). The standard of review on appeal from a trial court's grant of a motion to dismiss for failure to state a claim is de novo and requires no deference to the trial court's decision. Arflack v. Town of Chandler , 27 N.E.3d 297, 302 (Ind. Ct. App. 2015). The grant or denial of a motion to dismiss turns on the legal sufficiency of the claim and does not require determinations of fact. Id. Therefore, a motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief. Id. Thus, while we do not test the sufficiency of the facts alleged with regard to their adequacy to provide recovery, we do test their sufficiency with regards to whether or not they have stated some factual scenario in which a legally actionable injury has occurred. Id. In determining whether any facts will support the claim, we look only to the complaint and may not resort to any other evidence in the record. Id.

[9] Here, the trial court dismissed CAG's Complaint without a detailed written opinion as to its reasons for dismissal. When a court grants a motion to dismiss without reciting the grounds relied upon, it must be presumed on review that the court granted the motion to dismiss on all the grounds in the motion. Id. However, the proceedings during the hearing on the motion to dismiss clarify that the trial court not only relied on the allegations of the Complaint but also considered the parties' memoranda and an affidavit submitted by Alialy together with his motion. Accordingly,

If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

T.R. 12(B). A trial court's failure to give explicit notice of its intended conversion of a motion to dismiss to one for summary judgment is reversible error only if a reasonable opportunity to respond is not afforded a party and the party is thereby prejudiced. Doe v. Adams , 53 N.E.3d 483, 492 (Ind. Ct. App. 2016), trans. denied . Because CAG filed its own motion in opposition in response to Alialy's motion to dismiss and Alialy's reliance on documents outside the pleading was "readily apparent and unmistakable," no reversible error occurred. See id. at 493. Accordingly, as Alialy's motion to dismiss must be treated as one for summary judgment, we must determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Id. at 494.

[10] Relying on I.C. § 34-11-2-9, Alialy maintains that CAG's cause of action accrued, and the statute of limitations began to run, on the date of the last payment, i.e. , July 28, 2008. Thus, Alialy asserts, CAG's Complaint, which was filed April 26, 2017, was not timely under the six-year statute of limitations applicable to promissory notes. Indiana Code section 34-11-2-9 provides, in pertinent part, that "[a]n action upon promissory notes, bills of exchange, or other written contracts for the payment of money executed after August 31, 1982, must be commenced within six (6) years after the cause of action accrues."

[11] Statutes of limitation seek to provide security against stale claims, which in turn promotes judicial efficiency and advances the peace and welfare of society. Cooper Indus., LLC v. City of South Bend , 899 N.E.2d 1274, 1279 (Ind. 2009). The determination of when a cause of action accrues is generally a question of law. Imbody v. Fifth Third Bank , 12 N.E.3d 943, 945 (Ind. Ct. App. 2014). Under Indiana's discovery rule, a cause of action accrues, and the limitation period begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury. Cooper Indus., LLC , 899 N.E.2d at 1280. As such, "an action to recover a debt must be commenced within six years of the last payment." Holt v. LVNV Funding, LLC , 147 F.Supp.3d 756, 760 (S.D. Ind. 2015) (applying Indiana law and referencing I.C. § 34-11-29). Therefore, as Alialy ceased payment on the note on July 28, 2008, any cause of action filed after July 28, 2014 would be barred by the statute of limitations.

[12] However, where, as here, the installment contract contains an optional acceleration clause, by which the creditor may declare all installments of the loan due and payable after default, the statute of limitations to collect the debt does not begin to run immediately upon the debtor's default. Smither v. Asset Acceptance, LLC , 919 N.E.2d 1153, 1160 (Ind. Ct. App. 2010). Instead, the statute generally begins to run only when the creditor exercises the optional acceleration clause. Id. Nevertheless, the Smither court cautioned that, "Waiting until after the statute of limitations has passed following default before making demand for full and immediate payment of a debt is per se an unreasonable amount of time to invoke an optional acceleration clause and cannot be given effect." Id. at 1161-62. The court also noted, " 'a party is not at liberty to stave off operation of the statute [of limitations] inordinately by failing to make demand.' " Id. at 1161 (quoting Curry v. United States , 679 F.Supp. 966, 970 (N.D. Cal. 1987) ).

[13] In the case at bar, CAG waited to accelerate the note until October 24, 2016, and did not filed its Complaint until April 26, 2017. Accordingly, CAG's acceleration option was exercised a full two years after CAG's cause of action was barred by the statute of limitation. As CAG's attempt to exercise the acceleration clause did not prevent the six-year statute of limitation from taking effect and expiring, CAG's acceleration clause cannot be given effect and its Complaint is barred.

CONCLUSION

[14] Based on the foregoing, we hold that the trial court properly dismissed CAG's cause of action.

[15] Affirmed.

[16] Vaidik, C. J. and Kirsch, J. concur

      In an effort to circumvent the application of I.C. § 34-11-2-9, CAG asserts that I.C. § 26-1-3.1-118 governs the case at bar. However, as CAG failed to raise this issue before the trial court, it waived the argument for our review. See Van Winkle v. Nash , 761 N.E.2d 856, 859 (Ind. Ct. App. 2002) (Failure to raise an issue before the trial court will result in waiver of that issue).


author: May, Judge.

text:
    Makenzie D. SHULTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 79A02-1712-CR-2835
    Court of Appeals of Indiana.
    Filed December 7, 2018
    Attorney for Appellant: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Makenzie D. Shultz appeals following her convictions of Level 1 felony neglect of a dependent resulting in death, Level 3 felony neglect of a dependent resulting in serious bodily injury, Class A misdemeanor false informing, Class A misdemeanor failure to report a dead body, Level 6 felony obstruction of justice, and two counts of Level 6 felony perjury. Shultz argues she was subjected to double jeopardy, there is insufficient evidence to support her conviction of neglect of a dependent resulting in death, and her sentence is inappropriate. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] On Monday, November 16, 2015, Shultz went to check on her daughter B.G., who was allegedly napping. B.G. was dead. Shultz and her boyfriend, Chad Giroux Jr., who is the father of B.G., asked Lauren Mood, Giroux's sister who was visiting, to drive them to the hospital.

[3] At the hospital, Dr. Andrew Alaimo attempted to treat B.G., who had no heartbeat and was very thin with little muscle tone. Dr. Alaimo quickly realized that B.G. had been dead for "quite some time." (Tr. Vol. II at 58.) B.G.'s body was at room temperature and she appeared emaciated. B.G.'s skin was green and smelled of decomposition. Dr. Aliamo estimated B.G. had been dead for two days.

[4] Deputy Coroner Mary Jasheway investigated B.G.'s death. She noted the pattern imprinted on B.G.'s face matched the blanket she was brought in with and opined that white marks on B.G.'s nose indicated something pushed her nose up. During the autopsy, Dr. Allan Griggs noted many signs B.G. had been neglected. Dr. Griggs concluded B.G. was dehydrated, constipated, and malnourished. Dr. Griggs deduced B.G. had been dead for longer than twenty-four hours and her cause of death was asphyxiation.

[5] Detective Daniel Long met with Giroux and Shultz separately. Detective Long noticed their stories did not match, so he went to the Shultz and Giroux home to investigate. Detective Long noted B.G. had slept in a downstairs closet in a bed made of blankets stacked on the floor. There was no baby monitor in the closet. Giroux told Detective Long that, on multiple occasions, he had found B.G. in the closet with blankets or clothing over her face. Giroux thought this was being done to muffle B.G.'s crying. Giroux later confessed to Detective Long that B.G. had died Sunday, November 15, 2015. Giroux admitted he and Shultz agreed to find B.G. dead when Mood was present and to react like it just happened.

[6] At trial, a jury found Shultz guilty of all crimes charged: Level 1 felony neglect of a dependent resulting in death, Level 3 felony neglect of a dependent resulting in serious bodily injury, Level 5 felony neglect of a dependent resulting in bodily injury, Level 6 felony neglect of a dependent, Class A misdemeanor false informing, Class A misdemeanor failure to report a dead body, and Level 6 felony obstruction of justice. Shultz then pled guilty to two counts of Level 6 felony perjury. The trial court merged the findings of Level 5 felony neglect and Level 6 felony neglect with the Level 3 felony neglect. The court imposed a forty-four-year sentence with four years suspended to probation.

Discussion and Decision

Double Jeopardy

[7] Shultz argues her convictions of Level 1 felony neglect of a dependent resulting in death and Level 3 felony neglect of a dependent resulting in serious bodily injury violate her constitutional right to be free from double jeopardy. See Ind. Const. art. 1, § 14 ("No person shall be put in jeopardy twice for the same offense."). Two offenses are the "same offense" in violation of Indiana's Double Jeopardy Clause if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Spivey v. State , 761 N.E.2d 831, 832 (Ind. 2002). We review de novo whether a defendant's convictions violate this provision. Spears v. State , 735 N.E.2d 1161, 1166 (Ind. 2000), reh'g denied .

[8] Shultz claims her convictions violate the "actual evidence test." The actual evidence test requires us to "determine whether each challenged offense was established by separate and distinct facts." Richardson v. State , 717 N.E.2d 32, 53 (Ind. 1999), holding modified by Garrett v. State , 992 N.E.2d 710 (Ind. 2013) (modification as to cases involving hung jury or acquittal). To determine what facts were used to convict, we consider the charging information, the final jury instructions, the evidence, and the arguments of counsel. Davis v. State , 770 N.E.2d 319, 324 (Ind. 2002), reh'g denied .

[9] In order to convict Shultz of either version of neglect, the State needed to prove Shultz was:

A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally: (1) place[d] the dependent in a situation that endanger[ed] the dependent's life or health; (2) abandon[ed] or cruelly confine[d] the dependent; [or] (3) deprive[d] the dependent of necessary support ....

Ind. Code § 35-46-1-4(a) (2014) (defining neglect as a Level 6 felony). To convict Shultz of neglect as a Level 1 felony, the State also had to prove Shultz was "at least eighteen years of age" and the neglect "result[ed] in the death of a dependent who [was] less than fourteen (14) years of age." I.C. § 34-46-1-4(b)(3) (2014). To convict Shultz of neglect as a Level 3 felony, the State had to prove Level 6 felony neglect that resulted in serious bodily injury. I.C. § 34-46-1-4(b)(2) (2014).

[10] Shultz was not formally charged in this case. Instead, she was indicted by a grand jury. The indictments were vague and mentioned only the elements of the crime. The Level 1 felony indictment read as follows:

The Grand Jury of the County of Tippecanoe duly and legally impaneled upon their oath or affirmation do present that there is sufficient cause to determine during March 17, 2015 through November 16, 2015, in the County of Tippecanoe, State of Indiana, Chad A. Giroux, Jr. and or Makenzie D. Shultz, person(s) having the care of a dependent, to wit: B.G., Whether assumed voluntarily or because of a legal obligation, did knowingly or intentionally place said B.G. in a situation that endangered his/her life or health, abandon or cruelly confine said B.G; and/or deprive said B.G. of necessary support, and further, said offense was committed by a person at least eighteen years of age, to wit: Makenzie Shultz being twenty-one or twenty-two (21-22) years of age and/or Chad Giroux, Jr. being twenty-six (26) years of age and resulted in the death of B.G., a dependent less than fourteen (14) years of age[.]

(App. Vol. 2 at 22.) The indictment for the Level 3 felony stated:

The Grand Jury of the County of Tippecanoe duly and legally impaneled upon their oath or affirmation do present that there is sufficient cause to determine during March 17, 2015 through November 16, 2015, in the County of Tippecanoe, State of Indiana, Chad A. Giroux, Jr. and/or Makenzie D. Shultz, person(s) having the care of a dependent, to Wit: B.G., whether assumed voluntarily or because of a legal obligation, did knowing or intentionally place said B.G. in a situation that endangered his/her life or health, abandon or cruelly confine said B.G., and/or deprive said B.G. of necessary support; and further, said offense resulted in serious bodily injury to B.G.

(Id. at 24.) These indictments do not appear to allege any facts to distinguish the act of neglect underlying each charge. Compare with Ramon v. State , 888 N.E.2d 244, 254 (Ind. Ct. App. 2008) (charging information alleged separate facts in support of the common elements of the two crimes).

[11] The jury instructions tracked the language of the indictments. (See App. Vol. 2 at 118-134.) Thus, they also did not inform the jury which pieces of evidence supported the charge of neglect resulting in death and which distinct other pieces of evidence supported the charge of neglect resulting in serious bodily injury.

[12] As the trial court found when reviewing the double jeopardy argument during the sentencing hearing, there were acts committed by Shultz that justified a second conviction of neglect. Dr. Griggs testified B.G.'s cause of death was asphyxiation. He also concluded that prior to her death, B.G. had been dehydrated, constipated, and malnourished, and those conditions indicative of neglect would have produced "extreme pain." (Tr. Vol. II at 121.)

[13] However, to avoid double jeopardy, the prosecutor needed to separate the facts in support of the multiple counts of neglect and present argument that clarified for the jury the facts it needed to find to support each separate count. During closing arguments, the prosecutor reviewed each count separately, explaining the elements of the count and the evidence that proved those elements.

[14] For the Level 1 felony, neglect resulting in death, the prosecutor presented the evidence of asphyxiation to prove death. (See Tr. Vol. 4 at 8.)

[15] Then, when talking about Level 3 felony neglect resulting in serious bodily injury, the prosecutor pointed out B.G.'s other injuries, as she needed to do to demonstrate a separate crime, but she also repeatedly mentioned the asphyxiation :

Looking at the second charge, the second - as we talked about in jury selection the first, second, third and fourth charges are very similar, but in this case specifically because we're talking about a wide range of time different things are considered for each one as well. Here we're talking about other things outlined in the autopsy report not just the asphyxiation . We're also talking about her emaciation, her dehydration, her malnutrition and her impacted bowel. So here the only element that changes is that last one. Elements one and two you can apply the same evidence that you did for count one.

(Id. at 10) (emphasis added).

...not again just the asphyxiation but also her malnutrition, her impacted bowel and her dehydration.

(Id. ) (emphasis added).

And as far as serious bodily injury goes, you'll have a definition of serious bodily injury and that being serious or permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the function of a bodily member, organ or loss of a fetus. The asphyxiation alone accounts for some of these , but there are also separate options as the result of the Defendant's conduct.

(Id. at 15) (emphasis added).

[16] Although not directly at issue in this appeal because the trial court merged the two lesser counts of neglect into the Level 3 felony conviction, the prosecutor continued this conflation of the asphyxiation with the other injuries while discussing those lesser counts:

And this count you can apply it very much the same evidence as count two, very much.

(Id. at 16.)

Bodily injury is defined by law, it means any impairment of physical condition including physical pain. And again, you can use the same evidence as Count II and we know from Dr. Griggs that there would have been physical pain. Also, any impairment, I would submit to you that means malnourishment, dehydration, emaciation, impacted bowel, all would be an impairment of her body. By getting serious bodily injury we also have bodily injury.

(Id. )

However, again, I would submit to you we have serious bodily injury, not only in all of the conditions that Dr. Griggs mentioned, but also the asphyxiation that's not separate. It's a separate condition, caused at a separate time, but still a consideration. Count IV is just Neglect of a Dependent with no end result that you have to find. This is the same as the others except there is - there just is no fifth element here. And you can apply the same evidence you did in Count II and Count III. And remember for these neglect counts you are considering everything, everything, the whole picture that you've seen. From no longer receiving the right formula, at least not from WIC, to not taking her to the doctor, to the living conditions on top of the asphyxiation.

(Id. at 16-17) (emphasis added).

[17] We regret that we must vacate one of Shultz's convictions for neglect. When the State asked the jury to convict Shultz for the four counts of neglect, the prosecutor explicitly told the jury it could rely on asphyxiation to support all of those counts. Thus, there is a reasonable probability the jury relied on the same evidence to find Shultz guilty of all four counts. Accordingly, we vacate Shultz's conviction of Level 3 felony neglect. See Clark v. State , 732 N.E.2d 1225, 1229 (Ind. Ct. App. 2000) (vacating two attempted arson convictions when all three convictions were based on one act).

Sufficiency of the Evidence

[18] Shultz next argues there was insufficient evidence to support her conviction of neglect of a dependent resulting in death. When considering the sufficiency of evidence, "a reviewing court does not reweigh the evidence or judge the credibility of the witnesses." McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005). We must affirm "if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt." Id. at 126 (internal citation omitted). Shultz does not dispute the evidence of neglect. Instead, Shultz questions whether there was enough evidence to prove her actions were intentional and whether there was evidence her neglect resulted in the death of B.G.

[19] As for Shultz's mens rea, we first note the definition of neglect did not require her act to be intentional. See I.C. § 35-46-1-4(a) (2014) (defining neglect as an intentional or knowing act).

Under the child neglect statute a 'knowing' mens rea requires a subjective awareness of a 'high probability' that a dependent had been placed in a dangerous situation. Because, in most cases, such a finding requires the factfinder to infer the defendant's mental state, this Court must look to all the surrounding circumstances of a case to determine if a guilty verdict is proper.

Pierson v. State , 73 N.E.3d 737, 741 (Ind. Ct. App. 2017) (internal citations and quotations omitted), trans. denied .

[20] The State points to evidence that Shultz knew not having a proper bed for B.G. was dangerous. Nurse Analei Whitlock testified that, while meeting with Shultz, she explained how to safely put a baby down to sleep. Nurse Amy Guynn testified that, when a mother and child are released from the hospital, the family has a meeting with hospital staff and receives a booklet on safe sleep practices for the baby. Each parent must participate before they can be discharged. Shultz also has another daughter, L.G., who was older than B.G. and who was cared for by Shultz. Giroux testified Shultz was a good care provider for L.G. This evidence would allow a jury to determine that Shultz knew she was neglecting B.G. See Pierson , 73 N.E.3d at 737 (witness testimony about defendant being able to provide basic care for his other children was sufficient to show knowledge); and see Pierson , 73 N.E.3d at 741 (evidence was sufficient to prove father knowingly neglected child when he had been instructed on feeding and the child died of malnutrition).

[21] As for Shultz's neglect being the cause of death, the State presented evidence asphyxiation was the cause of death. The coroner listed the cause of death as asphyxia. (Ex. at 30.) Deputy Coroner Mary Jasheway testified to the marks she observed on B.G. during the autopsy. Jasheway explained the marks are referred to as "modeling" and demonstrate something had been up against B.G.'s face. (Tr. Vol. II at 75.) Jasheway also explained that the white areas on the bridge of B.G.'s nose were a sign her nose had been pushed up. Giroux testified he had found B.G. with blankets on her face at least twice. Based on these facts, the evidence was sufficient to prove Shultz's neglect resulted in B.G.'s death. See , e.g. , McConniel v. State , 974 N.E.2d 543, 559 (Ind. Ct. App. 2012) (evidence of malnourishment provided inference neglect was cause of death), trans. denied .

Conclusion

[22] Because the jury could have relied on the evidence of asphyxiation to support multiple findings of neglect, Shultz's multiple convictions of neglect subjected her to double jeopardy. However, there was sufficient evidence to convict Shultz of neglect of a dependent resulting in death. Accordingly, we vacate Shultz's conviction of neglect of a dependent resulting in serious bodily injury and remand for the court to resentence Shultz for the remaining convictions.

[23] Affirmed in part, reversed in part, and remanded.

Baker, J., and Robb, J., concur.

      Ind. Code § 35-46-1-4(a)(1-3) & (b)(3) (2014).

      Ind. Code § 35-46-1-4(a)(1-3) & (b)(2) (2014).

      Ind. Code § 35-44.1-2-3(d)(1) (2014).

      Ind. Code § 35-46-19-3 (2008).

      Ind. Code § 35-44.1-2-2(a)(3) (2014).

      Ind. Code § 35-44.1-2-1(a) (2014).

      It is unclear when B.G. actually died. Based on the condition of B.G.'s body, the coroner estimated B.G. had been dead for over 24 hours when she was brought to the hospital on November 16. However, Giroux testified B.G. was "cold ... room temperature" when he held her on November 15. (Tr. Vol. III at 96.)

      Ind. Code § 35-46-1-4(a)(1-3) & (b)(1) (2014).

      Ind. Code § 35-46-1-4(a)(1-3) (2014).

      Shultz raises a third issue on appeal, which is that her sentence is inappropriate. Because we vacate Shultz's conviction of Level 3 felony neglect, we also vacate the 5-year sentence imposed for that crime, which was to be served consecutive to the 35-year sentence imposed for Level 1 felony neglect. Because trial courts often fashion individual sentences with an eye toward reaching a desired final cumulative sentence, see, e.g., Sanjari v. State , 981 N.E.2d 578, 583 (Ind. Ct. App. 2013) (recognizing the trial court's overall plans when sentencing), trans. denied , we remand for the court to resentence Shultz in light of the vacated sentence. As we remand for resentencing, we need not address Shultz's argument that her sentence is inappropriate.

      The State's Exhibits do not have proper page numbers, so we cite to the page number in the electronic PDF.