High court vacates portion of puppy mill opinion relating to subject matter jurisdiction

After granting transfer to clarify how a “clerical error” affected the citations in a June opinion from the Indiana Court of Appeals, the Indiana Supreme Court upheld the portion of that decision that relieved a former Indiana Attorney General’s Office attorney of a $15,000 judgment against him.

In a per curiam opinion issued Wednesday, the high court granted transfer to the case of Virginia Garwood and Kristen Garwood v. State of Indiana, et al., 31S01-1710-CT-647 for a limited purpose: to vacate the portion of the Court of Appeals’ June opinion that addressed subject matter jurisdiction.

In that opinion, which was the most recent decision in the long-running puppy mill case, the appellate court found a $15,000 judgment against attorney Andrew Swain was not supported by sufficient evidence. Swain, who was formerly chief counsel for tax litigation in the Office of the Indiana Attorney General, used an “Al Capone” approach to take down an illegal puppy mill operation in Harrison County that resulted in Virginia and Kristen Garwood pleading guilty to felony tax evasion.

The Garwoods successfully sought a compensatory verdict against Swain, but the appellate court overturned that verdict after clarifying that it, and not the Indiana Tax Court, had jurisdiction to hear the appeal. Specifically, Judge Paul Mathias wrote in a 59-page opinion that “neither the jurisdictional value of finality nor that of validity would be served by returning this case to the tax court to decide the constitutional and tort-law consequences of its earlier tax-law holding.”

In reaching that jurisdictional conclusion, the Court of Appeals cited the case of Garwood v. Indiana Department of State Revenue, 24 N.E.3d 548 (Ind. Tax Ct. 2014). However, that opinion was vacated by an Indiana Supreme Court published order issued on Feb. 8, 2016.

“Due to a clerical error, our Published Order was not sent to Thomson Reuters at that time,” the high court wrote in its per curiam opinion. “Therefore, when the Court of Appeals issued its opinion, the Published Order was not reported in the Northeastern Reporters or on Westlaw, which has since been corrected.”

“The Published Order resolved the issue of subject matter jurisdiction based on the parties’ representations at oral argument,” the court continued.

Thus, the justices vacated the portion of the Court of Appeals’ opinion that addressed subject matter jurisdiction, but summarily affirmed the remainder of the opinion.

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