Cellphone subpoena appeal tossed for man whose ex-wife’s body was found in lake

The Indiana Court of Appeals on Tuesday dismissed an appeal from a man whose ex-wife’s body was found in a southern Indiana lake six years ago. The man sought to quash a subpoena for his cellphone records sought by the woman’s father, who previously fought local law enforcement to win access to investigatory records pertaining to his daughter’s death.

Clay Kelley moved to quash a subpoena and sought a contempt finding and sanctions against Kenneth Todd Scales, the father of Kristy Kelley. Her body was found in the back seat of a car in a Warrick County lake two months after she went missing in 2014.

Scales subpoenaed Verizon Wireless for all of Clay’s cellphone records from July 1, 2014, to Oct. 1, 2014, after previously receiving Indiana State Police records showing that after Kristy and Clay had argued via text about her boyfriend, an ISP officer saw a time-stamped message from Kristy to Clay a few days before she disappeared saying “you would probably kill me and hide my body.”

“In short, Scales had a particular interest in Clay’s cell phone records,” Judge Edward Najam wrote in Tuesday’s opinion, Clay Kelley v. Kristy Kelley, Deceased, b/n/f Kenneth Todd Scales, 20A-MI-679.

The Warrick Superior Court denied Clay’s motion to quash the subpoena, which Najam noted in the opinion was moot because discovery had already been answered. But the appeals court dismissed the appeal, finding that while counsel for Clay had entered a limited appearance, Clay lacked standing to file a motion.

“An appearance, without more, does nothing but subject a person to the trial court’s jurisdiction. It does not confer either party or intervenor status on a nonparty,” the panel observed. “In particular, Trial Rule 4 provides in relevant part that a trial court ‘acquires jurisdiction over a party or person who enters an appearance in an action.’ While the ‘limited appearance’ filed by Clay’s attorney subjected Clay to the court’s jurisdiction, the appearance did not make him a party.”

The panel also rejected Scales’ cross-appeal seeking appellate attorney fees.

“Scales avers that Kelley’s appeal ‘completely lacked any articulated appellate error and ignored the abuse of discretion standard on appeal’ and that Kelley engaged in ‘character attacks’ on Scales’ counsel. … Scales further alleges unspecified violations of the Rules of Appellate Procedure. But Scales’ argument lacks citations either to Kelley’s briefs on appeal or the record. We hold that Scales has not satisfied his burden to demonstrate either substantive or procedural bad faith by Kelley in pursuing this appeal,” the panel held in rejecting Scales’ petition for appellate attorney fees.

A different COA panel in April 2019 ruled in Scales’ favor, finding he was entitled to law enforcement investigatory records from the Warrick County Sheriff’s Department, which had ruled Kristy’s death accidental within 24 hours of the recovery of her body. That case is Kenneth Todd Scales v. Warrick County Sheriff’s Department, 18A-MI-1590.

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