Arsenal Sav. Ass'n v. Westfield Lighting Co., Inc.
| Decision Date | 26 November 1984 |
| Docket Number | No. 4-1083A349,4-1083A349 |
| Citation | 471 N.E.2d 322 |
| Parties | ARSENAL SAVINGS ASSOCIATION, Appellant (Defendant Below), v. WESTFIELD LIGHTING CO., INC., Appellee (Plaintiff Below), Robert J. Conroy, Pamila K. Conroy, Hession Plumbing, (Defendants Below). |
| Court | Indiana Appellate Court |
A. Donald Wiles, II, Wiles & Niederhauser, Everett G. Kuhns, Indianapolis, for appellant.
Arsenal Savings Association (Arsenal) is before us complaining of the imposition of an amended judgment, which forecloses a mechanic's lien on property upon which Arsenal holds a mortgage. The original action sought the foreclosure of a mechanic's lien by Westfield Lighting Co., Inc., and Arsenal was made a party defendant. However, the original judgment was for monetary damages only against the property owners. Six months after the original judgment, Westfield sought to amend the judgment to provide for foreclosure. Eight months after that the trial court, without hearing, so amended the judgment. Arsenal argues the second judgment here was of no force and effect because the trial court had lost its jurisdiction to make substantive changes in the judgment ninety days after its issuance. After examining the record in detail, we find the trial court lost its original jurisdiction to amend without hearing nor was a nunc pro tunc entry appropriate. We further find the trial court should have treated the motion to amend as an Ind.Rules of Procedure, Trial Rule 60(B) motion and remand for a hearing thereon.
In May, 1981, Westfield filed a complaint to foreclose a mechanic's lien recorded on April 21, 1981, for materials furnished to the residence of Robert and Pamila Conroy. Westfield joined Arsenal and Hession Plumbing as party-defendants to answer to their respective claims on the subject real estate. Trial was had to the court, and after the presentation of the evidence, the court entered findings of fact and conclusions of law as requested by Arsenal and the Conroys:
on April 21, 1981.
2. That after December 2, 1980, [Westfield] did furnish certain materials which were placed upon the real estate in question and did furnish the same at the special instance and request of the defendants.
3. That the value of the said improvements placed on the real estate as fixtures was the sum of Two hundred fourteen dollars and ninety-three cents ($214.93).
4. That said defendants have failed and refused to pay the same to [Westfield].
5. That [Westfield] did, within sixty days of the time of the furnishing of said materials, file in the Office of the Marion County Recorder a notice in writing of its intention to hold a mechanic's lien on the real estate in question in the amount of Two hundred fourteen dollars and ninety-three cents ($214.93), and the 6. That [Westfield] employed an attorney, and that the reasonable fees for the prosecution and foreclosure of the lien as Three hundred dollars ($300.00).
same was recorded in Marion County in Miscellaneous Book 81 on page 22885.
7. That [Westfield] is entitled to interest on the judgment from April 21, 1981, to the present with costs of this action.
Therefore, based upon said findings, the Court would now enter the following conclusions of law:
1. That the law is with [Westfield] and it is therefore ordered that [Westfield] is entitled to receive of and from the defendants, Robert J. Conroy and Pamela [sic] Conroy, the sum of Two hundred fourteen dollars and ninety-three cents ($214.93) with interest from April 21, 1981 and costs of this action.
2. That [Westfield] is further entitled to receive of and from said defendants its reasonable attorney fees in the sum of Three hundred dollars ($300.00).
SO ORDERED this 29th day of Jan., 1982."
Record, p. 160-62. Three things are notable in this judgment: (1) it was rendered in personam against the Conroys, (2) it does not provide for foreclosure of Westfield's mechanic's lien, and (3) the court made no findings with regard to the alleged liens of Arsenal and Hession Plumbing. No appeal was taken from this judgment.
On July 20, 1982, after the Conroys failed to appear for proceedings supplemental, Westfield filed a petition to amend the judgment in order to foreclose on its mechanic's lien.
"Comes now the plaintiff and moves the Court to amend the judgment to foreclose mechanic's lien on the property herein described.
1. That there is due and owing the plaintiff from the defendants in the sum of $515.93.
2. That the plaintiff would request that the Court amend or correct the judgment, finding of fact and conclusion at law, to show a foreclosure of the mechanic's lien on the real estate described in the body of the mechanic's lien, and order that said real estate be sold and the mechanic's lien foreclosed on the same for payment of the judgment lien.
WHEREFORE: Plaintiff prays that the Court modify the heretofore judgment to show that the judgment is a lien on the real estate and the same foreclosed to satisfy the judgment; that the Court order the real estate sold; that the Court add additional attorney fees to the plaintiff's attorney and for all other proper relief."
Record, p. 167. On March 8, 1983, the court granted the petition without the benefit of hearing:
"Comes now [Westfield] by counsel and files its Petition to Amend Judgment, finding of fact and conclusion of law, which Petition reads in the following words and figures, to-wit: (H.I.)
And the Court, having seen and examined said petition, finds that the same should be granted.
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that the heretofore entered judgment is hereby amended and corrected so that the judgment is ordered to be a lien on the real estate, which real estate is more particularly described as follows:
Lot 67 in Castillia, Section 2, A subdivision in Marion County, Indiana.
The Court now orders that the said real estate be sold by the Sheriff of Marion County, Indiana, in manner provided by law, without relief from valuation or appraisement laws; and the proceeds from said sale shall be applied in the following order:
First, to the payment of the costs of this action accrued and to accrue, together with the costs and expenses of the Sheriff's sale of the real estate;
Second, to the payment of [Westfield's] judgment in the sum of $515.93 with additional attorney fees of $250.00 with interest at the rate of 12% per annum since the 1st day of February, 1982 Third, the balance, if any, to be paid to the Clerk of Marion County, Indiana, for the use and benefit of those rightfully entitled thereto and subject to further order of this Court.
A copy of this decree, duly certified by the Clerk of Hamilton County, Indiana under the seal of this Court shall be sufficient authority to the Sheriff of Marion County, Indiana, to proceed as herein directed."
Record, pp. 170-71. Here we note the court made no new or additional findings but merely changed the judgment portion of the original entry. Only Arsenal has pursued review in this court.
Westfield has not filed an appellee's brief so Arsenal only needs to establish prima facie error for us to reverse the trial court's decision. See, e.g., Bedree v. Sandler & Sandler, (1981) Ind.App., 426 N.E.2d 707. Arsenal has demonstrated such prima facie reversible error in its assertion Westfield filed its petition to amend the judgment too late for the court to properly alter its decision. We are therefore compelled to vacate the second judgment on this ground. 1
It is clear beyond any doubt that a trial court's jurisdiction over its judgments ceases after 90 days (except under limited circumstances, such as where child custody and child support are involved):
"All courts shall retain power and control over their judgments for a period of ninety (90) days after the rendering thereof in the same manner and under the same conditions as they have heretofore retained such power and control during the term of court in which the judgments were rendered."
IND.CODE 33-1-6-3. The trial court here issued its judgment on January 29, 1982. Westfield filed its petition to amend 172 days later, on July 20, and the court did not grant said petition until March 8, 1983. Both of these actions subsequent to the original judgment were far beyond the 90-day limit prescribed by law. Thus, the trial court was clearly without jurisdiction to act. See generally Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745 (term time); Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d 849.
We are cognizant that, as pointed out by Arsenal, exceptions to this principle can be made by nunc pro tunc entry as recognized in Ind.Rules of Procedure, Trial Rule 60(A). T.R. 60(A) permits entries made nunc pro tunc to correct clerical mistakes in judgments and errors arising from oversight or omission, Auto-Teria, Inc. v. Ahern, (1976) 170 Ind.App. 84, 352 N.E.2d 774, and such entries may be made at any time (except, of course, "[d]uring the pendency of an appeal," T.R. 60(A) ), e.g., First Bank of Madison v. Bank of Versailles, (1983) Ind.App., 451 N.E.2d 79; Drost v. Professional Building Service Corp., (1978) 176 Ind.App. 172, 375 N.E.2d 241, unless intervening rights are affected. In re Saric, (1925) 197 Ind. 1, 149 N.E. 434. However, case law defining the types of "errors arising from oversight or omission," which may be corrected, militates against our declaring the amended judgment a valid nunc pro tunc entry. 2
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