Brant v. Krilich, No. 45A03-0411-CV-514.

Docket NºNo. 45A03-0411-CV-514.
Citation835 N.E.2d 582
Case DateOctober 14, 2005
CourtCourt of Appeals of Indiana

835 N.E.2d 582

William J. BRANT, Jr., Appellant-Judgment Debtor; Brant Construction Management, Inc., Accurate Investments, LLC, et al., Appellants-Petitioners,
v.
Robert R. KRILICH, Appellee-Judgment Creditor, Mercantile National Bank of Indiana, Appellee-Garnishee-Defendant.

No. 45A03-0411-CV-514.

Court of Appeals of Indiana.

October 14, 2005.


835 N.E.2d 583

Patrick B. McEuen, Millbranth & Bush, Valparaiso, for Appellants.

Terrill D. Albright, Brian S. Fennerty, Jerome P. McCluskey, Baker & Daniels, Indianapolis, Amicus Curiae Attorneys.

Renee J. Mortimer, Scott B. Cockrum, Robert Kinsella, Hinshaw & Culbertson LLP, Schererville, for Appellees.

OPINION

SULLIVAN, Judge.

Appellant William J. Brant, Jr. appeals from the trial court's decision that Appellee Robert Krilich is entitled to a pro rata portion of certain bank accounts with which Brant is affiliated and to Brant's ownership interest in several limited liability companies ("LLCs").1 He presents numerous issues for our review, which we restate as two dispositive issues: (1) whether the various Garnishee Businesses2 should have received notice of the garnishment proceeding involving the checking accounts in their respective names, and (2) whether the Business Entities3 should have received notice of Krilich's intent to seek Brant's ownership interests

835 N.E.2d 584
in them. We reverse and remand for further proceedings not inconsistent with this decision. Because of the confusion which has existed throughout the original prosecution of this action, we also offer some direction and guidance to the trial court in resolving other issues which will necessarily arise upon remand

The underlying facts which led to Krilich's action to seek garnishment of funds from the Garnishee Businesses' checking accounts and the acquisition of Brant's ownership interests were explained by this court in Krilich v. Soltesz/Brant Development Co., 771 N.E.2d 1169, 1170-71 (Ind. Ct.App.2002), trans. denied, as follows:

"On December 31, 1986, Krilich and Brant, who was a partner of the Soltesz/Brant Development Company, entered into a Tenancy in Common Agreement with respect to a shopping center in Tampa, Florida. In part, the agreement provided that Krilich agreed to purchase an 80% interest in the shopping center in return for a guarantee from Brant that the shopping center would `produce a cash flow to Krilich equal to 9-1/2% of the amount invested by Krilich.' Appellant's App. p. 66. When the shopping center failed, Krilich filed a complaint against Brant in Hillsborough Circuit Court in Florida. On November 1, 1989, the Florida court entered a final judgment in favor of Krilich in the amount of $2,310,367.51 plus interest. A certified copy of the judgment was recorded in Hillsborough County on June 22, 1990 and it bore the name and address of Brant's attorney.4 The judgment was re-recorded in 1996 with the Hillsborough Circuit Court Clerk with an affidavit from Krilich's attorney, which contained Brant's last known address.
On June 17, 1996, Krilich filed a complaint on foreign judgment in Lake Circuit Court to domesticate the Florida judgment. Brant filed an answer to the complaint, but the parties later stipulated to dismissal of the complaint, without prejudice. On December 16, 1996, Krilich filed a motion for reinstatement following voluntary dismissal. The case was reinstated, by agreement, on March 26, 1997. Brant then filed an answer and motion for change of judge. Therefore, on May 19, 1998, Lake Superior Court Judge James Richards assumed jurisdiction.
On July 6, 1999, Krilich filed a motion for summary judgment. Brant filed a response and cross-motion for summary judgment arguing that the Florida court did not have jurisdiction over him, or in the alternative, that Krilich failed to properly record a lien on his Florida judgment, and therefore, no judgment lien should be recognized in Indiana. Appellant's App. pp. 45, 50. On June 4, 2001, the trial court granted Krilich's motion for summary judgment, in part, and granted Brant's motion in part, issuing the following order:
The Court, being duly advised, now finds as follows and enters these conclusions of law.
1. Krilich is the owner of a valid Florida judgment entered on November 1, 1989, following appropriate service of process upon Brant in accordance with both Florida and Indiana long-arm statutes, and Brant's challenges to the jurisdiction of the Florida
835 N.E.2d 585
Court over his person should be denied.
2. The Court, finds Brant's Cross-Motion for Summary Judgment and argument for denial of the attachment of Plaintiff's lien upon Brant's real estate in Indiana to be compelling and that there shall not be a lien on any real property owned by Brant in Indiana.
The Court therefore orders as follows:
1. Krilich's Motion for Summary Judgment is GRANTED to domesticate his judgment against Brant, individually, to the extent of Brant's personalty subject to attachment and garnishment to satisfy the judgment.
2. Brant's Cross-Motion for Summary Judgment is GRANTED to deny Plaintiff a lien against Defendant's real estate in Indiana to satisfy Plaintiff's judgment."

This court determined that the judgment was properly domesticated and that the trial court erred in concluding that Krilich could not maintain a lien against Brant's real property in Indiana. Id. at 1173.

Krilich subsequently sought garnishment of bank accounts which were "to the credit, either individually or jointly, of ... William J. Brant, Jr." Plaintiff's Exhibit 2. In so doing, on April 30, 2004, he served interrogatories upon Mercantile National Bank of Indiana ("Mercantile") seeking information on Brant's aforementioned accounts. On May 3, 2004, Mercantile placed a hold upon all funds in fifteen accounts with which Brant was affiliated and noted that those accounts were all "Business Checking" and the address listed for each was the same. Plaintiff's Ex. 2. Relying upon this information, Krilich argued to the trial court at a hearing held on May 20, 2004 that Mercantile's answer to the interrogatories was evidence that the "accounts were under the name of William Brant, Jr." Transcript at 4. Brant's counsel argued that the accounts were not Brant's accounts but belonged to the Garnishee Businesses. However, he also agreed that if the court determined that Brant did have ownership of the accounts, he would demonstrate that certain amounts were exempt from garnishment. The trial court then ruled that Krilich had proved that the accounts belonged to Brant. As a consequence, Ronald Schutz, the Treasurer for Brant Construction Management, Inc., who also is indirectly involved in the financial affairs of the remaining Garnishee Businesses, testified with regard to the activities and funding of the businesses. Following his testimony, the trial court ordered that a pro rata portion, based upon Brant's percentage ownership in the Garnishee Businesses, be garnished from the respective accounts.

Brant appealed the garnishment order to this court, and the trial court continued to determine the remaining issues.5 In the later proceedings in the trial court, Krilich argued that he was entitled to Brant's ownership interests in all of the companies with which Brant had affiliation—those businesses previously designated as the "Business Entities" in footnote 3, supra. Brant challenged this claim to his ownership interests by arguing that a charging order was the sole method by which Krilich could acquire any of Brant's interests in the LLCs.6 The trial court concluded the

835 N.E.2d 586
matter in Krilich's favor and ordered the transfer of Brant's ownership interests in the Business Entities to Krilich

We begin by noting that the extremely complex nature of this appeal is due to the simple fact that certain assumptions were made about the Garnishee Businesses and the Business Entities by Krilich and the trial court without any proof as to their validity. The most important assumption was that the Garnishee Businesses and the Business Entities were the alter ego of Brant. However, no actual evidence was ever introduced with regard to this proposition. Rather, Krilich attempted to rely upon an opinion by Mercantile7 that the accounts were Brant's accounts and Brant's admissions with respect to his ownership interests in the various businesses. Thus, our review of the proceedings below and our resolution of this case focuses upon the evidence actually introduced, or the lack thereof on important, dispositive issues, and will hopefully provide guidance to the trial court for the proper resolution of this case upon remand.

Following the domestication of the judgment and Brant's failure to satisfy it, Krilich initiated proceedings supplemental to execution. Proceedings supplemental concepts originate in equity. Stuard v. Jackson & Wickliff Auctioneers, Inc., 670 N.E.2d 953, 955 (Ind.Ct.App.1996). These proceedings allow the creditor to discover assets, reach equitable and other interests not otherwise subject to levy and sale at law, and to set aside fraudulent conveyances. Id. The procedures set forth in Trial Rule 69 and in statutes are direct descendents of these equitable remedies. Id. Equity may be invoked to prevent one party from injuring another through fraud and deceit by declaring that as done which in good conscience ought to be done. Id.

Proceedings supplemental to execution are structured by Indiana Trial Rule 69. It states:

"(E) Proceedings supplemental to execution. Notwithstanding any other statute to the contrary, proceedings supplemental to execution may be enforced by verified motion or with affidavits in the court where the judgment is rendered alleging generally:
(1) that the plaintiff owns the described judgment against the defendant;
(2) that the plaintiff has no cause to believe that levy of execution against the defendant will satisfy the judgment;
(3) that the defendant be ordered to appear before the court to
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13 practice notes
  • United States v. Witkemper, No. 1:18-cv-00873-JRS-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 31, 2021
    ...do so only to protect third parties from fraud or injustice when transacting business with aPage 46 corporate entity." Brant v. Krilich, 835 N.E.2d 582, 589 (Ind. Ct. App. 2005) (citing Lambert v. Farmers Bank, 519 N.E.2d 745, 747 (Ind. Ct. App. 1988)).107. Moreover, "the separate existence......
  • Weddell v. H20, Inc., No. 55200.
    • United States
    • Nevada Supreme Court of Nevada
    • March 1, 2012
    ...satisfaction by petitioning a court to charge the member's interest with the amount of the judgment. NRS 86.401(1); see Brant v. Krilich, 835 N.E.2d 582, 592 (Ind.Ct.App.2005) (holding “that a charging order is the only remedy for a judgment creditor against a member's interest in an LLC,” ......
  • Crider v. Crider, Nos. 53A05–1307–DR–358
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2014
    ...and an opportunity to be heard with respect to any enforcement or foreclosure of Christina's security interests. See Brant v. Krilich, 835 N.E.2d 582, 588 (Ind.Ct.App.2005) (holding LLCs were entitled to notice of proceedings supplemental instituted by a judgment creditor to attempt to obta......
  • Branham Corp. v. Boone Cnty. Utilities, LLC, Case No. 1:15-cv-00604-RLY-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 22, 2018
    ...recognized, "a charging order is the only remedy for a judgment creditor against a member's interest in an LLC." Brant v. Krilich, 835 N.E.2d 582, 592 (Ind. Ct. App. 2005). Branham has not argued that it ever obtained a charging order. Finally, Branham resurrects its arguments that the dist......
  • Request a trial to view additional results
13 cases
  • United States v. Witkemper, No. 1:18-cv-00873-JRS-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 31, 2021
    ...do so only to protect third parties from fraud or injustice when transacting business with aPage 46 corporate entity." Brant v. Krilich, 835 N.E.2d 582, 589 (Ind. Ct. App. 2005) (citing Lambert v. Farmers Bank, 519 N.E.2d 745, 747 (Ind. Ct. App. 1988)).107. Moreover, "the separate existence......
  • Weddell v. H20, Inc., No. 55200.
    • United States
    • Nevada Supreme Court of Nevada
    • March 1, 2012
    ...satisfaction by petitioning a court to charge the member's interest with the amount of the judgment. NRS 86.401(1); see Brant v. Krilich, 835 N.E.2d 582, 592 (Ind.Ct.App.2005) (holding “that a charging order is the only remedy for a judgment creditor against a member's interest in an LLC,” ......
  • Crider v. Crider, Nos. 53A05–1307–DR–358
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2014
    ...and an opportunity to be heard with respect to any enforcement or foreclosure of Christina's security interests. See Brant v. Krilich, 835 N.E.2d 582, 588 (Ind.Ct.App.2005) (holding LLCs were entitled to notice of proceedings supplemental instituted by a judgment creditor to attempt to obta......
  • Branham Corp. v. Boone Cnty. Utilities, LLC, Case No. 1:15-cv-00604-RLY-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • January 22, 2018
    ...recognized, "a charging order is the only remedy for a judgment creditor against a member's interest in an LLC." Brant v. Krilich, 835 N.E.2d 582, 592 (Ind. Ct. App. 2005). Branham has not argued that it ever obtained a charging order. Finally, Branham resurrects its arguments that the dist......
  • Request a trial to view additional results

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