Garner v. Kempf

• Decision Date: 26 March 2018
• Docket Number: Supreme Court Case No. 82S01–1705–PL–334
• Parties: Dennis GARNER, Appellant (Plaintiff), v. Gregory S. KEMPF and Clerk of Vanderburgh County (garnishee), Appellees (Defendants).
• Court: Indiana Supreme Court

93 N.E.3d 1091

Dennis GARNER, Appellant (Plaintiff),
v.
Gregory S. KEMPF and Clerk of Vanderburgh County (garnishee), Appellees (Defendants).

Supreme Court Case No. 82S01–1705–PL–334

Supreme Court of Indiana.

Argued: June 22, 2017
FILED March 26, 2018

ATTORNEY FOR APPELLANT: Curt J. Angermeier, Evansville, Indiana

ATTORNEY FOR APPELLEE: Joseph H. Harrison, Evansville, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 82A01–1512–PL–2362

Slaughter, J.

At issue is whether Indiana law allows a judgment-creditor to garnish a cash bail bond the judgment-debtor posted in an unrelated criminal matter. The plaintiff tried to garnish the bond to satisfy his unpaid civil judgment, but the trial clerk, who was named a garnishee-defendant in the civil case, released it to the defendant's attorney. The plaintiff sought to hold the clerk liable, but the trial court ruled the bond was not subject to garnishment and found for the clerk. We disagree and reverse. The clerk who holds the bond in a criminal case is an eligible garnishee-defendant in the civil case where the judgment was entered, and the bond remains subject to the garnishment lien filed there. The only qualification is that the judgment-creditor may not recover on the bond until the criminal court releases it. Here, the clerk is liable on the bond because she distributed its proceeds before the civil court determined the plaintiff's right to them.

Factual and Procedural History

In 2013 Plaintiff, Dennis Garner, obtained a default judgment for $20,600, plus costs, against Gregory Kempf in the Vanderburgh Superior Court 7. In that same court, Garner initiated proceedings supplementary to execution to collect on his civil judgment by garnishing Kempf's bank account and tax refunds.

On July 30, 2015, while his judgment to Garner remained unsatisfied, Kempf was arrested in an unrelated criminal matter. He appeared in a different court in Vanderburgh County—Superior Court 3—and posted a $5,000 cash bond with the County Clerk. The Clerk acknowledged Kempf's cash deposit by issuing receipt number 2015–40294–CLK.

The next day, Garner initiated new proceedings supplemental in the Civil Court, where he secured the default judgment, seeking to garnish the cash bond Kempf had posted in the Criminal Court. Garner's complaint named Kempf as defendant and the Clerk as garnishee-defendant. Garner served both defendants personally but filed nothing concerning the bond in the Criminal Court.

On August 13, after Kempf had been charged with a separate felony for which he was held without bond, he moved the Criminal Court to release the $5,000 bond to his defense counsel to pay legal fees. The Criminal Court granted the motion and ordered the Clerk to issue a check payable to Kempf's lawyer "for all monies

93 N.E.3d 1094

and proceeds due under receipt number 2015–40294–CLK." Nobody notified the Criminal Court of the proceedings supplemental pending in the Civil Court.

On September 22, the Civil Court held a hearing on Garner's complaint concerning the proceedings supplemental. Garner sought a judgment against the Clerk for $5,000, arguing that once she received notice of the proceedings supplemental in the Civil Court concerning the Criminal Court bond, a judicial lien attached to that bond by operation of law and prevented her from releasing the money. The Clerk maintained she properly released the bond under the Criminal Court order because there was no final garnishment order concerning the proceedings supplemental from the Civil Court.

The Civil Court ruled against Garner, concluding that the Clerk "[was] not holding any funds of the Defendant [Kempf] subject to garnishment" and "that the Plaintiff [Garner] [was] not entitled to a judgment against the Garnishee Defendant, Vanderburgh County Clerk, in the amount of $5,000 for the release of the bond to Defendant's attorney in his criminal matter." In support of its ruling, the Civil Court relied on an internal court memorandum that the judges of the Circuit and Superior Court had sent to a prior Vanderburgh County clerk. In pertinent part, the memo instructed the clerk that bonds released in a criminal case are subject to garnishment orders and must be entered on the CCS in the criminal case.

Please be advised that when a Court releases a bond in a criminal case, the release of the bond is subject to any garnishment orders, liens, or assignments placed against the bond. In order for such a claim to be placed against the bond, a minute must be entered on the Chronological Case Summary for the criminal case[.]

The Civil Court ruled against Garner because it concluded the Clerk was not holding any funds of Kempf subject to garnishment and, contrary to the internal memo, Garner failed to notify the Criminal Court of his garnishment lien pending against Kempf in the Civil Court.

Garner appealed, and a divided Court of Appeals reversed. Garner v. Kempf , 70 N.E.3d 408 (Ind. Ct. App. 2017). The Clerk then sought transfer, which we granted, thereby vacating the Court of Appeals' opinion.

Discussion and Decision

This case involves the interplay among several statutes—those governing garnishments, proceedings supplemental, and bail bonds. See Ind. Code ch. 34–25–3; 34–55–8; 35–33–8 (2008 Repl.). We must determine not only what each statute means but also how each interacts with the others. A statute's meaning and scope are legal questions we review de novo. ESPN, Inc. v. Univ. of Notre Dame Police Dep't. , 62 N.E.3d 1192, 1195 (Ind. 2016). If a statute is clear and unambiguous, we apply its words and phrases "in their plain, ordinary, and usual sense." KS&E Sports v. Runnels , 72 N.E.3d 892, 898–99 (Ind. 2017) (citation omitted). As we interpret a statute, "we are mindful of both what it does say and what it does not say." ESPN, Inc. , 62 N.E.3d at 1195 (citations and internal quotation marks omitted). Our goal is to effectuate the statute's reasonable, commonly understood meaning.

We hold that the governing statutes permit a civil-judgment-creditor to garnish a cash bond held by a court clerk that a judgment-debtor has posted in an unrelated criminal matter, but those funds are available to the judgment-creditor only if the criminal court has ordered the bond released. Here, the Clerk should have held the cash bond posted in the criminal matter until the Civil Court determined Garner's

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right to the proceeds to satisfy his judgment. We reverse the trial court's judgment for the Clerk and remand with instructions to enter judgment for Garner.

I. Indiana law allows a judgment-creditor to garnish a cash bail bond posted by a judgment-debtor and held by a court clerk in an unrelated criminal matter.

A. Court clerks are subject to garnishment proceedings.

Proceedings supplementary to execution are remedial actions authorized by statute. I.C. ch. 34–55–8 (2008 Repl.). They enable creditors to enforce money judgments against non-paying debtors. Prime Mortg. USA , Inc. v. Nichols , 885 N.E.2d 628, 668 (Ind. Ct. App. 2008). Because these proceedings merely continue the underlying suit, creditors must initiate them under the same case number and in the same court that issued the civil judgment. Id. See also Ind. Trial Rule 69(E). A court's sole objective in conducting proceedings supplemental is "determining whether an asset is in the judgment debtor's possession or subject to the judgment debtor's control and can be attached to satisfy the judgment." Prime Mortg. USA , 885 N.E.2d at 668 (quoting State Farm Mut. Auto Ins. Co. v. Estep , 873 N.E.2d 1021, 1029 (Ind. 2007) (Boehm, J., concurring in part and dissenting in part) ). Cf. Bowyer Excavating, Inc. v. Commissioner, Indiana Dept. of Environmental Management , 671 N.E.2d 180, 184 (Ind. Ct. App. 1996) (finding "any technical distinction between" attachment and garnishment "irrelevant" because both procedures seek judgment-debtor's property, except attachment applies when debtor holds or controls his property and garnishment applies when third party possesses or controls defendant's property).

Garnishment is one option for satisfying a judgment through proceedings supplemental. See Trial Rule 69(E)(4) ; Freidline v. Thomalla , 852 N.E.2d 17, 20 (Ind. Ct. App. 2006). Garnishment is authorized by statute, I.C. ch. 34–25–3 (2008 Repl.), and applies when a third party holds or controls the judgment-debtor's property. If a judgment-creditor believes a third party possesses or manages property of the debtor subject to execution, the creditor must name the third party as a garnishee-defendant in the complaint for proceedings supplemental and serve both the debtor-defendant and garnishee-defendant with a summons to appear in court to answer the complaint. T.R. 69(E)(4) ; I.C. §§ 34–25–3–2(a), (c) (2008 Repl.).

Indiana's garnishment statute specifically subjects "clerks of the circuit and superior courts" to garnishment to the extent they have "money or choses in action" belonging to a judgment-debtor "at the time of service of the garnishee process". Id . §§ 34–25–3–1(a)(1)(A), 1(b) (2008 Repl.). Trial-court clerks receive no special treatment or consideration as garnishee-defendants, but are treated "in the same manner as ...other...