Lewis v. Rex Metal Craft, Inc.

• Decision Date: 28 July 2005
• Docket Number: No. 49A02-0501-CV-11.,49A02-0501-CV-11.
• Citation: 831 N.E.2d 812
• Parties: Thomas N. LEWIS, Appellant-Defendant, v. REX METAL CRAFT, INC., Appellee-Plaintiff.
• Court: Indiana Supreme Court

831 N.E.2d 812

Thomas N. LEWIS, Appellant-Defendant, v. REX METAL CRAFT, INC., Appellee-Plaintiff.

No. 49A02-0501-CV-11.

Court of Appeals of Indiana.

July 28, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas N. Lewis, Sunman, Appellant Pro Se.

OPINION

CRONE, Judge.

Case Summary

Thomas N. Lewis appeals the denial of his motion to invalidate execution of judgment and rescind garnishment order. We affirm.

Issues

Lewis raises two issues, which we restate as follows:

I. Whether the trial court appropriately granted garnishment for a judgment that is over twenty years old; and

II. Whether Rex Metal Craft, Inc. ("Rex Metal") met applicable notice and/or leave requirements for garnishment.

Facts and Procedural History

From what we can discern,¹ the facts are as follows. Rex Metal was granted a judgment² against Lewis on December 14, 1982. On February 11, 1992, the court renewed the judgment for an additional ten years, "which ten-year period shall commence to run on December 14, 1992." Appellant's Appendix at 5. On June 8, 2001, the court renewed Rex Metal's judgment "for an additional ten-year period commencing December 14, 2002." Id. at 6.

On January 20, 2004, in a motion for proceedings supplemental, Rex Metal asserted that it "owns a judgment obtained in this court against [Lewis] on December 14, 1982, for the sum of $511,245.55, and costs." Id. at 7. The motion named Heritage Community Bank and Bank of America as garnishee defendants. In a motion to dismiss Rex Metal's proceedings supplemental action, Lewis argued that Indiana Code Section 34-11-2-12 barred execution of the judgment.

On May 18, 2004, the court issued a garnishment order requiring

that the following property of [Lewis], in the hands of the garnishee defendant, FCN BANK, N.A.,³ subject to execution to wit: the lesser of (1) $1,333,794.84, the unpaid amount of the judgment due from the garnishee defendant, FCN BANK, N.A., to [Lewis], as specified in the Notice of Garnishment Proceedings, or (2) the balance in the account on the date and at the time the garnishee defendant received the plaintiff's Notice of Garnishment Proceedings, Summons and Order to Answer Interrogatories, Notice of Hearing and Interrogatories ["Service Time"], which shall be applied toward the satisfaction of said judgment.

AND IT IS FURTHER, ORDERED, ADJUDGED AND DECREED that said garnishee defendant, FCN BANK, N.A., be and it is hereby ordered and directed to pay to RUBIN & LEVIN, P.C. . . . forthwith the lesser of (1) the unpaid amount of the judgment or (2) the balance in the account at the Service Time, to be applied toward the satisfaction of said judgment.

Id. at 13.

On May 27, 2004, Lewis filed his "Supplement of Points of Fact to Defendant's Motion to Dismiss and Sworn Statement of Residence," in which he stressed: "The renewal or extensions of the judgment period is NOT the issue. The ONLY issue in [Lewis's] Motion to Dismiss, is the EXECUTION of the judgment. Indiana Code Section 34-11-2-12 clearly mandates a twenty (20) year statute of limitations for execution of a money judgment." Id. at 14. Rex Metal responded that its proceedings supplemental was filed on January 20, 2004, well within a twenty-year period beginning on December 14, 2002. Further, Rex Metal maintained that the presumption that a judgment is satisfied after a period of twenty years is rebuttable.

On June 1, 2004, Lewis filed a "Motion to Invalidate Execution of Judgment and to Rescind Garnishment Order." Id. at 18. Rex Metal responded. On June 28, 2004, the court denied Lewis's motion to dismiss the proceedings supplemental. The court continued the motion for proceedings supplemental indefinitely. See id. at 25.

On July 27, 2004, Lewis filed a notice of appeal of the order denying his motion to dismiss. A panel of this court dismissed Lewis's appeal without prejudice, explaining:

(1) A proceeding supplemental involves the right of the appellee to levy on the property of the judgment defendant. See McClure Oil Corp. v. Whiteford Truck Lines, 627 N.E.2d 1323, 1325 (Ind.Ct.App.1994).

(2) This issue has yet to be decided by the trial court.

(3) The trial court's denial of Appellant's motion to dismiss the proceeding supplemental simply had the effect of allowing Appellee's proceeding supplemental to move forward. The denial of the motion to dismiss did not dispose of any issues between the parties to the action.

(4) As no final, appealable order has been issued in this cause, this Court is without jurisdiction to entertain this appeal.

Id. at 26.

On December 7, 2004, Lewis filed a "Motion for a Court Order and Judgment on Defendant's Open and Pending Motion Filed June 1, 2004." Id. at 27. Two days later, the court issued an order denying Lewis's "Motion to Invalidate Execution of Judgment and to Rescind Garnishment Order." Id. at 29.

Discussion and Decision

At the outset, we note: "Indiana law is well settled that a litigant who chooses to proceed pro se will be held to the same established rules of procedure as trained legal counsel." Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind.Ct.App.1995). Thus, we must hold Lewis to the same standards as an attorney. We further note that Rex Metal has elected not to submit an appellee's brief. When an appellee does not submit a brief, an appellant may prevail by making a prima facie case of error, a less stringent standard. Town and Country Ford, Inc. v. Busch, 709 N.E.2d 1030, 1032 (Ind.Ct.App.1999). Prima facie, in this context, is defined as "at first sight, on first appearance, or on the face of it." Id. "The prima facie error rule protects this court and relieves it from the burden of controverting arguments advanced for reversal, a duty which properly remains with counsel for the appellee." Id.

I. Twenty-year Time Period

Lewis contends that the trial court erred by "granting Rex Metal's order of garnishment" and "by its denial of Lewis's motion to invalidate execution of judgment, which is barred by the statute of limitations." Appellant's Br. at 3. Specifically, he notes that the January 20, 2004 motion for proceedings supplemental, which he terms a "motion for execution" of a 1982 money judgment, should have been barred by the twenty-year statute of limitation found in Indiana Code Section 34-11-2-12.⁴ For support, he cites Arend v. Etsler, 737 N.E.2d 1173 (Ind.Ct.App.2000).

We first observe that there seems to be some confusion regarding execution and the equitable remedy⁵ of proceedings supplemental. Proceedings supplemental to execution are enforced by verified motion alleging that "the plaintiff owns the described judgment against the defendant" and that the "plaintiff has no cause to believe that levy of execution against the defendant will satisfy the judgment[.]" Ind. Trial Rule 69(E); see also Ind.Code §§ 34-55-8-1 through -9. The only issue presented in proceedings supplemental is that of affording the judgment-creditor relief to which she is entitled under the terms of the judgment. Nat'l Mut. Ins. Co. v. Sparks, 647 N.E.2d 375, 376-77 (Ind.Ct.App.1995), trans. denied.

Proceedings supplemental are a continuation of the underlying claim on the merits — not an independent action. Koors v. Great Southwest Fire Ins. Co., 538 N.E.2d 259, 260 (Ind.Ct.App.1989). As such, proceedings supplemental are initiated under the same cause number in the same court that entered judgment against the defendant. Kirk v. Monroe County Tire, 585 N.E.2d 1366, 1368 (Ind.Ct.App.1992). The validity of the underlying judgment has already been determined; thus, proceedings supplemental may progress without a showing that execution has commenced or would be unavailing. Arend, 737 N.E.2d at 1175 (citing Borgman, 681 N.E.2d at 217).

The proceedings are a nullity absent a valid judgment. Washburn v. Tippecanoe Office of Family and Children, 726 N.E.2d 361, 363 (Ind.Ct.App.2000). Thus, a reversal of the underlying judgment nullifies the proceeding supplemental. Evansville Garage Builders v. Shrode, 720 N.E.2d 1273, 1278 (Ind.Ct.App.1999), trans. denied. Even though proceedings supplemental are an extension of the underlying action, the parties cannot during their course collaterally attack the underlying judgment. De Later v. Hudak, 399 N.E.2d 832 (Ind.Ct.App.1980).

At a proceeding supplemental, it is the duty of the judgment debtor to pay the judgment or come forward with property so that execution may proceed. Generally, three types of relief are available to a judgment creditor through a proceeding supplemental: 1) the judgment debtor is required to appear before the trial court and be examined as to available property; 2) the judgment debtor is required to apply particular property to the satisfaction of the judgment; and 3) a third-party garnishee is joined as a party and is required to answer as to non-exempt property held by the garnishee for the debtor or an obligation owing from the third party to the debtor. See HARVEY, 4A IND. PRACTICE 18-23 (2003). Property subject to proceedings supplemental includes both real and personal property. Arend, 737 N.E.2d at 1176.

It has been stated that Indiana Code Section 34-11-2-12, entitled, "Satisfaction of Judgment After Expiration of Twenty Years," is applicable to money judgments. See id; see also Needham v. Suess, 577 N.E.2d 965, 967 (Ind.Ct.App.1991) (noting how the time frame for a judgment lien is different than that of a judgment). According to Indiana Code Section 34-11-2-12, "Every judgment and decree of any court of record of the United States, of Indiana, or of any other state shall be considered satisfied after the expiration of twenty (20) years." Despite being listed in a chapter entitled, "Specific Statutes of Limitation," this section seems unlike a standard statute of limitations. But see Arend, 737 N.E.2d at 1176 (referring to Ind.Code § 34-11-2-12 as a statute of limitations). Indeed, Indiana Code Section 34-11-2-12 does not contain the same language as the...