Schwedland v. Bachman
| Decision Date | 31 August 1987 |
| Docket Number | No. 29A02-8610-CV-352,29A02-8610-CV-352 |
| Parties | Ronald P. SCHWEDLAND, Charlotte G. Schwedland and Village Square Knits, Inc., Appellants (Defendants), v. Charles A. BACHMAN and Donna M. Bachman, d/b/a Village Square Knits, Appellees (Plaintiffs). |
| Court | Indiana Appellate Court |
Jerry Williams, John E. Taylor, Indianapolis, for appellants.
Thomas D. Mantel, Richard L. Darst, Mantel, Mantel & Reiswerg, Indianapolis, for appellees.
The appellants-defendants Ronald P. Schwedland, Charlotte G. Schwedland, and Village Square Knits, Inc. [hereinafter collectively referred to as the Schwedlands] bring this interlocutory appeal under Ind.Rules of Procedure, Appellate Rule 4(B)(1), claiming that the trial court's order authorizing the appellees-plaintiffs Charles A. Bachman and Donna M. Bachman d/b/a Village Square Knits [hereinafter collectively referred to as the Bachmans] to deposit a tendered check in the amount of $18,500.00 with the court pending a final decision on the merits, is contrary to law.
We affirm.
The relevant facts are that the Schwedlands signed a promissory note on October 20, 1976, for the purchase of the Bachmans' unincorporated business, whereby the Schwedlands promised to pay the Bachmans, in installments, $184,000.00 plus interest. The Schwedlands made their monthly payments until June 1, 1980, after which the payments ceased. The Bachmans filed a complaint on January 5, 1984, asking for the unpaid balance of approximately $105,833.00 plus interest, attorneys fees, and costs.
In April of 1984, the parties' attorneys discussed settlement and purportedly reached an oral settlement agreement, with the Schwedlands agreeing to pay the Bachmans $18,500.00 from the proceeds of the sale of their house in return for dismissal of the Bachman's suit against them. The parties now dispute the agreed time period in which the house had to be sold and the proceeds turned over to the Bachmans. Nonetheless, a written settlement agreement was never signed by the parties.
On December 3, 1985, the Bachmans filed an amended complaint requesting prejudgment attachment of the Schwedlands's assets because the Schwedlands were no longer residents of Indiana. On January 21, 1986, the trial court entered an order of attachment as follows:
"ORDER OF ATTACHMENT AND APPROVAL OF BOND
This cause comes before the Court on plaintiffs' Amended Complaint. The plaintiffs have submitted a written undertaking in the amount of One Hundred Thirty-Three Thousand Dollars ($133,000.00). Having investigated the truth of the averments, the Court now finds that:
1. Plaintiffs' Amended Complaint states a claim for relief.
2. There is probable cause to believe that the defendants Schwedland [sic] have left the State of Indiana, that the defendant Village Square Knits, Inc. has no assets and that unless the Court orders prejudgment attachment, plaintiffs will be unable to enforce any judgment which may be granted by this Court.
3. Attachment without notice to defendants appears necessary on the ground that prior notice might well result in the disposition and/or transfer of the real estate and improvements, being the only assets available to satisfy plaintiffs' claim.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that:
1. The Sheriff of Hamilton County, Indiana, take those steps necessary to cause the Sheriff of Marion County, Indiana, to seize and hold the property of defendants not exempt from execution or so much thereof as will satisfy plaintiffs' claim for One Hundred Thirty-Two Thousand Eight Hundred Four Dollars and Eighty-One Cents ($132,804.81) plus reasonable attorneys' fees Lots Numbered 67 and 68 in Wynnedale, now in the Town of Wynnedale, in Marion County, Indiana, as per plat thereof, recorded in Plat Book 20, pages 27 and 28, in the Office of the Recorder of Marion County, Indiana,
more commonly known and described as 2125 Wilshire Road, Indianapolis, Indiana, pending the trial and determination of this action.
2. In executing this Order, the Sheriff of Hamilton County shall cause the Sheriff of Marion County to take first defendants' personal property; if enough thereof is not found to satisfy plaintiffs' claim and costs of this action, then their real estate.
3. The Sheriff of Hamilton County shall cause the Sheriff of Marion County to proceed, with the assistance of a disinterested and credible householder of the county, and make an inventory and appraisement of defendants' nonexempt property.
4. The Sheriff of Hamilton County shall cause the Sheriff of Marion County to serve a copy of this Order upon each defendant in the manner required by law and shall make his return when the Order has been executed or discharged. Defendants may obtain redelivery of the property by filing a written undertaking, in the amount of the appraised value of such property. Defendants may discharge the attachment by filing a written undertaking with sufficient surety to be approved by the Court to the effect that defendants will appear in the action and perform the judgment of the Court.
This Order of Attachment binds the defendants' property in the County subject to execution and becomes a lien thereon from time of its delivery to the Sheriff. This lien serves as constructive notice to third parties only as stated in Indiana Rule of Trial Procedure Sec. 63.1(C) and 64(B)(6)."
The Schwedlands finally sold their home in June, 1986, and voluntarily sent the Bachmans a check in the amount of $18,500.00 presumably in accordance with the oral settlement agreement. The Schwedlands assumed the Bachmans would then dismiss the lawsuit. The Bachmans did not dismiss the suit because they had not received the check within what they perceived as the agreed time period. The Bachmans retained the check, however, and on August 29, 1986, they filed a petition for authority to deposit the payment into court.
On September 3, 1986, the trial court granted the Bachmans' request:
"ORDER
COME NOW the Plaintiffs in the above-captioned action with counsel, and file herein their Petition For Authority To Deposit Payment Into Court, which said petition is in the words and figures as follows:
(H.I.)
And the court have examined such petition and otherwise duly advised in the premises, now finds that the petition should be approved.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petitioners shall be and they hereby are authorized and ordered to endorse over to the Clerk of this court the check presently held by them in the amount of Eighteen Thousand Five Hundred Dollars ($18,500.00).
IT IS FURTHER ORDERED that such check shall be held by the Clerk of this court pending final adjudication on the merits and thereafter to be disbursed according to Order of this court.
IT IS FINALLY ORDERED that the Plaintiffs' action in tendering the above-described check shall be without prejudice, shall not be construed as an agreement to settlement, shall not be construed as a stipulation to dismiss, nor in any way whatsoever be considered in determining the rights and liabilities of any party to this action."
The trial court subsequently denied the Schwedlands' motion to reconsider the order.
At that time, the Schwedlands initiated this interlocutory appeal.
Initially, we address the following issue raised by the Bachmans:
1. Does this court have jurisdiction to decide this appeal under A.R. 4(B)(1), which authorizes interlocutory appeals from orders "for the payment of money?"
The Schwedlands have raised four issues, which we combine and restate as:
2. Was the trial court's order, authorizing the Bachmans to deposit the check into court, contrary to law?
ISSUE ONE --Does this court have jurisdiction to decide this appeal under A.R. 4(B)(1), which authorizes interlocutory appeals from orders "for the payment of money?"
PARTIES' CONTENTIONS --The Bachmans argue that no jurisdiction exists for this appeal under A.R. 4(B)(1) because the Schwedlands were not ordered to pay any money, and because the money paid to the Bachmans was already delivered by the Schwedlands prior to the court's order.
The Schwedlands answer in their reply brief that the effect of the trial court's order was to prevent the Schwedlands from the use of their money pending trial on the merits, and thus they, in effect, were ordered to pay money into court.
CONCLUSION --The trial court's order was an appealable interlocutory order.
The Schwedlands bring this appeal under A.R. 4(B)(1), which provides for appeals from interlocutory orders "for the payment of money." See Cook v. Citizens Nat'l Bank (1881), 73 Ind. 256; State v. Kuespert (1981), Ind.App., 425 N.E.2d 229, trans. denied.
In past cases allowing an interlocutory appeal for the payment of money, the trial court has directly ordered one of the parties to pay a sum to another party or into court. Welling v. Welling (1971), 257 Ind. 120, 272 N.E.2d 598 (); Apartment Properties, Inc. v. Luley (1969), 252 Ind. 205, 247 N.E.2d 74 (); Bahre v. Bahre (1964), 245 Ind. 522, 198 N.E.2d 751 (); Brown v. Brown (1945), 223 Ind. 463, 61 N.E.2d 645 (); Rost v. International Elec. Co. (1925), 201 Ind. 568, 146 N.E. 821 (); Pounds v. Chatham (1884), 96 Ind. 342 (); Cook, supra (...
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