Charles W. Florance v. American Express Centurion Bank (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 19A-CC-854
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 24 2019, 10:17 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Charles W. Florance Charlie W. Gordon South Bend, Indiana Lloyd & McDaniel, PLC Louisville, Kentucky

IN THE COURT OF APPEALS OF INDIANA

Charles W. Florance, September 24, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CC-854 v. Appeal from the St. Joseph Superior Court American Express The Honorable Margot F. Reagan, Centurion Bank, Judge Appellee-Plaintiff Trial Court Cause No. 71D04-1802-CC-326

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 1 of 5 [1] In February 2018, American Express Centurion Bank (American Express) filed

a complaint against Charles Florance, seeking payment of $22,837.45.1

Florance and counsel for American Express reached an agreement to settle the

case, and their agreement was memorialized on the record during a January 9,

2019, hearing:

Bank: . . . Mr. Florance has agreed to pay in full settlement a total of $13,500. Terms being $750 a month times 18 months, starting sometime this month. . . .

***

Bank: Upon a default situation and an affidavit from my office, we would then pursue the remaining balance in full that was pled in the original complaint, minus any payments made.

The total amount in the complaint, which is still due through today is $22,837.45. But again, we’re willing to settle for the $13,500 as settlement in full.

Florance: And I think if that’s contingient [sic] on a dismissal with prejudice once the 18 months are complete and the payments are all made?

1 The complaint is not included in the record on appeal, but we infer that it related to debt owed by Florance to American Express on a credit account.

Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 2 of 5 Bank: Certainly.

Florance: I’m 100 percent in agreement.

Tr. Vol. II p. 2-3.

[2] On January 28, 2019, American Express sent an Agreed Judgment to Florance.

The Agreed Judgment provided as follows:

1. Plaintiff shall have Judgment against the Defendant for the sum of $22,837.45 . . . .

2. It is further agreed that [if] Defendant pays $13,500.00 to Plaintiff at the rate of $750.00 each month . . . until the $13,500.00 is paid in full, Plaintiff shall not issue execution on this Judgment. . . .

3. It is further agreed that if the Defendant defaults from the payment schedule set forth in paragraph 2, Plaintiff shall be free to issue execution on this Judgment forthwith.

Appellant’s App. Vol. II p. 3. Florance did not sign the Agreed Judgment, but

the trial court signed and entered it on March 14, 2019. Florance now appeals.2

[3] Florance argues that the language of the Agreed Judgment is inconsistent with

the agreement articulated at the January 2019 hearing. We disagree. The

2 American Express notes that agreed judgments are not appealable. See Gallops v. Shambaugh Kast Beck & Williams, LLP, 56 N.E.3d 59, 62-64 (Ind. Ct. App. 2016) (explaining that an agreed judgment is a consent decree rather than a judicial determination and that its entry is a ministerial act by the trial court and not appealable). We agree, but choose to address Florance’s arguments briefly in an attempt to offer clarity.

Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 3 of 5 Agreed Judgment does, indeed, include the full amount owed by Florance to

American Express, preserving the bank’s right to execute that judgment in the

event of a default. It also, however, indicates that if Florance makes monthly

payments of $750 until he reaches the total amount of $13,500, then American

Express will not execute the full amount of the judgment.

[4] Florance appears to believe, mistakenly, that American Express agreed to

dismiss its complaint with prejudice immediately. While that phraseology was

used at the hearing (by Florance), it is apparent that the parties intended to

enter a judgment, which would act as security for the settlement agreement;

then, if and when the sum of Florance’s monthly payments totals $13,500,

American Express will vacate the judgment.

[5] In other words, if Florance makes the agreed monthly payments of $750 for 18

months, reaching the amount of $13,500, then American Express will vacate

the judgment and forego pursuit of Florance for the remaining balance.

Therefore, the end result is precisely in line with the parties’ agreement.

[6] We note that the language of the Agreed Judgment does not conform to the

agreement reached by the parties during the hearing. Specifically, American

Express agreed that the judgment would be dismissed with prejudice—or, more

accurately, vacated—if and when Florance’s payments total $13,500. Tr. Vol.

II p. 2-3. Therefore, we remand with instructions to enter an order requiring

American Express to file a motion to vacate the Agreed Judgment if and when

Florance’s timely monthly payments total $13,500. The order should require

Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 4 of 5 that the motion to vacate be filed within fourteen days of the day on which

Florance’s payments total $13,500.

[7] The judgment of the trial court is affirmed and remanded with instructions.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 5 of 5