Lewis v. Rex Metal Craft, Inc.

831 N.E.2d 812, 2005 Ind. App. LEXIS 1366, 2005 WL 1773968
CourtIndiana Court of Appeals
DecidedJuly 28, 2005
Docket49A02-0501-CV-11
StatusPublished
Cited by20 cases

This text of 831 N.E.2d 812 (Lewis v. Rex Metal Craft, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Rex Metal Craft, Inc., 831 N.E.2d 812, 2005 Ind. App. LEXIS 1366, 2005 WL 1773968 (Ind. Ct. App. 2005).

Opinions

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 judgment 2 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) $1,838,794.84, 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 [816]*816Time, to be applied toward the satisfaction of said judgment.

Id. at 18.

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.
(8) 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 subrait an appellee's brief. When an ap-pellee 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). Pri-ma 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.

J. Twenty-year Time Period

Lewis contends that the trial court erred by "granting Rex Metal's order of garnish[817]*817ment" 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 remedy 5 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(B); see also Ind.Code §§ 34-55-8-1 through -9.

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Lewis v. Rex Metal Craft, Inc.
831 N.E.2d 812 (Indiana Court of Appeals, 2005)

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Bluebook (online)
831 N.E.2d 812, 2005 Ind. App. LEXIS 1366, 2005 WL 1773968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-rex-metal-craft-inc-indctapp-2005.