Ronald Kibbey v. Fall Creek Associates LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 21, 2019
• Docket: 18A-PL-2223
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 21 2019, 9:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEES Ronald Kibbey Matthew L. Kelsey Martinsville, Indiana DEFUR VORAN LLP Muncie, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald Kibbey, May 21, 2019 Appellant, Court of Appeals Case No. 18A-PL-2223 v. Appeal from the Delaware Circuit Court Fall Creek Associates LLC, et al., The Honorable Marianne L. Vorhees, Appellees. Judge Trial Court Cause Nos. 18C01-1805-PL-35 18C01-1807-PL-58

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 1 of 6 Case Summary [1] Fall Creek Associates, LLC (“Fall Creek”) obtained a default judgment against

LTC Investments LLC (“LTC”) on September 4, 2018. Fall Creek obtained a

judgment against Ronald Kibbey (“Kibbey”), the sole shareholder of LTC, on

September 20, 2018. Kibbey filed interlocutory Notices of Appeal and filed a

Notice of Appeal several months after entry of the judgment against him. He

now presents the sole issue of whether he was deprived of procedural due

process when he was denied the opportunity to represent LTC pro-se. Because

Kibbey cannot represent LTC, and did not timely file an appeal of the judgment

against him personally,1 we dismiss.

Facts and Procedural History [2] On August 4, 2016, LTC and Fall Creek Associates, LLC (“Fall Creek”)

entered into a land contract whereby Fall Creek would purchase from LTC

property located at 301 N. Madison in Muncie, Indiana (“the Property”). Fall

Creek made substantial payments pursuant to the contract but was apparently

unable to obtain financing due to liens against the Property. Fall Creek ceased

making payments and Kibbey entered the Property by breaching the locks.

1 Appellate Rule 9 provides that a party may initiate an appeal by filing a Notice of Appeal within thirty days after the entry of a final judgment as noted in the chronological case summary.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 2 of 6 Allegedly, he returned to inject glue and other impediments into the locks and

to erect signs indicating his right of occupancy.

[3] Kibbey, individually and purportedly on behalf of LTC, filed a quiet title action

against Fall Creek in Cause Number 18C01-1807-PL-58 (“Cause No. 58”). On

May 8, 2018, Fall Creek filed a breach of contract claim and tort claims against

Kibbey and LLC in Cause Number 18C01-1805-PL-35 (“Cause No. 35”). The

matters were consolidated for trial, and Kibbey sought to represent himself and

LTC. The trial court advised Kibbey, orally and in writing, that LTC must be

represented by an attorney.

[4] On August 8, 2018, Fall Creek moved for a default judgment in Cause No. 35.2

On the same date, the trial court directed Kibbey to hire counsel for LTC by

August 17, 2018 and advised that failure to do so would result in a default

judgment against LTC. On August 13, 2018, Kibbey filed a “Corporate

Defendant LTC Investment Inc.’s Notice of Being Dissolved and Defendant

Ronald Kibbey’s Motion for Emergency Hearing on Funds to be Placed in

Escrow.” (Appellee’s App. Vol. II, pg. 4.) At a hearing on August 28, 2018,

the trial court again advised Kibbey that LTC must be represented by an

attorney, observing that “dissolution of a corporation does not transfer title to

2 At some point, Fall Creek moved to dismiss Cause No. 58. The trial court dismissed that cause on September 10, 2018, without prejudice.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 3 of 6 the corporation’s property.” (Tr. pg. 13.) The trial court took the motion for a

default judgment under advisement.

[5] On September 4, 2018, the trial court granted the motion for a default judgment

against LTC only and set the matter for a hearing on Kibbey’s liability and both

defendants’ damages, to be held on September 20, 2018.3 On September 18,

2018, Kibbey filed a Notice of Appeal regarding Cause No. 58 and Cause No.

35. The following day, in the trial court, he filed his “Emergency Motion to

Vacate September 20, 2018 Bench Trial and Damages Hearing,” advising the

trial court that he had filed a Notice of Appeal to challenge the September 4,

2018 default judgment. (App. Vol. II, pg. 7.) Kibbey did not appear at the

September 20 hearing. The trial court entered judgments for damages against

LTC and Kibbey.

[6] Fall Creek moved this Court to dismiss the appellate actions. On November 9,

2018, this Court issued a consolidated order and dismissed the portion of the

appeal pertaining to Cause No. 58. The Court determined that the order in

Cause No. 58 was not a final judgment because the dismissal was without

prejudice. As for Cause No. 35, the Court ordered LTC to obtain counsel

within ten days and stated that failure to comply would result in dismissal of

LTC’s appeal to challenge the September 4, 2018 order.

3 The trial court also denied Kibbey’s request for a walk-through inspection of the Property. Kibbey does not challenge this portion of the order.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 4 of 6 [7] On January 2, 2019, this Court dismissed LTC as a party on appeal, with

prejudice. Appellate proceedings continued, as to Cause 35 only, with Kibbey

as the sole party appellant. On January 10, 2019, Kibbey filed an additional

Notice of Appeal, describing the appellant as Kibbey d/b/a LTC Investments.

Discussion and Decision [8] At the August 28, 2018 hearing, Kibbey argued that he had deeded the Property

to himself and should be able to litigate by himself. On appeal, he contends

that the denial of the opportunity to represent LTC in pending litigation was a

denial of procedural process to which he was due.

[9] Indiana Code Section 34-9-1-1(a)(1) provides that a civil action may be

prosecuted or defended by a party in person. Accordingly, Kibbey had a right

to represent himself. However, subsection (c) of the foregoing statute requires

that, other than certain corporations involved in civil cases filed on a small

claims docket of a circuit or superior court, “a corporation … must appear by

[an] attorney in all cases.” Kibbey is not an attorney and has no right to

represent LTC, a corporation.

[10] On five occasions, the trial court advised Kibbey that he could not represent

LTC in litigation. Kibbey did not, as the shareholder of LTC, obtain legal

counsel. Rather, he advised the trial court that he had dissolved the corporation

and transferred the corporate interest in the Property to himself. When a

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 5 of 6 corporate dissolution takes place, the corporate identity survives for the limited

purpose of winding up corporate affairs:

A dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs[.] . . . Dissolution of a corporation does not: (1) transfer title to the corporation’s property[.]

Ind. Code § 23-1-45-5(a)-(b). LTC was incorporated and not dissolved when

the instant litigation commenced. Assuming LTC was dissolved as reflected in

the notice to the trial court, LTC continued its corporate existence as

appropriate for winding up its affairs. Again, Kibbey is not an attorney and had

no due process right to represent a corporate entity.

Conclusion [11] Kibbey had no right to represent LTC and he did not timely appeal a judgment

against himself.

[12] Dismissed.

Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2223 | May 21, 2019 Page 6 of 6