Phyllis I. Maschino v. Tex Anna Wayt and Edward Wayt (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 20 2020, 10:12 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Jason M. Smith
Seymour, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Phyllis I. Maschino, March 20, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-2203
v. Appeal from the Jackson Superior
Court
Tex Anna Wayt and Edward The Honorable AmyMarie Travis,
Wayt, Judge
Appellees-Defendants Trial Court Cause No.
36D01-1903-PL-10
Altice, Judge.
Case Summary
[1] Phyllis I. Maschino filed a complaint to foreclose on a judicial lien in an action
separate from that which gave rise to the judicial lien. Tex and Edward Wayt
(collectively, the Wayts) filed a motion to dismiss Maschino’s complaint
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pursuant to Ind. Trial Rule 12(B)(8). The trial court granted the motion to
dismiss, finding that such matter should be addressed in the cause giving rise to
the judgment lien. Maschino appeals, arguing that the trial court erred in
dismissing her complaint for foreclosure of a judicial lien.
[2] We affirm.
Facts & Procedural History
[3] In January 2017, under Cause No. 36D01-1208-CC-177 (CC-177), Maschino
secured a judgment against the Wayts in the amount of $83,000 (the 2017
Judgment). 1 At that time, the Wayts owned a residence in Seymour, Indiana,
but had no other significant assets. Maschino did not take any action to collect
on the judgment during the pendency of the Wayts’ appeal. After the 2017
Judgment was affirmed, Maschino learned that Tex was the beneficiary of one-
sixth of an estate and that her share was valued at approximately $100,000.
Rather than collecting on the judgment through foreclosure on the Wayts’
home, Maschino chose to wait until the conclusion of the estate administration
and seek satisfaction of the 2017 Judgment from Tex’s inheritance. Tex
received her distribution of the estate, but thereafter made no attempt to pay or
settle the 2017 Judgment. Tex testified at a January 2019 proceedings
1
The Wayts appealed to this court, which upheld the judgment in a memorandum decision on December 29,
2017. Wayt v. Maschino, No. 36A05-1702-CC-335 (Ind. Ct. App. Dec. 29, 2017).
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supplemental hearing in under CC-177 that she had already transferred the
entire amount of funds from her inheritance to her daughter.
[4] On March 19, 2019, Maschino filed a complaint under Cause No. 36D01-1903-
PL-10 (PL-10), seeking to collect on the 2017 Judgment through foreclosure of
the judicial lien on the Wayts’ real estate and asserting claims for treble
damages and fraudulent transfer. On May 24, 2019, the Wayts filed a motion
to dismiss PL-10 pursuant to T.R. 12(B)(8), claiming that the same action was
pending under CC-17. Maschino filed a response on June 14, 2019. The trial
court held a hearing on the motion to dismiss on August 5, 2019.
[5] On August 26, 2019, the trial court granted the Wayts’ motion to dismiss as to
Maschino’s claim for foreclosure, finding that such matter was to be addressed
under CC-177. The court found that Maschino’s claims for additional
damages, however, were properly filed. On September 4, 2019, Maschino filed
a Notice of Voluntary Dismissal Without Prejudice of her remaining claims
under PL-10, which the trial court accepted the same day. Maschino now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
[6] We begin by noting that the Wayts have not filed an appellate brief. In such
case, we will not undertake the burden of developing arguments for them.
Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we apply a
less stringent standard of review and will reverse upon a showing of prima facie
error, which is error “at first sight, on first appearance, or on the face of it.”
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Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). However, to
determine whether reversal is required, we are still obligated to correctly apply
the law to the facts in the record. Jenkins, 17 N.E.3d at 352.
[7] Ind. Trial Rule 12(B)(8) permits the dismissal of an action when “[t]he same
action [is] pending in another state court of this state.” T.R. 12(B)(8)
implements the general principle that, when an action is pending in an Indiana
court, other Indiana courts must defer to that court’s authority over the case.
See LTL Truck Serv., L.L.C. v. Safeguard, Inc., 817 N.E.2d 664, 671 (Ind. Ct. App.
2004). The rule applies where the parties, subject matter, and remedies are
precisely the same, and it also applies when they are only substantially the
same. Id. Our review of the trial court’s dismissal under T.R. 12(B)(8) is de
novo. See Kentner v. Ind. Pub. Employers’ Plan, Inc., 852 N.E.2d 565, 570 (Ind.
Ct. App. 2006), trans. denied.
[8] On appeal, Maschino argues that “all foreclosure actions on judgment liens
must be filed in a new and separate matter from the matter in which the
judgment lien was created” and that the trial court’s dismissal of her complaint
for foreclosure of her judgment lien has denied her the right to foreclose
altogether. Appellant’s Brief at 9 (emphasis supplied). In support of her
argument, Maschino directs us to Arend v. Etsler, 797 N.E.2d 1173 (Ind. Ct.
App. 2000), as well as Ind. Trial Rules 69(C) and 69(E).
[9] Here, Maschino secured a money judgment against the Wayts. A money
judgment becomes a lien on the debtor’s real property when the judgment is
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recorded in the judgment docket in the county where the realty held by the
debtor is located. 2 Needham v. Suess, 577 N.E.2d 965, 967 (Ind. Ct. App. 1991);
see also Ind. Code § 34-55-9-2. To collect final judgment, a judgment debtor can
enforce a judgment lien or execute the money judgment via a proceeding
supplemental. Arend, 737 N.E.2d at 1174.
[10] As this court observed in Arend,
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.
Id. at 1175-76 (citing Harvey, 4 Ind. Practice 470 (1991)). A proceeding
supplemental is a continuation of the underlying claim, filed in the same court
where the judgment was entered, under the same cause number, and serves to
enforce a judgment. Keaton v. Ft. Wayne Neurosurgery, 780 N.E.2d 1183, 1185
(Ind. Ct. App. 2003); Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1229 (Ind.
Ct. App. 1999); see also T.R. 69(E) (stating that “proceedings supplemental to
2
At the hearing on their motion to dismiss, the Wayts did not challenge the existence of Maschino’s
judgment lien.
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execution may be enforced by verified motion or with affidavits in the court
where the judgment is rendered” if certain allegations are presented).
[11] Maschino argues, however, that pursuant to T.R. 69(C), she was required, or at
the very least had the option, to file her foreclosure action under a cause
separate from the underlying judgment. T.R. 69(C) provides that “judicial
foreclosure of all liens upon real estate shall be conducted under the same rules
and the same procedures applicable to foreclosure of mortgages upon real
estate.” Contrary to Maschino’s argument, T.R. 69(C) does not require that
foreclosure of a judicial lien be brought as a separate action; rather, it simply
provides that certain rules and procedures be followed.
[12] Maschino relies on Arend as support for her argument that to foreclose on a
judicial lien, a separate action is required. 3 Although the Arend court noted that
enforcement of a judgment lien is a “separate and distinct action” from
execution of a money judgment, the court did not hold, as Maschino suggests,
that enforcement of a judgment lien must be through a proceeding separate
from the underlying judgment. Id. Simply put, this case does not support
Maschino’s argument.
3
Maschino also cites to Hinds v. McNair, 129 N.E.2d 553 (Ind. 1955), wherein the Supreme Court, in
addressing a mootness argument based on expiration of a statute of limitation, distinguished between a lien
of judgment and a lien of execution. In so doing, the Court noted that “[p]roceedings supplemental are
brought solely for the purpose of subjecting property allegedly belonging to a judgment debtor to the
satisfaction of the judgment debt, not to a lien.” Hinds, 129 N.E.2d at 558. Hinds does not support
Maschino’s argument.
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[13] We agree that enforcement of a judgment lien and execution of the money
judgment are separate and distinct. They are, however, both appropriate
avenues by which to satisfy a final judgment. The proper procedural
mechanism to enforce a judgment is through a proceeding supplemental in the
cause where the underlying judgment was entered. Indeed, as the Arend court
noted, “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.” See Arend, 737 N.E.2d at 1175 (quoting Nat’l Mut. Ins. Co. v.
Sparks, 647 N.E.2d 375, 376-77 (Ind. Ct. App. 1995), trans. denied).
[14] We are obligated to correctly apply the law to the facts in the record. Jenkins,
17 N.E.3d at 352. Here, Maschino secured a money judgment that became a
judgment lien against the Wayt’s property under CC-177. T.R. 69(C) and case
law regarding proceedings supplemental lead us to conclude that to collect on
her final judgment, Maschino can either foreclose on the judgment lien or
execute the money judgment and the way she must do so is through
proceedings supplemental filed under CC-177. We therefore conclude that
dismissal of Maschino’s complaint filed under PL-10 was proper.
[15] Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
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