Townsend H. Porter, Jr., Townsend Porter Revocable Trust, and Brian H. Merritt v. 1st Source Bank ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
Attorney for Townsend H. Porter, Jr., and
Townsend Porter Revocable Trust: JEFFREY A. JOHNSON
EDWARD P. BENCHIK TREVOR Q. GASPER
Shedlak & Benchik Law Firm LLP May Oberfell Lorbert
South Bend, Indiana Mishawaka, Indiana
FILED
Dec 31 2012, 10:55 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
TOWNSEND H. PORTER, JR., )
TOWNSEND PORTER REVOCABLE TRUST )
and BRIAN H. MERRITT, )
)
Appellants-Defendants, )
)
vs. ) No. 71A03-1205-CC-236
)
1ST SOURCE BANK, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Michael P. Scopelitis, Judge
Cause No. 71D07-1102-CC-69
December 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Townsend Porter, Jr.1 appeals the trial court’s denial of his exemption from
proceedings supplemental filed by 1st Source in an effort to collect a debt owed by Porter.
We affirm.
FACTS AND PROCEDURAL HISTORY
On November 21, 2011, the trial court granted summary judgment in favor of 1st
Source and entered judgment jointly and severally against Porter, the Townsend Porter, Jr.
Revocable Trust, and Brian H. Merritt for $5,319,544.90, which is the amount owed for an
airplane purchased but later repossessed, plus prejudgment interest and attorneys’ fees. In an
effort to collect on the amount, 1st Source filed proceedings supplemental against six banks.
Bank of America replied to the proceedings supplemental, indicating Porter held an account
jointly with his wife, Beverly, at Bank of America.
On January 12, 2012, Bank of America froze Porter’s account and disbursed the
balance of the account, $34,261.13, to 1st Source. On February 27, Porter filed a claim for
exemption of the proceeds in the account, and the trial court conducted hearings on March 2
and March 19. Porter and Beverly did not attend either hearing; instead they proffered
affidavits claiming the Bank of America account was exempt from seizure by 1st Source via
the proceedings supplemental.
1st Source filed a motion to strike the affidavits. The trial court granted the motion
finding, “I.C. 34-55-8-9 requires that parties appear and answer, without further pleadings,
1
Merritt did not participate in this appeal or in the proceedings supplemental; however, a party of record at
trial is a party on appeal and thus we include his name here. See Indiana Appellate Rule 17(A) (“A party
of record in the trial court . . . shall be a party on appeal.”).
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upon the oral examination and testimony of parties and witnesses. The defendant Townsend
H. Porter, Jr. has not, as of the date of this order, appeared and answered as required by the
court’s February 23, 2012 order.” (App. at 104.) On April 25, the trial court denied Porter’s
exemption claim and ordered the funds from the Bank of America account to remain with 1st
Source.
DISCUSSION AND DECISION
Porter appeals from a negative judgment, and thus we will not reverse the trial court’s
decision unless it is contrary to law. Id. We consider only the evidence favorable to the trial
court’s decision and make all reasonable inferences therefrom in favor of the decision. Id.
We will reverse “only where the evidence lead to but one conclusion, and the trial court
reached the opposite conclusion.” Fitzgerald v. Cummings, 792 N.E.2d 611, 614 (Ind. Ct.
App. 2003).
A proceedings supplemental is a narrowly defined as:
If an execution against the property of the judgment debtor or any of several
debtors in the same judgment is returned unsatisfied, in whole or in part, the
judgment creditor, after the return is made, is entitled to an order to be issued
by any circuit, superior, or city court in the jurisdiction to which the execution
issued that requires the judgment debtor to appear before the court to answer
concerning the judgment debtor’s property, income, and profits within the
county to which the execution was issued.
Ind. Code § 34-55-8-1. Trial courts have broad discretion in conducting proceedings
supplemental, and we “will not disturb a trial court’s judgment regarding a proceedings
supplemental unless the record does not provide sufficient support for any theory on which
the judgment may be sustained.” Prime Mort. USA, Inc. v. Nichols, 885 N.E.2d 628, 669
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(Ind. Ct. App. 2008). While 1st Source had the initial burden of demonstrating the bank
account titled in Porter’s name was subject to execution, the burden shifted to Porter to raise
and demonstrate he had an exemption. Id.Regarding proceedings supplemental, Ind. Code § 34-55-8-9 states: “All proceedings
under this chapter, after the order has been made requiring parties to appear and answer, shall
be summary, without further pleadings, upon the oral examination and testimony of parties
and witnesses.” In Reuter v. Monroe, 110 Ind. App. 664, 668, 40 N.E.2d 371, 372 (1942),
our court held an affidavit filed by Monroe was insufficient as “proof of the facts therein
stated,” id., in a proceedings supplemental. The court in Reuter reversed the judgment based
on lack of evidence because Monroe did not appear in court to testify as required by the
relevant statute, which is virtually identical to the language of Ind. Code § 34-55-8-9. See
Reuter, 110 Ind. App. at 667, 40 N.E.2d at 372, citing Sec. 2-4404, Burns’ 1933 (“all
proceedings under this act, after the order has been made requiring parties to appear and
answer, shall be summary, without further pleadings, upon the oral examination and
testimony of parties and witnesses.”).
In the instant case, Townsend’s counsel acknowledged Townsend received notice of
the hearing, but was unable to attend the hearing. In lieu of their testimony, Townsend and
his wife sent affidavits regarding the issue of the ownership of the bank account 1st Source
sought to seize to satisfy the earlier judgment. 1st Source filed a motion to strike those
affidavits, and the trial court granted the motion. Thus, as Townsend failed to appear in court
as required by Ind. Code § 34-55-8-9, and the affidavits he attempted to offer were stricken,
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there was no evidence on the record to support Townsend’s contention the Bank of America
account was exempt from the proceedings supplemental. See Prime Mort. USA, Inc., 885
N.E.2d at 669 (once creditor establishes debt is owed and debtor is owner of account, the
burden of proof shifts to the debtor to prove the funds are exempt from seizure via
proceedings supplemental). Accordingly, we affirm.
Affirmed.
NAJAM, J., and KIRSCH, J., concur.
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