FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE
COLE TAYLOR BANK:
GREGORY F. ZOELLER
Attorney General of Indiana BEN T. CAUGHEY
BRIAN J. PAUL
FRANCES BARROW Ice Miller LLP
Deputy Attorney General Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEYS FOR CO-APPELLEE
CIBM BANK:
SHAWNA MEYER EIKENBERRY
WENDY W. PONADER
Faegre Baker Daniels LLP
Indianapolis, Indiana
ATTORNEYS FOR THE NON-PARTY
LAWYERS:
TODD A. RICHARDSON
JOSEPH P. ROMPALA
KEVIN A. MORRISSEY
Lewis & Kappes, P.C.
Indianapolis, Indiana
Nov 07 2013, 5:36 am
IN THE
COURT OF APPEALS OF INDIANA
DEBRA MINOTT, in her official capacity as )
Secretary of the Family and Social Services )
Administration; FAITH LAIRD, Director of )
the Division of Aging; PATTI BAILEY, )
Coordinator of the Residential Care )
Assistance Program, )
)
Appellants-Defendants, )
)
vs. ) No. 49A05-1305-PL-213
)
LEE ALAN BRYANT HEALTH CARE )
FACILITIES, INC.; PARKVIEW )
RESIDENTIAL CARE CENTER, L.L.C.; )
PARKE COUNTY RESIDENTIAL CARE )
CENTER, L.L.C.; WESTPARK HEALTH )
CARE FACILITIES, L.L.C.; CHERYL A. )
HOLLAND; ROSS FISHER; PATRICK )
ZABORSKI; and BRYAN FRISON, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49D10-0911-PL-51397
November 7, 2013
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
The State of Indiana appeals from the trial court’s order denying its request for
restitution for damages paid under a judgment reversed by this court, raising the following
issue for our review: whether the trial court improperly denied the State’s request for
restitution. Concluding the trial court erred in denying the State’s motion for restitution, we
reverse and remand for further proceedings not inconsistent with this opinion.
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Facts and Procedural History
In February 2010, a number of residential care facilities (the “Providers”) which
provide services funded by the Family and Social Services Administration’s (“FSSA”)
Residential Care Assistance Program (“RCAP”) filed suit against the FSSA after it
suspended funding for new RCAP residents and imposed fixed reimbursement rates.
Following a bench trial, the Providers were awarded damages in the amount of $176,664.25.
In June 2011, the State appealed and requested a stay of the judgment pending appeal. The
State’s request for a stay was denied by both the trial court and the Indiana Court of Appeals.
In September 2011, the State filed a Notice of Tender of Judgment and Motion for
Apportionment and Assignment of Priority and attached copies of attorney liens filed by
Williams, Bax & Saltzman, P.C. and Lewis & Kappes (the “Law Firms”) pursuant to Indiana
Code section 33-43-4-1. Shortly after, the State filed a Notice of Additional Garnishment
Proceedings that affected the Providers’ award, which involved Cole Taylor Bank and CIBM
Bank, both of which were creditors of the Providers. Both Cole Taylor Bank and CIBM
Bank intervened in the suit, claiming an interest in the judgment proceeds.
On November 2, 2011, the Providers submitted to the trial court an agreed order,
providing for the release of the damages award held by the clerk, and the trial court entered
the agreed order as requested on November 4, 2011. The agreed order provided for the
disbursement of the $176,664.25 judgment proceeds as follows: $72,399.22 to the Law
Firms, $65,259.48 to Cole Taylor Bank, and separate payments of $9,175.32 and $29,830.23
to CIBM Bank.
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On June 8, 2012, this court issued an opinion reversing the trial court’s judgment and
remanding the case for further proceedings. See Gargano v. Lee Alan Bryant Health Care
Facilities, Inc., 970 N.E.2d 696 (Ind. Ct. App. 2012). That decision did not make any
determination regarding restitution. Id.
On October 19, 2012, the State filed a Motion for Entry of Final Judgment in the trial
court, which did not include mention of the $176,664.25 damages award. The trial court
entered the requested final judgment order on November 8, 2012, vacating its original order
awarding $176,664.25 in damages to the Providers. On January 4, 2013, the State filed a
motion to set aside the agreed order and requested that the trial court order the Law Firms,
Cole Taylor Bank, and CIBM Bank to return the money disbursed to them pursuant to the
agreed order. The trial court denied the State’s request for restitution on February 1, 2013
and denied the State’s motion to correct error on April 10, 2013. This appeal followed.
Discussion and Decision
I. Standard of Review
An order for restitution is within the trial court’s discretion and will be reviewed only
for an abuse of that discretion. Roach v. State, 695 N.E.2d 934, 943 (Ind. 1998). An abuse
of discretion occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances or if the decision is contrary to law. Vandenburgh v.
Vandenburgh, 916 N.E.2d 723, 728 (Ind. Ct. App. 2009).
II. Restitution
The State argues on appeal that the trial court abused its discretion by denying its
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motion for restitution, which requested that the Law Firms and other creditors of the
Providers be liable in restitution for funds paid pursuant to a judgment that was later
reversed. The Law Firms, in their appellees’ brief, argue that the State’s motion for
restitution was untimely, and even if the motion was timely filed, they contend that restitution
following a reversal on appeal cannot be extended to non-party creditors.
A. Timeliness
The Law Firms dedicate much of their brief to the position that the State’s motion for
restitution was untimely. They maintain that the judgment entered by the trial court on
November 8, 2012 was a final judgment which disposed of the entire suit. Thus, they believe
that the State’s motion for restitution must be treated as a post-judgment motion under either
Indiana Trial Rule 59, as a motion to correct error, or Indiana Trial Rule 60(B), as a motion
for relief from judgment. The Law Firms contend that the requirements were not met for
either Rule 59 or Rule 60(B). In response, the State argues the November 8th order was not a
final judgment because it did not address the issue of restitution and that the trial court
maintained jurisdiction over the suit after the November 8th order. We find the State’s
position persuasive.
A “final judgment” is a judgment that “disposes of all issues as to all parties, to the
full extent of the court to dispose of the same, and puts an end to the particular case as to all
of such parties and all of such issues.” Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. Ct.
App. 2002) (citation omitted). “A final judgment reserves no further question or direction for
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future determination.” Id. at 913 (citation omitted).
Although titled a “Final Judgment,” the trial court’s November 8th order does not
qualify as a final judgment under the definition stated above. That order, pursuant to this
court’s decision to reverse, set aside the trial court’s original findings of fact, conclusions of
law, and judgment in favor of the Providers and entered judgment in favor of the State. The
order did not, however, address the issue of restitution for the State’s payment of
$176,664.25 erroneously ordered by the trial court. Once the trial court’s original judgment
was set aside, the issue of restitution was the proverbial elephant in the room, one which
neither the parties nor the trial court could have ignored. Following the trial court’s
November 8th judgment, did the Providers and their creditors believe restitution was a non-
issue—that the State simply chose to let them keep $176,664.25 that was paid pursuant to a
reversed judgment? We think not.
The issue of restitution arose only after this court’s decision to reverse the trial court’s
judgment. The trial court’s November 8th order neither addressed nor disposed of that
lingering issue. Therefore, it was not a true final judgment. The State’s motion for
restitution requested relief that was not provided for or even contemplated by the trial court’s
order setting aside the original judgment in favor of the Providers. Because the State’s
motion did not seek relief from that judgment, we do not believe the State’s motion should be
treated as a request for post-judgment relief under Rule 59 or Rule 60(B)—untimely or
otherwise.
Concluding that the State’s request for restitution was not untimely, we next address
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its claim for restitution on the merits.
B. Restitution from Non-parties
The State seeks restitution from the non-party Law Firms and creditor banks in the
amount of $176,664.25. “A person who is unjustly enriched at the expense of another is
subject to liability in restitution.” RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST
ENRICHMENT § 1 (2011). The equitable principle of restitution considers the issue in this
case: payment of a judgment subsequently reversed on appeal.
A person who has conferred a benefit upon another in compliance with a
judgment, or whose property has been taken thereunder, is entitled to
restitution if the judgment is reversed or set aside, unless restitution would be
inequitable or the parties contract that payment is to be final; if the judgment is
modified, there is a right to restitution of the excess.
RESTATEMENT (FIRST) OF RESTITUTION § 74 (1937). When a request for restitution rests on
the reversal of a judgment, liability for restitution may extend beyond the named parties in
the suit. “If payment has been made to the judgment creditor or to his agent, or to an officer
who has paid the judgment creditor, upon reversal of the judgment the payor is entitled to
receive from the creditor the amount thus paid with interest . . . .” RESTATEMENT (FIRST) OF
RESTITUTION § 74 cmt. d (1937).
It is the State’s position that the Law Firms and creditor banks are judgment creditors
from whom the State may obtain restitution. The Law Firms, however, disagree and direct
this court to another comment to Section 74 of the Restatement, which addresses restitution
from an attorney or agent of a judgment creditor. That comment provides:
An attorney or other agent of the judgment creditor who receives payment
from the judgment debtor or who receives the proceeds of sale of the debtor's
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things and who pays it to the judgment creditor before reversal is not liable if
the judgment was valid before reversal and if he had no knowledge of any
fraud used in securing it. Under the same conditions he is under no duty to
repay money which he received on account of the judgment creditor and which
he retains as payment for services or for a debt owed by the judgment creditor
to him (see Illustration 20) since he received the money as a bona fide
purchaser.
RESTATEMENT (FIRST) OF RESTITUTION § 74 cmt. h (1937). The question for this court, it
seems, is whether the Law Firms were judgment creditors or merely entities which received
payment from a judgment creditor (the Providers) for services rendered.
A “judgment creditor” is defined as
[a] person in whose favor a money judgment has been entered by a court of
law and who has not yet been paid. One who has obtained a judgment against
his debtor, under which he can enforce execution. A person in whose favor a
money judgment is entered or a person who becomes entitled to enforce it.
Owner of an unsatisfied judgment.
Pond v. McNellis, 845 N.E.2d 1043, 1059-60 (Ind. Ct. App. 2006) (quoting BLACK’S LAW
DICTIONARY 844 (6th ed. 1990)) (emphasis added), trans. denied. The State relies heavily on
our decision in Pond, which held that a non-party attorney was a judgment creditor and
therefore subject to restitution. Id. at 1059-61. Pond involved an award of attorney fees by
the trial court in a dissolution of marriage. The award of attorney fees was reversed on
appeal, and Pond sought restitution from his ex-wife’s attorney, McNellis. This court
determined that McNellis was a judgment creditor who was entitled to enforce the judgment.
That conclusion was based on two circumstances in the case. First, the statute governing
attorney fees in an action for dissolution of marriage provided that “[t]he court may order the
amount to be paid directly to the attorney, who may enforce the order in his name.” Id. at
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1060 (citing Ind. Code § 31-1-11.5-16 (Supp. 1995), now codified as Ind. Code § 31-15-10-
1) (emphasis omitted). Second, the court noted that McNellis had “filed an attorney lien.”
Id.
The Law Firms argue that Pond is distinguishable because the Law Firms’ fees were
not a result of a court ordered award of attorney fees and because there is no similar statute
specifically granting direct payment to the Law Firms. The Law Firms also point out that the
reasoning in Pond relied at least in part upon a Washington Court of Appeals decision, In re
Marriage of Mason, 740 P.2d 356 (Wash. Ct. App. 1987), which was later distinguished by
the Washington Supreme Court in a case more factually similar to this one, Ehsani v.
McCullough Family P’ship, 159 P.3d 407 (Wash. 2007). Indeed, the decisions in Pond and
Mason relied upon a type of attorney fee statute that has no bearing in this case, and the court
in Ehsani distinguished Mason on that ground, concluding that the attorney was not a real
party in interest without the presence of such a statute and thus not liable for restitution. Id.
at 411-13. Nevertheless, we believe that the Law Firms and creditor banks in this case were
judgment creditors, and Ehsani is factually different from this case.
In Ehsani, the judgment was paid into the attorney’s client trust account, and “[a]t the
direction of his clients,” the attorney distributed the proceeds to the clients’ creditors and to
himself. Id. at 408.1 By contrast, the creditors in this case were not paid at the voluntary
1
The court in Ehsani believed that the facts before it “mirror[ed]” those of Illustration 20, relating to
comment h to Section 74 of the Restatement. Id. at 410 (citing RESTATEMENT (FIRST) OF RESTITUTION § 74
cmt. h, Illustration 20 (1937)) (“A obtains a valid judgment against B for $3000. B pays the amount of the
judgment to C, A’s attorney. At A’s direction C expends $1000 to satisfy A’s creditors and retains $2000 as
compensation for his services in this suit and in previous ones. Upon reversal of the judgment, B is not entitled
to restitution from C.”).
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direction of the Providers. The creditors in this case were paid directly from judgment
proceeds still in the hands of the trial court clerk, pursuant to a court order on the heels of
liens filed against the judgment.
The Law Firms attempt to liken their payment to the client-directed payment in
Ehsani, but in reality, the Providers here had no choice in the matter. Liens filed against the
Providers’ judgment entitled the Law Firms to the judgment proceeds. As this court has
previously stated, “an attorney’s lien . . . take[s] priority over the rights of other creditors,
including the judgment creditor.” In re Marriage of Hollingsworth, 671 N.E.2d 165, 168
(Ind. Ct. App. 1996) (emphasis added). If the creditors’ rights to the judgment were greater
even than the Providers’ rights, we see no logical reason to treat them differently for the
purposes of restitution. Given their entitlement to the judgment proceeds, the appellees were,
in effect, judgment creditors.
Moreover, the agreed order entered by the trial court on November 4, 2011 gave the
Law Firms and creditor banks the right to enforce the judgment. Indiana Trial Rule 71
provides: “When an order is made in favor of a person who is not a party to the action, he
may enforce obedience to the order by the same process as if he were a party . . . .” Because
the creditors had the power to enforce the judgment in their own favor, they are judgment
creditors and should be treated as such for the State’s request for restitution.
Conclusion
The State’s request for restitution was timely, and the Law Firms, Cole Taylor Bank,
and CIBM Bank were judgment creditors or their lawful equivalent and are therefore liable
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for restitution. Accordingly, we conclude that the trial court erred by denying the State’s
request for restitution.
Reversed and remanded.
RILEY, J., and KIRSCH, J., concur.
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