Charles W. Florance v. American Express Centurion Bank (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 24 2019, 10:17 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Charles W. Florance Charlie W. Gordon
South Bend, Indiana Lloyd & McDaniel, PLC
Louisville, Kentucky
IN THE
COURT OF APPEALS OF INDIANA
Charles W. Florance, September 24, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CC-854
v. Appeal from the St. Joseph
Superior Court
American Express The Honorable Margot F. Reagan,
Centurion Bank, Judge
Appellee-Plaintiff Trial Court Cause No.
71D04-1802-CC-326
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 1 of 5
[1] In February 2018, American Express Centurion Bank (American Express) filed
a complaint against Charles Florance, seeking payment of $22,837.45.1
Florance and counsel for American Express reached an agreement to settle the
case, and their agreement was memorialized on the record during a January 9,
2019, hearing:
Bank: . . . Mr. Florance has agreed to pay in full settlement
a total of $13,500. Terms being $750 a month times
18 months, starting sometime this month. . . .
***
Bank: Upon a default situation and an affidavit from my
office, we would then pursue the remaining balance
in full that was pled in the original complaint,
minus any payments made.
The total amount in the complaint, which is still due
through today is $22,837.45. But again, we’re
willing to settle for the $13,500 as settlement in full.
***
Florance: And I think if that’s contingient [sic] on a dismissal
with prejudice once the 18 months are complete and
the payments are all made?
1
The complaint is not included in the record on appeal, but we infer that it related to debt owed by Florance
to American Express on a credit account.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 2 of 5
Bank: Certainly.
Florance: I’m 100 percent in agreement.
Tr. Vol. II p. 2-3.
[2] On January 28, 2019, American Express sent an Agreed Judgment to Florance.
The Agreed Judgment provided as follows:
1. Plaintiff shall have Judgment against the Defendant for the
sum of $22,837.45 . . . .
2. It is further agreed that [if] Defendant pays $13,500.00 to
Plaintiff at the rate of $750.00 each month . . . until the
$13,500.00 is paid in full, Plaintiff shall not issue execution
on this Judgment. . . .
3. It is further agreed that if the Defendant defaults from the
payment schedule set forth in paragraph 2, Plaintiff shall
be free to issue execution on this Judgment forthwith.
Appellant’s App. Vol. II p. 3. Florance did not sign the Agreed Judgment, but
the trial court signed and entered it on March 14, 2019. Florance now appeals.2
[3] Florance argues that the language of the Agreed Judgment is inconsistent with
the agreement articulated at the January 2019 hearing. We disagree. The
2
American Express notes that agreed judgments are not appealable. See Gallops v. Shambaugh Kast Beck &
Williams, LLP, 56 N.E.3d 59, 62-64 (Ind. Ct. App. 2016) (explaining that an agreed judgment is a consent
decree rather than a judicial determination and that its entry is a ministerial act by the trial court and not
appealable). We agree, but choose to address Florance’s arguments briefly in an attempt to offer clarity.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 3 of 5
Agreed Judgment does, indeed, include the full amount owed by Florance to
American Express, preserving the bank’s right to execute that judgment in the
event of a default. It also, however, indicates that if Florance makes monthly
payments of $750 until he reaches the total amount of $13,500, then American
Express will not execute the full amount of the judgment.
[4] Florance appears to believe, mistakenly, that American Express agreed to
dismiss its complaint with prejudice immediately. While that phraseology was
used at the hearing (by Florance), it is apparent that the parties intended to
enter a judgment, which would act as security for the settlement agreement;
then, if and when the sum of Florance’s monthly payments totals $13,500,
American Express will vacate the judgment.
[5] In other words, if Florance makes the agreed monthly payments of $750 for 18
months, reaching the amount of $13,500, then American Express will vacate
the judgment and forego pursuit of Florance for the remaining balance.
Therefore, the end result is precisely in line with the parties’ agreement.
[6] We note that the language of the Agreed Judgment does not conform to the
agreement reached by the parties during the hearing. Specifically, American
Express agreed that the judgment would be dismissed with prejudice—or, more
accurately, vacated—if and when Florance’s payments total $13,500. Tr. Vol.
II p. 2-3. Therefore, we remand with instructions to enter an order requiring
American Express to file a motion to vacate the Agreed Judgment if and when
Florance’s timely monthly payments total $13,500. The order should require
Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 4 of 5
that the motion to vacate be filed within fourteen days of the day on which
Florance’s payments total $13,500.
[7] The judgment of the trial court is affirmed and remanded with instructions.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CC-854 | September 24, 2019 Page 5 of 5