J&W Construction, Inc. v. Duffy Tool & Stamping, LTD, LLC

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
May 07 2014, 9:26 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DONALD H. DUNNUCK DAVID L. VAN SLYKE
Muncie, Indiana Plunkett Cooney, P.C.
Columbus, Ohio
IN THE
COURT OF APPEALS OF INDIANA
J & W CONSTRUCTION, INC., )
)
Appellant-Plaintiff, )
)
vs. ) No. 18A02-1309-CT-809
)
DUFFY TOOL & STAMPING, LTD, LLC, et al., )
)
Appellees-Defendants. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Kimberly S. Dowling, Judge
Cause No. 18C02-0909-CT-14
May 7, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, J&W Construction Inc.- (J&W), appeals the trial court’s
orders dismissing its motion for proceeding supplemental and its motion to correct error.
We affirm.
ISSUES
J&W raises two issues on appeal which we restate as:
(1) Whether the trial court erred in denying J&W’s motion for proceeding
supplemental; and
(2) Whether J&W waived our review of the trial court’s order dismissal of its motion
to correct error.
FACTS AND PROCEDURAL HISTORY
Duffy Tool & Stamping, Ltd., (Duffy)1 contracted with J&W to perform concrete
and excavation construction services. J&W completed all services and billed Duffy a total
of $16,912.00 for the work done; however, Duffy refused to pay. On September 9, 2009,
J&W filed a Complaint against Duffy. In the caption of the Complaint, J&W spelled
Duffy’s name as Duffey. On September 10, 2009, the trial court issued a Summons to
“Duffy Tool & Die Co.” and indicated its address as “West 8th Street, Muncie, IN, 47302.”
(Appellee’s App. p. 11). On September 15, 2009, Duffy was served with the Summons,
1
Duffy did not participate in this appeal, neither did it defend itself from J&W’s motion for proceeding
supplemental or the petition for permissive joinder and complaint to foreclose judgment; however, we note that a
party of record at trial is a party on appeal and thus we include Duffy’s name on the caption of this case. See
Appellate Rule 17(A) (“A party of record in the trial court…shall be a party on appeal.”)
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and on September 29, 2009, Duffy entered its appearance even though the Complaint had
named it as Duffey.
On March 16, 2010, J&W moved for an entry of default judgment on the basis that
Duffy had failed to file an Answer to its Complaint despite being given two extensions of
time the last of which was due on November 20, 2009. On the same day, the trial court
entered judgment in favor J&W in the amount of $16,912.00 together with court costs of
$146.00. The judgment was thereafter indexed in the trial court’s judgment docket under
the name Duffey.
In June 2011, Duffy entered into a contract to sell the real property commonly
known as 3401 West 8th Street, Muncie, Indiana (the Property) to MCDC — an Indiana
non-governmental agency charged with redevelopment of commercial properties in the
City of Muncie — for $300,000.00. Prior to the purchase, Indiana Title Company (Title
Company) performed a title examination, including a review of recorded mortgages and
judgments relative to the Property. The examination by the Title Company revealed eight
judgments against Duffy. The March 16, 2010 judgment was not listed in the search
because that Judgment had been indexed under Duffey rather than Duffy. The sale of the
Property closed on July 14, 2011, and on the same day, MCDC entered into a lease
agreement with Indiana Stamping.
On August 1, 2012, J&W initiated a proceeding supplemental against Duffy,
alleging in part: (1) the March 16, 2010 judgment of $16,912.00 was unpaid; (2) there was
no cause to believe that a levy of execution against Duffy would satisfy the judgment; (3)
Duffy had non-exempt property, income, wages, assets, or profits subject to execution of
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the said judgment; and (4) requesting an order requiring that MCDC and Indiana Stamping
(Garnishee Defendants)2 be named garnishee defendants and be made parties to the
proceeding and answer to any interest they may have in non-exempt property that could be
applied to satisfy the Judgment. On September 20, 2012, Garnishee Defendants moved to
dismiss J&W’s motion for proceeding supplemental on the basis that the motion was
procedurally improper. In support of its motion to dismiss, Garnishee Defendants
incorporated an affidavit from James Trulock (Trulock), the co-president of Title
Company, who swore, in pertinent part that:
7. In June 2011, Duffy [] entered into a contract to sell the [Property].
8. [] Title Company performed a title examination relative to the proposed
transaction.
9. The title examination included a review of the Delaware Circuit . . . [C]ourt’s
judgment index.
10. In Delaware County, there is no search field for corporate entities.
11. In Delaware County, the local search standard is that judgments against
corporate entities are properly indexed under the last-name field in the . . . [trial]
[c]ourt’s computer system.
12. [] Title Company, [conducted the search] in accordance with the local search
standard, [and] examined the [] judgment index under the last-name field for Duffy.
13. The examination revealed eight (8) possible liens against Duffy . . .
14. The [] judgment asserted . . . by J&W was not located.
15. The [] judgment asserted by J&W was not properly indexed inasmuch as the
only way to locate the judgment was to search Duffey in the first-name field.
16. Had the [] judgment been indexed in the last-name field under Duffy, it would
have been located during [] Title Company’s examination of the judgment index.
17. At no point in time until summer of 2012, did [] Title Company have any
knowledge of the [] judgment against Duffey
18. If before closing the transaction, [] Title Company would have known that J&W
[] would claim an interest [] in [the Property], Title Company would not have
allowed the transaction to close.
19. The [judgment] was not in the chain of title to the [Property].
2
MCDC and Indiana Stamping were not party to the original suit. However, they were named as garnishee
defendants in J&W’s motion for proceeding supplemental.
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(Appellant’s App. pp. 41-42).
On October 17, 2012, J&W filed a petition for permissive joinder of parties and
complaint to foreclose judgment, asserting that the judgment was superior to “all claims,
liens and interest that may be asserted against” the Property. (Appellant’s App. p. 108).
On October 30, 2012, Garnishee Defendants moved to dismiss J&W’s petition for
permissive joinder of parties and complaint to foreclose judgment.
On February 6, 2013, J&W filed its response to the Garnishee Defendants’ motion
to dismiss. In support of its argument, J&W submitted an affidavit from Steven Craycraft
(Craycraft), clerk of the Delaware Circuit Courts, who swore in pertinent part:
3. That on September 9, 2009 the above styled case was filed in Delaware County
which subsequently resulted in a judgment against [Duffy] . . .
4. That said Judgment was duly recorded on the judgment docket and a search on
the same could have been found by any competent judgment searcher.
5. That I personally ran a judgment search under the name Duffy Tool & Stamping,
Ltd., LLC and was able to locate the said judgment on the judgment docket.
6. That the said judgment was properly indexed on March 16, 2010.
7. That said judgment docket was in the chain of title and notice to the world that
the said judgment was and is a judgment in lien on said [P]roperty.
(Appellant’s App. p. 120). On March 14, 2013, the Garnishee Defendants filed a second
Affidavit from Trulock. Trulock authenticated his previous search with screen-shots from
the trial court’s online public records showing that the judgment could not be found under
Duffy.
On June 24, 2013, the trial court held a hearing and heard arguments from both sides
on the motion for proceeding supplemental and on the petition for permissive joinder and
complaint to foreclose judgment. The trial court took the matter under advisement and on
July 11, 2013, in its order dismissing J&W’s motion and petition, the trial court found in
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pertinent part that: the Judgment was not properly indexed; it was J&W’s responsibility to
ensure the judgment was properly indexed; and that MCDC was a bona fide purchaser for
value
On August 6, 2013, J&W filed a motion to correct error alleging that the trial court
erred in dismissing its motion for proceeding supplemental and its petition for permissive
joinder and complaint to foreclose judgment. J&W also argued that the trial court had
erred in finding that the judgment was not properly indexed, and it was J&W’s
responsibility to ensure that the judgment was properly indexed. On August 14, 2013,
Garnishee Defendants moved to file a memorandum in opposition to J&W’s motion to
correct error. On August 29, 2013, without conducting a hearing, the trial court issued an
order dismissing J&W’s motion to correct error.
J&W now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
J&W argues that the trial court erred in denying its motion for proceeding
supplemental and its motion to correct error. We will address each argument in turn.
I. Motion for Proceeding Supplemental
J&W appeals the trial court’s order denying its motion for proceeding supplemental.
Proceedings supplemental are designed as a remedy where a party fails to pay a money
judgment. Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 668 (Ind. Ct. App. 2008).
The proceedings are merely a continuation of the underlying claim, initiated under
the same cause number for the sole purpose of enforcing a judgment. Ill. Founders Ins.
Co. v. Horace Mann Ins. Co., 738 N.E.2d, 708 (Ind. Ct. App. 2000). These proceedings
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“serve the limited purpose of determining whether an asset is in the judgment debtor’s
possession or subject to the judgment debtor’s control and can be attached to satisfy the
judgment.” State Farm Mut. Auto. Ins. Co. v. Estep, 873 N.E.2d 1021, 1029 (Ind. 2007).
Our system vests trial courts with broad discretion in conducting proceedings
supplemental. Commercial Credit Counseling Servs., Inc. v. W.W. Grainger, Inc., 840
N.E.2d 843, 847 (Ind. Ct. App. 2006). “[I]n proceedings supplemental, we are constrained
to treat a trial court’s judgment as being general only.” First Bank of Whiting v. Samocki
Bros. Trucking Co., 509 N.E.2d 187, 192 (Ind. Ct. App. 1987), trans. denied. We will not
disturb a trial court’s judgment regarding a proceeding supplemental unless the record does
not provide sufficient support for any theory on which the judgment may be sustained. Ill.
Founders Ins. Co., 738 N.E.2d at 708. “We will affirm the trial court’s judgment on any
legal theory supported by the evidence most favorable to the judgment, together with all
reasonable inferences to be drawn therefrom.” Gallant Ins. Co. v. Wilkerson, 720 N.E.2d
1223, 1226 (Ind. Ct. App. 1999).
As a preliminary matter, we note that Duffy did not file an appellee’s brief. Under
this circumstance, we do not undertake the burden of developing arguments for the
appellee. Am. Acceptance Co. LLC v. Willis, 984 N.E.2d 653, 654 (Ind. Ct. App. 2013).
Instead, we apply a less stringent standard of review and may reverse if the appellant
establishes prima facie error. Id. Prima facie error is “error at first sight, on first
appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.
Ct. App. 2006).
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Garnishee Defendants maintain that the motion for proceeding supplemental was
procedurally improper because at the time the motion was filed, Duffy was not the owner
of the Property. As such, Garnishee Defendants argue that J&W should have sought to
foreclose the Property under Trial Rule 69 (C) due to the judgment lien. J&W counters
these arguments by stating that the trial court failed to address this procedural issue at the
time. Therefore, J&W argues that “[h]ad the trial court determined that [it’s] “purported
Complaint” did not comply with the [T.R.] 69 . . . [J&W] [should] have been free to re-file
their Complaint under a separate cause number and proceed with its remedies pursuant to
[T.R.] 69(C).” (Appellant’s Br. p. 5).
In addressing the arguments raised, we first note that a money judgment becomes a
lien on the debtor’s real property when the judgment is recorded in the judgment docket in
the county where the realty held by the debtor is located. Needham v. Suess, 577 N.E.2d
965, 967 (Ind. Ct. App. 1991); see I.C. § 34-44-9-2. Also, once a judgment lien has
attached to land, it remains until it is legally removed, and anyone buying property to which
a lien has attached and who has actual or constructive notice of the lien takes the property
subject to the lien. Id.
We have previously observed that “enforcement of a judgment lien is a separate and
distinct action from the execution of a money judgment via proceeding supplemental.”
Arend v. Etsler, 737 N.E.2d 1173, 1174 (Ind. Ct. App. 2000). “Proceedings 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.” Id. (quoting Hinds v. McNair,
235 129 N.E.2d 553, 558 (Ind. 1955)).
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Here, notwithstanding the March 2010 judgment, Duffy conveyed the Property to
MCDC in June 2011. Before the sale closed, MCDC conducted a title search and the
judgment in question could not be found in the judgment docket under the name Duffy.
Further, the record reveals that the judgment had been indexed under the name Duffey. “A
record outside the chain of title does not provide notice to bona fide purchasers for value.”
Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 774 (Ind. Ct. App. 2003). Therefore,
nothing in the county records would have placed MCDC on notice of a pending judgment
lien. Based on the foregoing, we conclude that MCDC was a bona fide purchaser for value
as a matter of law.
Thus, in dismissing J&W’s motion for proceeding supplemental, the trial court duly
established that Duffy was not the owner of the Property as of the date of filing the
proceeding supplemental and that the Property was not in the control of Duffy to satisfy
the judgment. Also since we find MCDC to be a bona fide purchaser for value, we find
that equity favors MCDC. As a bona fide purchaser of the Property, MCDC could only be
responsible for what was in the county records at the time the title search was conducted.
MCDC could not have cured deficiencies in the records of which it was totally unaware.
In contrast, as a judgment holder, J&W could have taken steps to cure the deficiencies, i.e.,
it could have checked the records to ensure that its judgment was properly indexed and
perfected, giving rise to a lien, or it could have sought to amend the caption to its Complaint
by correcting Duffy’s name. In short, J&W was in a better position to prevent the dispute
at hand. As such, we find no error in the trial court’s decision in dismissing J&W’s motion
for proceeding supplemental.
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II. Waiver of Motion to Dismiss Issue on Appeal
J&W contends that the trial court erroneously dismissed its motion to correct error.3
Overall, we find that J&W’s argument on this issue is too poorly developed to be
understood. Indiana Appellate Rule 46(A)(8)(a) states that the argument section of an
appellant’s brief
must contain the contentions of the appellant on the issues presented, supported by
cogent reasoning. Each contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal relied on....
It is well-settled that we will not consider an appellant’s assertion on appeal when
he has not presented cogent argument supported by authority and references to the record
as required by the rules. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999).
Additionally, “[w]e will not become an advocate for a party, nor will we address arguments
which are either inappropriate, too poorly developed or improperly expressed to be
understood.” Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487
(Ind. Ct. App. 2003) (quoting Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749,
754 (Ind. Ct. App. 1985), trans. denied.)
In the argument section of its brief, J&W briefly states that the trial court failed to
apply the proper standards when it granted Garnishee Defendants’ motion to dismiss. It is
not even clear to us which motion to dismiss J&W is referring to. Furthermore, J&W
quotes provisions of Trial Rule 12(b) and cites several authorities which set forth our
3
J&W also stated in its brief that the trial court erred in considering the affidavits filed by the Garnishee
Defendants in support of their motion to dismiss its proceeding supplemental and petition for permissive joinder of
parties and complaint to foreclose judgment. This argument was not properly developed, and as such, we will not
delve into this issue. See Ind. Appellate Rule 46(A)(8).
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standard of review for summary judgment; however, J&W does not elaborate how the
sections or the cases cited relate to its appeal. Because J&W argument was not properly
developed, we find that this issue is waived. See State v. Holtsclaw, 977 N.E.2d 348, 350
(Ind. 2012) (appellant waived argument by “failing to appropriately develop or support
it”).
CONCLUSION
Based on the foregoing, we find that (1) the trial court properly denied J&W’s
proceeding supplemental, and (2) J&W failed to appropriately develop or support its
argument on how the trial court erred in dismissing its motion to correct error.
Affirmed.
ROBB, J. and BRADFORD, J. concur
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