ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
MICHAEL T. TERWILLIGER PATRICK B. McEUEN
Hinshaw & Culbertson Singleton, Crist, Austgen & Sears
Schererville, Indiana Munster, Indiana
COURT OF APPEALS OF INDIANA
ROBERT R. KRILICH, )
vs. ) No. 45A04-0202-CV-57
SOLTESZ/BRANT DEVELOPMENT )
COMPANY, A Florida General Partnership, and )
RAYMOND T. SOLTESZ, A General Partner, and )
WILLIAM J. BRANT, JR., A General Partner, )
APPEAL FROM THE LAKE SUPERIOR COURT 5
The Honorable James J. Richards, Judge
Cause No. 45D05-0001-MI-11
July 9, 2002
OPINION - FOR PUBLICATION
Robert R. Krilich (Krilich) obtained a judgment against William J. Brant, Jr. (Brant)
in a Florida court in the amount of $2,309,525.41 plus court costs and
interest. Krilich later filed a complaint on foreign judgment in Lake Circuit
Court in order to domesticate the judgment against Brant in Indiana.
filed a motion for summary judgment and Brant responded with a cross-motion for
summary judgment. In his motion, Brant argued that Krilich did not have
a valid lien on his real property in Florida; therefore, Krilich did not
have the right to pursue a lien against his real property in Indiana.
Facts and Procedural History
The trial court granted Krilichs motion for summary judgment to domesticate his judgment
against Brant, in part, finding that Krilich was the owner of a valid
Florida judgment. However, it also granted Brants cross-motion for summary judgment, in
part, denying Krilich a lien against Brants real property in Indiana. Krilich
filed a motion to correct error, which was denied. He appeals arguing
that the trial court erred when it granted Brants cross-motion for summary judgment,
in part, because Indiana law and procedure governs the execution of an Indiana
judgment, and therefore, he has the right to pursue a lien against Brants
real property in Indiana.
We reverse and remand for proceedings consistent with this opinion.
On December 31, 1986, Krilich and Brant, who was a partner of the
Soltesz/Brant Development Company, entered into a Tenancy in Common Agreement with respect to
a shopping center in Tampa, Florida. In part, the agreement provided that
Krilich agreed to purchase an 80% interest in the shopping center in return
for a guarantee from Brant that the shopping center would produce a cash
flow to Krilich equal to 9-1/2% of the amount invested by Krilich.
Appellants App. p. 66. When the shopping center failed, Krilich filed a
complaint against Brant in Hillsborough Circuit Court in Florida. On November 1,
1989, the Florida court entered a final judgment in favor of Krilich in
the amount of $2,310,367.51 plus interest. A certified copy of the judgment
was recorded in Hillsborough County on June 22, 1990 and it bore the
name and address of Brants attorney. The judgment was re-recorded in 1996
with the Hillsborough Circuit Court Clerk with an affidavit from Krilichs attorney, which
contained Brants last known address.
On June 17, 1996, Krilich filed a complaint on foreign judgment in Lake
Circuit Court to domesticate the Florida judgment. Brant filed an answer to
the complaint, but the parties later stipulated to dismissal of the complaint, without
prejudice. On December 16, 1996, Krilich filed a motion for reinstatement following
voluntary dismissal. The case was reinstated, by agreement, on March 26, 1997.
Brant then filed an answer and motion for change of judge.
Therefore, on May 19, 1998, Lake Superior Court Judge James Richards assumed jurisdiction.
On July 6, 1999, Krilich filed a motion for summary judgment. Brant
filed a response and cross-motion for summary judgment arguing that the Florida court
did not have jurisdiction over him, or in the alternative, that Krilich failed
to properly record a lien on his Florida judgment, and therefore, no judgment
lien should be recognized in Indiana. Appellants App. pp. 45, 50.
On June 4, 2001, the trial court granted Krilichs motion for summary judgment,
in part, and granted Brants motion in part, issuing the following order:
The Court, being duly advised, now finds as follows and enters these conclusions
Krilich is the owner of a valid Florida judgment entered on November 1,
1989, following appropriate service of process upon Brant in accordance with both Florida
and Indiana long-arm statutes, and Brants challenges to the jurisdiction of the Florida
Court over his person should be denied.
The Court, finds Brants Cross-Motion for Summary Judgment and argument for denial of
the attachment of Plaintiffs lien upon Brants real estate in Indiana to be
compelling and that there shall not be a lien on any real property
owned by Brant in Indiana.
The Court therefore orders as follows:
Krilichs Motion for Summary Judgment [is] GRANTED to domesticate his judgment against Brant,
individually, to the extent of Brants personalty subject to attachment and garnishment to
satisfy the judgment.
Brants Cross-Motion for Summary Judgment is GRANTED to deny Plaintiff a lien against
Defendants real estate in Indiana to satisfy Plaintiffs judgment.
Appellants App. pp. 9-10.
Standard of Review
Krilich filed a motion to correct error on June 27, 2001, which was
deemed denied pursuant to Indiana Rule of Trial Procedure 53.3. He then
filed a notice of appeal, but also filed a motion requesting that our
court remand the case to the trial court to conduct a hearing on
the motion to correct error. The motion was granted and the case
was remanded to the trial court on December 5, 2001. The trial
court held a hearing on Krilichs motion to correct error on December 13,
2001, and denied the motion on December 31, 2001. Krilich appeals.
Our standard of review of a summary judgment motion is the same standard
used in the trial court:
Summary judgment is appropriate only where the evidence shows there is no genuine
issue of material fact and the moving party is entitled to judgment as
a matter of law. All facts and reasonable inferences drawn from those
facts are construed in favor of the non-moving party. The review of
a summary judgment motion is limited to those materials designated to the trial
court. We must carefully review decisions on summary judgment motions to ensure
that the parties were not improperly denied their day in court.
Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001) (citations omitted).
When there are no disputed facts with regard to a motion for summary
judgment and the question presented is a pure question of law, we review
the matter de novo. Mahowald v. State, 719 N.E.2d 421, 424 (Ind.
Ct. App. 1999).
Discussion and Decision
The Full Faith and Credit Clause of the United States Constitution requires that
[f]ull faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. U.S. Const. art.
IV, § 1. Full faith and credit means that the judgment of
a state court should have the same credit, validity, and effect, in every
other court of the United States, which it had in the state where
it was pronounced. N. Ind. Commuter Transp. Dist. v. Chicago SouthShore and
South Bend R.R., 685 N.E.2d 680, 685 (Ind. 1997) (quoting Underwriters Natl Assurance
Co. v. N. Carolina Life and Accident and Health Ins. Guar. Assn, 455
U.S. 691, 704 (1982)). Indiana Code section 34-39-4-3 provides that records and
judicial proceedings from courts in other states shall have full faith and credit
given to them in any court in Indiana as by law or usage
they have in the courts in which they originated. Ind. Code §
34-39-4-3 (1999). Furthermore, the judgment of a sister state, regular and complete
upon its face, is prima facie valid. Tom-Wat, Inc., 741 N.E.2d at
348 (quoting Varoz v. Estate of Shepard, 585 N.E.2d 31, 33 (Ind. Ct.
App. 1992), trans. denied).
Krilich argues that Indiana law and procedure govern the proceedings to enforce his
Florida judgment in Indiana; therefore, regardless of whether he had acquired a lien
on Brants real property in Florida, he is not precluded from pursuing a
lien on Brants real property in Indiana. Brant responds that the trial
court properly denied Krilich a lien on his real property in Indiana.
He contends that if Krilich had a lien on his real property in
Indiana, this would result in the Indiana judgment having a greater effect than
the Florida judgment because Krilich did not have a valid lien on his
real property in Florida.
Under Indiana law, a judgment creditor may collect a judgment from the debtor
by enforcing a judgment lien and/or executing a money judgment via proceedings supplemental.
Arend v. Etsler, 737 N.E.2d 1173, 1174 (Ind. Ct. App. 2000).
Indiana Code section 34-55-9-2 provides that:
All final judgments for the recovery of money or costs in the circuit
court and other courts of record of general original jurisdiction in Indiana, whether
state or federal, constitute a lien upon the real estate and chattels real
liable to execution in the county where the judgment has been duly entered
and indexed in the judgment docket as provided by law:
after the time the judgment was entered and indexed; and
until the expiration of ten (10) years after the rendition of the judgment;
exclusive of any time during which the party was restrained from proceeding on
the lien by an appeal, an injunction, the death of the defendant, or
the agreement of the parties entered of record.
Ind. Code § 34-55-9-2 (1999). Therefore, a money judgment becomes a lien
on the debtors real property when the judgment is recorded in the judgment
docket in the county where the realty held by the debtor is located.
Arend, 737 N.E.2d at 1175 (citing Needham v. Suess, 577 N.E.2d 965,
967 (Ind. Ct. App. 1991)).
Under Florida law, the rights of a judgment creditor may also be enforced
against the real property of the judgment debtor. However, unlike Indianas procedures,
in Florida, a judgment does not automatically become a lien against the debtors
real property when the judgment is recorded in the judgment docket. Florida
Statute section 55.10(1) provides:
A judgment, order, or decree becomes a lien on real property in any
county when a certified copy of it is recorded in the official records
or judgment lien record of the county, . . . provided that the
judgment, order, or decree contains the address of the person who has a
lien as a result of such judgment, order, or decree or a separate
affidavit is recorded simultaneously with the judgment, order, or decree stating the address
of the person who has a lien as a result of such judgment,
order, or decree. A judgment, order, or decree does not become a
lien on real property unless the address of the person who has a
lien as a result of such judgment, order, or decree is contained in
the judgment, order, or decree or an affidavit with such address is simultaneously
recorded with the judgment, order, or decree.
Fla. Stat. § 55.10(1) (2001).
Upon proper domestication, the concept of full faith and credit requires that Indiana
accept Krilichs Florida judgment as a valid Indiana judgment. Clearly Krilich could
proceed to enforce the judgment in Florida under Floridas collection laws or in
Indiana under Indianas collection laws. The fact that Krilichs efforts to create
a valid judgment lien under Florida law may have been inadequate is not
dispositive of his right to collect his valid Florida judgment under Indiana law.
Allowing Krilich to domesticate his judgment in Indiana and to enforce that
judgment by recording a lien against Brants real property in Indiana, in accordance
with Indiana collection law, does not give him greater rights in Indiana than
he would enjoy in Florida. Therefore, we conclude that Krilich is not
precluded from pursuing a lien on Brants real property in Indiana and, the
trial court erred when it denied Krilichs motion for summary judgment in part
and granted Brants motion in part.
Reversed and remanded for proceedings consistent with this opinion.
BARNES, J., and KIRSCH, J., concur.
After Brant filed a motion for change of judge, the case was
transferred to Lake Superior Court.
Footnote: Brant argues that Krilich does not have a valid lien on his
real property in Florida because he has not complied with the provisions of
this statute. Krilich argues that he complied with the statute when he
re-recorded his lien in 1996.