ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
R. DAVID BOYER, II ROBERT OWEN VEGELER
Helmke, Beams, Boyer & Wagner Beers, Mallers, Backs & Salin, LLP
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
KENNETH R. AREND, ) ) Appellant-Defendant, Cross-Plaintiff, ) ) vs. ) No. 02A05-0003-CV-82 ) JAMES L. ETSLER, ) ) Appellee-Plaintiff, Cross-Defendant. )The Honorable Norman E. Baker, Senior Judge Cause No. 02C01-8502-CP-243
APPEAL FROM THE ALLEN CIRCUIT COURT
November 8, 2000
OPINION - FOR PUBLICATION
Thus, 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. Needham v. Suess, 577 N.E.2d
965, 967 (Ind. Ct. App. 1991). Although this lien has an
initial life of ten years, it may be extended an additional ten years
under certain circumstances. See Ind. Code § 34-55-9-2; see also Ind. Code
§ 34-55-1-2. Furthermore, when a judgment has been entered and indexed, it
is not a warning of a lien to come, but it is from
that very moment a judgment lien. Muniz v. United States, 129 Ind.
App. 433, 155 N.E.2d 140, 148 (1958). Moreover, the property subject to
a judgment lien is limited to real property in the county where the
judgment has been entered and indexed by the trial court. See Ind.
Code § 34-55-9-2. 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. Needham, 577 N.E.2d at 967.
Although the enforcement of a judgment lien is available, a judgment creditor typically utilizes Indiana Trial Rule 69(E) to collect a final judgment. Trial Rule 69(E) provides that when a judgment creditor has no cause to believe that execution will satisfy a judgment, he can institute proceedings supplemental to execution to determine if the debtor has other property available to satisfy the judgment. Under Indiana law, the only issue presented in proceedings supplemental is that of affording the judgment-creditor relief to which she is entitled under the terms of the judgment. National Mut. Ins. Co. v. Sparks, 647 N.E.2d 375, 376-77 (Ind. Ct. App. 1995), trans. denied.
Pursuant to Trial Rule 69(E), proceedings supplemental are initiated by verified motion under the same cause number in the same court which entered judgment against the defendant. Kirk v. Monroe County Tire, 585 N.E.2d 1366, 1368 (Ind. Ct. App. 1992). Moreover, proceedings supplemental are merely a continuation of the underlying claim on the merits, not an independent action. Koors v. Great Southwest Fire Ins. Co., 538 N.E.2d 259, 260 (Ind. Ct. App. 1989). The proceedings are a nullity absent a valid judgment. Washburn v. Tippecanoe Office of Family and Children, 726 N.E.2d 361, 363 (Ind. Ct. App. 2000). Therefore, the validity of the underlying judgment has already been determined and proceedings supplemental may progress without a showing that execution has commenced or would be unavailing. Borgman v. Aikens, 681 N.E.2d 213, 217 (Ind. Ct. App. 1997), trans. denied.
At a proceeding supplemental, it is the duty of the judgment debtor to pay the judgment or come forward with property so that execution may proceed. Generally, three types of relief are available to a judgment creditor through a proceeding supplemental: 1) the judgment debtor is required to appear before the trial court and be examined as to available property; 2) the judgment debtor is required to apply particular property to the satisfaction of the judgment; and 3) a third-party garnishee is joined as a party and is required to answer as to non-exempt property held by the garnishee for the debtor or an obligation owing from the third party to the debtor. Harvey, 4 Ind. Practice 470 (1991). Property subject to execution at a proceeding supplemental includes both real and personal property. As commentary to Trial Rule 69(E) explains:
Rule 69(E) does not alter or modify the existing rules as to the property which may be subjected to creditor process by means of proceedings supplemental to execution. Although certain interests in the debtors property cannot be subjected to a levy of execution, proceedings supplemental to execution may be used to marshal any asset owned by the debtor which may be transferred by the debtor. After a hearing, a judge may order any property, income, or other asset of the judgment debtor which is not exempt from execution to be applied to the satisfaction of the judgment, whether the asset is in the hands of the judgment debtor or the garnishee defendant.
Id. at 473. Because it is apparent from the record that Arend
intends to collect the final judgment against Etsler via a proceeding supplemental and
not by enforcing the judgment lien, we must examine Indiana statute to determine
if this action is barred by the statute of limitations applicable to money
The statute of limitations for the enforcement of a money judgment is contained in Indiana Code section 34-11-2-12, which provides that:
Every judgment and decree of any court of record of the United States, of Indiana, or of any other state shall be considered satisfied after the expiration of twenty (20) years.
Therefore, a party has twenty years from the date the money judgment was
entered and indexed by the trial court to execute it. Here, Arend
and Etsler entered into a settlement agreement whereupon Etsler agreed to pay Arend
the sum of $15,000.00, plus interests, costs, costs of collection, and attorney fees.
The settlement agreement was reduced to a final judgment by the trial
court. The twenty-year statute of limitations of Indiana Code section 34-11-2-12 began
to run on May 16, 1989, the date the money judgment against Etsler
was entered and indexed by the trial court. On April 23, 1999,
Arend filed a motion for proceeding supplemental with the trial court.
See footnote Therefore,
Arend is entitled to execute the money judgment against Etsler because Arend filed
the motion for proceeding supplemental within twenty years of its rendition.