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Divided COA reverses denial of proceedings supplemental

January 30, 2017

A divided Indiana Court of Appeals panel has reversed a trial court’s denial of a motion for proceedings supplemental in a civil case, writing that it was incumbent upon the county clerk, not the litigant, to ensure that a criminal court knew of a lien against criminal bond proceeds.

In 2013, the Vanderburgh Superior Court awarded Dennis Garner a civil judgment of $20,600 against Gregory Kempf. However, Garner has been unable to collect on the judgment.

After unrelated charges were filed against Kempf in 2015, resulting in a $5,000 bond posted on his behalf, Garner filed a motion for proceedings supplemental in the civil case to garnish the bond proceeds and named the Vanderburgh County Clerk as a garnishee defendant. Garner served a copy of the motion on the clerk and advised the clerk that he held a lien against the bond proceeds, so the clerk could be held liable if the funds were released to anyone else.

A month later, Kempf asked the criminal court to release the bond proceeds to his criminal defense attorney. However, Garner did not give the criminal court notice of the lien and the clerk did not make note of it on the Chronological Case Summary in the criminal case, so the criminal court released the bond proceeds to Kempf’s defense attorney.

The civil court then entered an order denying Garner’s motion for proceedings supplemental, declined to enter judgment against the clerk and also declined Garner’s motion to correct error. Garner appealed in Dennis Garner v. Gregory Stewart Kempf and Vanderburgh County Clerk, 82A01-1512-PL-2362, arguing that the clerk wrongfully released the bond proceeds to Kempf’s attorney and, thus, was liable to him for $5,000. 

But the Vanderburgh Superior Court argued that Garner was responsible for ensuring that an entry was made on the CCS in the criminal case under a Vanderburgh Circuit and Superior Courts rule. However, a majority of a panel of the Indiana Court of Appeals wrote Monday that the “rule” the court referenced was actually an internal memo.

Thus, the trial court erroneously relied on the memo when it denied Garner’s motion for proceedings supplemental, the court held. Further, the divided panel rejected the Vanderburgh County Clerk’s argument that cash bail bonds in criminal cases are not subject to garnishment for judgment in a civil case.

Instead, majority judges Robert Altice and Cale Bradford noted Indiana Code 34-25-3-1 provides that “’all officers who may collect money by virtue of their office, including … clerks of the circuit and superior court’ are subject to garnishment ‘in the same manner as and to the same extent that other persons are subject to garnishment.’”

Thus, Altice wrote that it was incumbent upon the clerk to make the criminal court aware of Garner’s lien. The majority, therefore, reversed the trial court’s denial of Garner’s motion for proceedings supplemental and remanded the case with instructions to enter judgment accordingly.

But Judge Rudolph Pyle, writing in a dissenting opinion, said that under Indiana Code 35-33-8-7(b), the only time a third party can attach bond monies to satisfy a civil judgment against a criminal defendant is when the criminal charges arise out of “the same transaction or occurrence.”

But the majority judges, referencing the dissent in their opinion, wrote that the statute Pyle references only limits “the ability of a criminal court to declare bond proceeds forfeited,” not the rights of creditors.

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