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Justices hear arguments in case seeking bond proceeds

June 23, 2017

The justices of the Indiana Supreme Court held arguments Thursday in a case where the question is whether a man who was awarded a judgment from a defendant in a civil case will be able to collect the bond proceeds from the defendant’s unrelated criminal case.

In the case of Dennis Garner v. Gregory Stewart Kempf, et al., 82S01-1705-Pl-00334, Dennis Garner was awarded a $20,600 civil judgment against Gregory Kempf, yet was unable to collect on the judgment. So, when charges were filed against Kempf in an unrelated criminal case, resulting in a $5,000 bond posted on Kempf’s behalf, Garner filed a motion for proceedings supplemental in the civil case to garnish the bond proceeds from the criminal case.

The Vanderburgh County Clerk was named as the garnishee defendant, but when the judge ordered the money to be paid out to Kempf’s criminal defense lawyer, the clerk disbursed the $5,000 to the attorney. Garner had not given the criminal court notice of his judicial lien on the bond proceeds, and there was no note of the lien on the chronological case summary.

The civil court denied Garner’s motion for proceedings supplemental and declined to enter judgment against the clerk, but the majority of an Indiana Court of Appeals panel reversed. Judges Robert Altice and Cale Bradford held in a January opinion it was incumbent upon the clerk, not Garner, to make the criminal court aware of Garner’s lien.

Curt Angermeier, counsel for Garner, made a similar argument before the Indiana Supreme Court Thursday, telling the justices that when the clerk realized there was a conflict between the judge’s order to pay the proceeds to defense counsel and the lien, she should have contacted the judge or Garner to resolve the issue. As an example, Angermeier said if the judge had ordered the clerk to pay the defense attorney $50,000 when only $5,000 was available, she likely would contact the judge to clarify the discrepancy in the amounts. A similar protocol should have been followed here, he said.

But Joseph Harrison Jr., who represented the Vanderburgh County clerk, said Garner could have only obtained the bond proceeds pursuant to the protocol laid out in Indiana Code section 35-33-8-7b. That statute holds that, “In a criminal case, if the court having jurisdiction over the criminal case receives written notice of a pending civil action or unsatisfied judgment against the criminal defendant arising out of the same transaction or occurrence forming the basis of the criminal case…the court shall order the deposited funds to be held by the clerk.”

There are two key elements in that statute, Harrison said — the written notice to the court, and the fact that the civil and criminal case must arise from the “same transaction or occurrence.” Here, there was no notice to the court, and the Kempf’s civil case with Garner was unrelated to his criminal charges. Thus, there was no legal authority for Garner to collect the bond proceeds, Harrison said. Indiana Court of Appeals Judge Rudolph Pyle raised similar concerns in his dissenting opinion.

Asked by Justices Steve David and Mark Massa if a third party could collect bond proceeds if the defendant was acquitted and the proceeds were not forfeited, Harrison said no, because the money must go back to the defendant, not the third party seeking to garnish the funds.

Angermeier told the court that Garner’s lien attached to the proceeds when he served the clerk with the proceedings. Further, the money could no longer be considered bail because the judge had ordered it to be paid out to the defense attorney.

Full arguments in the case can be watched here.

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