Keaton v. Fort Wayne Neurosurgery

"_new">Paul Keaton, an attorney from Fort Wayne, Indiana, was hired by Marjorie Wojcik to represent her in a personal injury claim arising out of an accident in which she was injured. It appears, although it is not clear, that as a result of the injuries Wojcik received in the accident, she received treatment from Fort Wayne Neurosurgery. Wojcik owed money to Fort Wayne Neurosurgery for the treatment she received, and on September 25, 2001, she entered into an agreed judgment with Fort Wayne Neurosurgery in the amount of $582.70. See footnote Approximately two weeks after the agreed judgment was entered, Fort Wayne Neurosurgery filed a motion for proceedings supplemental, in which Keaton was joined as a garnishee-defendant, in order to collect the judgment owed by Wojcik. In so doing, Fort Wayne Neurosurgery alleged that Keaton had in his possession certain items of Wojcik's property, including wages, salaries, commissions, earnings, and income.

Keaton stated, by sworn affidavit, that neither at that time, nor in the future, did he possess or expect to have control over any property, money, credits, or effects of Wojcik. He filed a motion for summary judgment upon the ground that he was not a proper garnishee-defendant. Following a hearing upon his motion, the trial court granted Fort Wayne Neurosurgery's motion and ordered that Keaton be a garnishee-defendant for the purpose of settling Wojcik's judgment debt to Fort Wayne Neurosurgery. The trial court further ordered that Keaton deduct $629.62, plus interest at eight percent per annum, from any amounts due and owing to Wojcik either at that time, or in the future, which resulted from any chose in action in which he represented Wojcik. Keaton now appeals from the denial of his motion for summary judgment and the trial court's garnishment order in favor of Fort Wayne Neurosurgery.See footnote

Summary judgment is appropriate only if the designated evidentiary material demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Title Search Co., Inc. v. 1st Source Bank, 765 N.E.2d 167, 171 (Ind. Ct. App. 2002), trans. denied. We apply the same standard as the trial court and resolve disputed facts and inferences in favor of the non-moving party. Id. The moving party bears the burden of establishing, prima facie, that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law. Id. Once the moving party has established that burden, the burden then falls upon the non-moving party to set forth specific facts demonstrating a genuine issue for trial. Id. Nevertheless, the party appealing a grant of summary judgment bears the burden of persuading us that the trial court erred. Id.
Pursuant to Indiana Trial Rule 69(E), proceedings supplemental, which are a mere continuation of the underlying claim on the merits, are initiated by verified motion under the same cause number in the same court which entered judgment against the defendant. Arend v. Etsler, 737 N.E.2d 1173, 1175 (Ind. Ct. App. 2000). Generally, three forms 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 judgment-debtor or an obligation owing from the third party to the judgment-debtor. Id. at 1175-76. A garnishment proceeding is a means by which a judgment-creditor seeks to reach property or credits of a judgment-debtor which are in the hands of a third person so that they may be applied in favor of the judgment. WW Extended Care, Inc. v. Aetna Life Ins. Co., 755 N.E.2d 712, 718 (Ind. Ct. App. 2001), reh'g denied. In the event that a person is named as a garnishee, the motion must allege that the "garnishee has or will have specified or unspecified nonexempt property of, or an obligation owing to the judgment debtor subject to execution or proceedings supplemental to execution . . . ." Ind. Trial Rule 69(E) (emphasis supplied). Property in which the judgment-debtor has no present interest may not be subject to garnishment. Nat'l Mut. Ins. Co. v. Sparks, 647 N.E.2d 375, 377 (Ind. Ct. App. 1995), trans. denied. Indiana law allows collection only against the judgment-debtor and any other person whom the judgment-debtor could have pursued him or herself. Id.

* * *

Click the case caption above for the
full text of the Court's opinion.

The judgment of the trial court is reversed and the cause is remanded with instructions for the trial court to enter summary judgment in favor of Keaton.

Unavailable

Unavailable

C.L.