APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable Frances C. Gull, Judge. Cause No. 02D05-1104-FD-513.
FOR APPELLANT: J. KEVIN KING, PETER CAMPBELL KING, Cline, King & King, P.C., Columbus, Indiana.
FOR STATE OF INDIANA, APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; JUSTIN F. ROEBEL, Deputy Attorney General, Indianapolis, Indiana.
FOR PAIGE A. DEVLIN, APPELLEE: DENNIS R. BROWN, DENNIS R. GEISLEMAN, Geisleman & Brown, LLP, Fort Wayne, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
Randolph Kelley appeals from the trial court's order awarding Paige A. Devlin a $50,000 credit toward a restitution order entered in Kelley's favor. Concluding that the decision to award such a credit was within the trial court's discretion, we affirm.
In April 2011, Devlin was driving while intoxicated when she rear-ended Kelley's vehicle. Kelley was seriously injured as a result of the collision. Devlin subsequently pleaded guilty to class D felony operating a vehicle while intoxicated causing serious bodily injury and class C misdemeanor illegal consumption of an alcoholic beverage. As part of her sentence, Devlin was ordered to pay restitution to Kelley in the amount $59,974.87.
After the entry of the restitution order, Kelley initiated a civil suit against Devlin and his own underinsured motorist coverage provider. Eventually, Kelley agreed to settle the civil matter with Devlin for her $50,000 insurance policy limits. Shortly thereafter, a dispute arose concerning the language of the release and its effect on the previously entered restitution order. Kelley sought the inclusion of language within the release specifically providing that the settlement would have no impact on the restitution order. Devlin refused to include such language, arguing that Kelley had not bargained for it. Devlin eventually filed a motion to enforce the settlement agreement. A hearing was held before the civil court, at which Devlin argued that Kelley had not bargained for the inclusion of limiting language concerning the restitution order in the settlement agreement, and that in any event it was for the criminal court to determine what effect, if any, the settlement would have on the restitution order. The civil court ultimately ordered Kelley to execute a general release providing that he released Devlin " from any and all claims, demands, actions, and causes of action of each and every kind, whatsoever" relating to the car accident. Appellee Paige A. Devlin's Appendix at 1. The civil court specifically made " no determination whatsoever as to the effect of this settlement of the civil case upon the Order of Restitution" in the criminal matter and concluded that " whether or not any or all of this is a credit against the restitution is something to be determined by Judge Gull in the Criminal Division and not by this Court." Appellant's Appendix at 75. Kelley executed the release as ordered and did not appeal the civil court's decision.
Thereafter, Kelley filed a petition for proceedings supplemental in the criminal matter, seeking to collect on the restitution order. Devlin filed a response arguing that she was entitled to a credit toward the restitution order in the amount of $50,000 based on the civil settlement and release. A hearing was held on July 23, 2013, at which Kelley, Devlin, and the State all appeared. The State agreed that Devlin should receive a credit toward the restitution order. At the conclusion of the evidence and argument, the criminal court concluded that Kelley had signed an unambiguous release and that it was " only fair"
to credit the $50,000 civil judgment against the restitution order, leaving Devlin with an outstanding restitution order in the amount of approximately ...