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Webb v. Yeager

Court of Appeals of Indiana

March 9, 2016

Freddie L. Webb, Appellant-Defendant,
v.
Thomas A. Yeager, Appellee-Plaintiff

          Appeal from the Allen Superior Court. The Honorable Stanley A. Levine, Judge. Trial Court Cause No. 02D03-1405-CC-1014.

         FOR APPELLANT: Charles E. Davis, Davis Law, LLC, Fort Wayne, Indiana.

         FOR APPELLEE: Tyler D. Yeager, Snow & Sauerteig LLP, Fort Wayne, Indiana.

         Kirsch, J., and Mathias, J., concur.

          OPINION

         Brown, Judge.

         [¶1] Freddie L. Webb appeals the trial court's order granting summary judgment in favor of Thomas Yeager. Webb raises three issues which we consolidate and restate as whether the court erred in entering summary judgment in favor of Yeager and against him. We affirm.

         Facts and Procedural History

         [¶2] In 2002, Yeager provided Webb with a check for the payoff balance of Yeager's vehicle and with the vehicle for Webb to sell. Webb executed the check but did not use the funds to pay the balance due on the vehicle and did not return the vehicle. On February 26, 2004, Yeager submitted a Restitution Claim Form under cause number 02D04-0402-FD-82 (" Cause No. 82" ) indicating that his total actual losses were $21,700. On May 3, 2004, the Allen Superior Court, Criminal Division, entered a judgment of conviction under Cause No. 82 finding that Webb pled guilty to theft as a class D felony, sentencing Webb to two years with one and one-half years suspended to probation, and ordering that Webb pay Yeager restitution of $21,700.

         [¶3] Under Cause No. 82, in a form filed March 4, 2009 titled Summary of Probation Adult Probation Department Allen County, the comments include:

Since his release to probation, Mr. Webb has paid the restitution on the current case in full and has continued making consistent restitution payments to the four (4) other victims involved in consecutive cases. He has started his consecutive cause number 02D04-0402-FD-84 and has a one (1) year probation obligation. His original restitution total including cause numbers 02D04-0309-FC-172, 02D04-0402-FD-84, and [Cause No. 82] was $214,546.81 with a remaining balance of restitution of $148,796.81.

Id. at 66. Under the heading " FINANCIAL," the form states: " Restitution Assessed: $1,107.00," and " Balance Due: $0." Id. Under the heading " RECOMMENDATION FOR DISCHARGE," there are two options: (1) " Defendant to be discharged from Probation; " and (2) " Defendant to be discharged from Probation with a Civil Judgment in the amount of $N/A." Id. The box for the first option was marked.

         [¶4] On March 5, 2009, the court entered an order in Cause No. 82 which states: " The Court, having considered the summary of probation and recommendations, approves and adopts same. [Webb] is released from probation and ordered discharged. The Clerk is ordered to enter a civil judgment against for the amount of $ ." Id. at 67.

         [¶5] On May 12, 2014, Yeager filed a complaint against Webb in the Allen Superior Court under cause number 02D03-1405-CC-1014 (" Cause No. 1014" ). Yeager alleged that Webb was ordered to pay him $21,700 in Cause No. 82, that Webb made some payments through the Allen County Probation Department totaling $2,214, and that Webb still owed him $19,486 " pursuant to the Restitution Order and judgment entered in" Cause No. 82. Id. at 10. He requested " a judgment in [Cause No. 1014] be entered against [Webb] for $19,486.00 plus interest from the date of judgment in [Cause No. 82], costs, and for all other just and proper relief in the premises." Id.

         [¶6] On June 12, 2014, Yeager filed a motion for entry of judgment in Cause No. 1014 requesting the court to enter judgment " as this judgment was already rendered by the Court in" Cause No. 82. Id. at 11. On July 3, 2014, Webb filed a motion to dismiss and alleged that the underlying judgment rendered in the criminal court had been paid in full as of 2009. On July 8, 2014, the court denied both Yeager's motion for entry of judgment and Webb's motion to dismiss.

         [¶7] On October 24, 2014, the prosecutor filed a motion to correct the record with an attached affidavit of Eric Zimmerman, chief probation officer for the Allen County Probation Department,[1] in Cause No. 82 requesting that the court correct " the Release from Probation by showing a Judgment for Restitution in the amount of $20,593.10 against" Webb. Id. at 69. In November 2014, the court entered an order granting the State's motion, specifically stating:

The Summary of Probation filed on March 4, 2009, shows $1,107.00 in assessed restitution and $0 as the balance due. This is incorrect. The correct amount of assessed restitution is $21,700.00. The correct amount of balance due is $20,593.00. Therefore, the Court corrects its own record and orders a Judgment of Restitution in the amount of $20,593.00 in this cause as of March 4, 2009.

Id. at 47. In December 2014, Webb filed a Motion to Reconsider, to Vacate, to Correct Error and for Relief from Judgment.

         [¶8] On January 7, 2015, the court held a hearing in Cause No. 82 and stated that it did not intend to create a new judgment by entering the November 2014 order and vacated that order. The court asked Webb's counsel whether the restitution of $20,000 " just disappears" because the probation department made an error. Id. at 104. Webb's counsel stated that there was " plenty of opportunity" for Yeager to " come in" and that there were constitutional issues. Id. Counsel argued that

even if there was a mistake by Probation it was approved by the Court, a final order was entered, and even if there was a mistake there's just no jurisdiction to go back. You know, timely efforts to reinstate a judgment or a mistake must be made and there's nothing in the statutes or the case law that allows the Court or the prosecutor to go back more than five years to change that.

Id. at 105. After some discussion, the following exchange occurred:

COURT: Okay, I do agree with the State that not only does the Court have the ability to correct its own record, it has an obligation to correct its own record, and the Summary of Probation, based on the sworn affidavit from the Chief Probation Officer of Allen County Adult Probation, who is the keeper of records regarding how much restitution was actually collected from [Webb] in this cause and dispersed to [Yeager], that that number was in error. I'm not going to issue a new judgment.
[Webb's Counsel]: Okay.
COURT: The only thing that my order is going to indicate is that, with respect to the Summary of Probation filed, the restitution assessed was not $1,107.00.
[Webb's Counsel]: I have no problem with that.
COURT: That it was $21,700.00.
[Webb's Counsel]: Yes sir.
COURT: I will also show that pursuant to the sworn affidavit the amount actually paid by [Webb] was the $1,107.00. That's how much was actually paid by him according to Probation's account.
[Webb's Counsel]: According to Probation's records, I have no problem with that either, Your Honor.
COURT: So -- and according to probation records then the balance due on the Summary of Probation should have showed $20,593.00. At no point in my order will it say that ...

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