Freddie L. Webb, Appellant-Defendant,
Thomas A. Yeager, Appellee-Plaintiff
from the Allen Superior Court. The Honorable Stanley A.
Levine, Judge. Trial Court Cause No. 02D03-1405-CC-1014.
APPELLANT: Charles E. Davis, Davis Law, LLC, Fort Wayne,
APPELLEE: Tyler D. Yeager, Snow & Sauerteig LLP, Fort Wayne,
J., and Mathias, J., concur.
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.
and Procedural History
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.
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.
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.
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.
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.
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, 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,
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
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
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
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
[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 ...