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Garner v. Kempf

Court of Appeals of Indiana

January 30, 2017

Dennis Garner, Appellant-Defendant,
v.
Gregory Stewart Kempf and Vanderburgh County Clerk, Appellee-Plaintiff.

         Appeal from the Vanderburgh Superior Court The Honorable Richard G. D'Amour, Judge Trial Court Cause No. 82D07-1310-PL-4775

          ATTORNEY FOR APPELLANT Curt J. Angermeier Evansville, Indiana

          ATTORNEY FOR APPELLEES Joseph H. Harrison, Jr. Evansville, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Dennis Garner appeals from the trial court's order denying his motion for proceedings supplemental.

         [¶2] We reverse and remand with instructions.[1]

         Facts & Procedural History

         [¶3] In 2013, the Vanderburgh Superior Court awarded Garner a civil judgment against Gregory Kempf in the amount of $20, 600. Garner has been unable to collect on the judgment.

         [¶4] On July 30, 2015, criminal charges were filed against Kempf in an unrelated matter in Vanderburgh Superior Court, and a $5, 000 bond was posted on Kempf's behalf. The next day, Garner filed a motion for proceedings supplemental in the civil case seeking to garnish the bond proceeds and naming the Vanderburgh County Clerk (the Clerk) as a garnishee defendant. On the same date, Garner served a copy of the motion on the Clerk along with a letter advising the Clerk that Garner held a lien against the bond proceeds and that the Clerk could be held liable if it released the funds to anyone else. Garner did not, however, file anything in the criminal matter or otherwise give the criminal court notice of the lien. The Clerk did not make a note of the lien on the Chronological Case Summary (CCS) in the criminal case, and there is no indication that the criminal court had any knowledge of its existence. The parties do not dispute that Garner notified Kempf of the lien. On July 31, 2015, the civil court issued an order requiring Kempf and the Clerk to appear at a hearing on the motion for proceedings supplemental on August 26, 2015.

         [¶5] On August 13, 2015, [2] Kempf asked the criminal court to release the bond proceeds to his criminal defense attorney, and Kempf's attorney filed a written motion to that effect the next day. The criminal court, apparently still unaware of Garner's pending motion for proceedings supplemental, granted the request and ordered the proceeds of the bond released to Kempf's defense attorney on August 14, 2015.

         [¶6] The hearing on Garner's motion for proceedings supplemental was subsequently reset for September 22, 2015. At the hearing, the Clerk indicated that the bond proceeds had been paid to Kempf's criminal defense attorney pursuant to the criminal court's order. On September 29, 2015, the civil court entered a written order denying Garner's motion for proceedings supplemental and declining to enter judgment against the Clerk. Garner filed a motion to correct error, which the trial court denied after a hearing. This appeal ensued.

         Discussion & Decision

         [¶7] This court has set forth the standard of review applicable to appeals from judgments regarding ...


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