                                                                     Oct 15 2015, 10:34 am




ATTORNEYS FOR APPELLANT                                    APPELLEE PRO SE
Donn H. Wray                                               John E. Bator
Marc A. Menkveld                                           Bator Law
Katz & Korin, PC                                           Greenfield, Indiana
Indianapolis, Indiana

Roger L. Burrus
Burrus & Sease, LLP
Zionsville, Indiana

Mickey J. Lee
McGinnis Wutscher Beiramee, LLP
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

The Branham Corporation,                                   October 15, 2015

Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           06A01-1409-PL-399
        v.                                                 Appeal from the Boone Circuit
                                                           Court.
                                                           The Honorable J. Jeffrey Edens,
Newland Resources, LLC and                                 Judge.
John E. Bator, et al.                                      Cause No. 06C01-0409-PL-517
Appellees-Defendants.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015                   Page 1 of 27
                                       Statement of the Case
                             1
[1]   This is the fourth appeal in this litigation between the parties stemming from a

      contract for assistance in negotiation for the provision of water and sewer utility

      services in Boone County. Here, the trial court granted The Branham

      Corporation’s motion to voluntarily dismiss without prejudice proceedings

      supplemental to execution of garnishment against certain garnishee defendants,

      conditioning the same upon the payment of the attorney fees incurred by the

      garnishee defendants up to the time of the filing of the motion to dismiss. The

      trial court later issued an amended order establishing the amount of the various

      attorney fee awards, setting a deadline for the payment of those fees, and

      ordering the dismissal be converted to a dismissal with prejudice in the event of

      nonpayment of the fees by the established deadline. The trial court’s order was

      stayed pending appeal. Branham now appeals and John E. Bator, a garnishee
                                       2
      defendant, cross-appeals. We affirm.




      1
        We granted the motion to consolidate two appeals under this cause number on October 29, 2014.
      Ultimately, the appeal consolidated with the present appeal was dismissed with prejudice. Thomas N. Eckerle
      v. The Branham Corporation, 06A01-1409-PL-405.
      2
        Branham filed its verified motion for proceedings supplemental to execution and garnishment against
      Newland Resources, LLC, as defendant/judgment debtor, and against Samuel Sutphin, White River
      Funding Corporation, White River Venture Partners, L.P., James B. Harmon, Lindsey Harmon,
      Ecoholdings, LLC, Alana Fine Jewelry, N.V., Cornelius M. (“Lee”) Alig, Dorothy Alig, Greenleaf, LLC,
      Royal Run Partners, L.P., John Michael Kensill, Ecosource, LLC, Thomas Eckerle, Melissa Rhodes
      Garrard, John Bator, Redman Ludwig, P.C., Boone County Utilities, LLC, Delores (“Dee”) Sutphin, and
      other yet to be determined garnishees, as garnishee defendants. Bator is the only garnishee defendant who
      has entered an appearance and participated in this appeal. However, Indiana Appellate Rule 17(A) provides
      in pertinent part that “[a] party of record in the trial court . . . shall be a party on appeal.”

      Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015                      Page 2 of 27
                                                      Issues
[2]   Branham raises the following issues on appeal, which we consolidate and

      restate as:


              I.       Did the trial court err by applying Indiana Trial Rule
                       41(A)(2) to proceedings supplemental filed under Indiana
                       Trial Rule 69(E)?
              II.      Did the trial court err by ignoring its own mandatory local
                       rule concerning signatures of an attorney of record on
                       pleadings?
              III.     Did the trial court err by vacating a prior order after it had
                       already become final and effective and no motion to
                       correct error or appeal from that order had been pursued?
              IV.      Was Branham denied procedural and substantive due
                       process?
      Bator raises the following issue on cross-appeal:


              V.       Did the trial court err by limiting its award of attorney fees
                       to only those fees incurred up to the filing of Branham’s
                       motion to dismiss?

                                Facts and Procedural History
                    Businesses, Attorneys, and Individuals Involved
[3]   To give context to the relationship of the various businesses, attorneys, and

      individuals involved, we first set forth their various roles. Boone County

      Utilities, LLC, is an Indiana limited liability company wholly owned by

      Newland Resources, LLC. Newland is owned by four entities: EcoHoldings,

      LLC, EcoSource, LLC, Greenleaf, LLC, and White River Venture Partners.



      Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015    Page 3 of 27
                                                                                                                  3
      EcoHoldings, LLC, is the Managing Member of BCU. Appellant’s App. p. 96.

      James B. Harmon is the Managing Member of EcoHoldings, LLC. Id. John

      Michael Kensill is the Managing Member of EcoSource, LLC. Id. Cornelius

      M. (Lee) Alig is the Managing Member of Greenleaf, LLC, and the principal of

      Royal Run Partners, LP, the developer of Royal Run subdivision. Id. Samuel

      Sutphin is the General Partner of White River Venture Partners. Id.


[4]   Harmon also served as the Manager of BCU. Id. Kensill served as BCU’s

      Assistant Manager. Id. Delores (Dee) Sutphin was BCU’s Bookkeeper. Id.


[5]   The Branham Corporation entered into an agreement with Newland to provide

      assistance in negotiating contracts to accept sewage flow from and for the sale

      of water in Boone County, and is the judgment creditor of a judgment entered

      against Newland on a breach of contract claim.


[6]   Valenti-Held Real Estate Group, LLP is an affiliate of Valenti-Held

      Contractor/Developer, Inc., an owner/developer of approximately 462 acres of

      land located in Perry and Worth Townships of Boone County. Id. Valenti-




      3
        Branham, in its Verified Motion for Proceedings Supplemental To Execution and Garnishment, made
      reference to orders issued by the Indiana Utility Regulatory Commission (“IURC”) that are available online
      and asked the trial court to take judicial notice of them pursuant to Indiana Evidence Rule 201. The petition
      appears in the Appellant’s Appendix at page 96 and includes the website locations for those orders.
      (https://myweb.in.gov/IURC/eds/Modules/Ecms/Cases/Docketed_Cases/ViewDocument.aspx?DocID=
      0900b631800645c2);
      (https://myweb.in.gov/IURC/eds/Modules/Ecms/Cases/Docketed_Cases/ViewDocument.aspx?DocID=
      0900b63180071140). The information we use here is contained in those orders and we will cite to them only
      by their location in the Appendix.

      Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015                       Page 4 of 27
      Held entered into a series of contracts with BCU for the provision of water and

      sewage utility services within its development. Id.


[7]   Melissa Garrard is an attorney who represented Newland and for a time Dee

      Sutphin. Thomas Eckerle is an attorney who represented Newland and its

      members with regard to liquidation of BCU’s assets from September 22, 2003 to

      September 28, 2004, and also represented Newland and its members in the

      BCU bankruptcy case. John E. Bator and his former law firm represented BCU

      in BCU’s Chapter 11 liquidation proceedings in bankruptcy court.


                                               The Litigation
[8]   Background information from prior appeals and actions in this matter is helpful

      to understand how the parties to this appeal arrived at this point. We draw our

      information from those cases and direct those interested in reading more about
                                                                4
      them to the pertinent citations listed below.


[9]   Newland was organized on October 11, 1994, and was originally formed to

      develop real estate, ultimately exploring a possible development project in

      Boone County known as the Royal Run Subdivision. In 1996, after considering

      options for the provision of water and sewer utility services to that subdivision,

      Newland formed a wholly-owned utility operating company known as BCU.




      4
       In Re Boone County Utilities, LLC, 506 F.3d 541 (7th Cir. 2007); Newland Res., LLC v. Branham Corp., 918
      N.E.2d 763 (Ind. Ct. App. 2009); Branham Corp. v. Newland Res., LLC, 17 N.E.3d 979 (Ind. Ct. App. 2014);
      Appellee’s Appendix pp. 151-62 (April 1, 2014 order of United States Bankruptcy Court S.D., Indianapolis
      Div.); and the IURC orders referenced above.

      Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015                     Page 5 of 27
       Newland entered into an agreement with Branham for assistance in negotiating

       a contract with the City of Indianapolis for the acceptance of sewage flow from

       the BCU service area and a contract with the Indianapolis Water Company for

       the sale of water to BCU for delivery in the BCU service area. Among the

       numerous terms of the contract between Newland and Branham was a

       provision for the calculation and payment of a success fee.


[10]   On June 5, 2002, the IURC initiated an investigation into the operation of

       BCU. An interim order entered on March 12, 2003, imposed several conditions

       on BCU. That order was followed by a second interim order issued by the

       IURC on December 17, 2003, finding BCU in substantial and material non

       compliance with many of the conditions imposed earlier and scheduling a

       hearing to consider either the appointment of a receiver or the sale of BCU.


[11]   Ultimately, BCU filed a petition for Chapter 11 bankruptcy and the bankruptcy

       court established three claims bar dates, each in 2004. Branham filed several

       proofs of claim, each timely filed, but each based on its contract with Newland.

       After delays requested by Branham, a hearing was held on Branham’s claims.

       The day before that hearing Branham filed an untimely proof of claim that

       raised different theories of recovery. The district court denied the timely proofs

       of claim because they were contract based and BCU, the debtor, was not a party

       to the contract. The untimely proof of claim was denied because it was

       untimely and raised new theories of recovery. The district court’s judgment

       was affirmed by the Seventh Circuit Court of Appeals. In Re Boone County

       Utils., LLC, 506 F.3d 541 (7th Cir. 2007).

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 6 of 27
[12]   On February 11, 2004, the Town of Whitestown, BCU, and Valenti-Held

       entered into a Novation and Substitution Agreement that was conditioned upon

       approval from the bankruptcy court and any approval necessary from the

       IURC. Ultimately, the IURC deferred to the jurisdiction of the bankruptcy

       court. BCU filed a disclosure statement related to its amended liquidating plan

       of reorganization, and filed a plan establishing that Whitestown would pay

       $4,200,000.00 to BCU, and would pay $4,222,175.00 to Valenti-Held to resolve

       all of BCU’s obligations to Valenti-Held. The bankruptcy court approved the

       agreement and the closing occurred on July 20, 2004 over Branham’s

       objections.


[13]   On October 31, 2005, Branham filed its first amended complaint against

       Newland and others. In the end, the only count remaining for trial was

       Branham’s allegation of breach of contract against Newland regarding the

       calculation and payment of the success fee. At the conclusion of the jury trial, a

       verdict was returned in favor of Branham awarding damages in the amount of

       $397,853.92. The trial court entered judgment on the jury verdict and a panel

       of this Court affirmed the trial court’s judgment. Newland Res., LLC v. Branham

       Corp., 918 N.E.2d 763 (Ind. Ct. App. 2009).


[14]   On June 22, 2010, the Boone Circuit Court entered an order awarding Branham

       post-judgment interest on the jury verdict that had been upheld on appeal.

       Newland was given twenty-one days from the date of the order in which to

       satisfy the judgment plus interest. However, Branham was unable to collect the

       judgment.

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 7 of 27
[15]   Pursuant to BCU’s liquidation plan in the bankruptcy proceedings, distributions

       from the sale were made to creditors, and then Newland, the sole equity holder

       in BCU, for its equity interest. Claims for administrative expenses,

       administrative claims of professionals, and priority tax claims were not

       classified under the plan, but were to be paid as soon as practicable after the

       sale. Branham was not listed as a secured creditor because BCU was not a

       party to the contract between Newland and Branham.


[16]   On December 29 and 30, 2011, Branham filed a Verified Motion for

       Proceedings Supplemental to Execution and Garnishment (Cause No. 06C01-

       0409-PL-517) (“517”), and a Complaint for Damages (Cause No. 06C01-1201-

       CT-0001) (“0001”). In 0001, Branham alleged claims under the Indiana Crime
                                  5            6
       Victims Relief Act and RICO based upon predicate offenses of

       fraud/fraudulent transfer, deception, and conversion/theft/receiving stolen

       property. In a nutshell, Branham alleged that the manner in which the 2004-

       2005 distribution made by Newland from the BCU sale proceeds purposely

       depleted Newland’s assets such that Newland was unable to satisfy Branham’s

       judgment against Newland.


[17]   The trial court entered summary judgment motions against Branham in 0001.

       On appeal, we affirmed the trial court’s grant of summary judgment against




       5
           Ind. Code § 34-24-3-1 (2011)
       6
           Ind. Code § 35-45-6-2 (1991).


       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 8 of 27
       Branham and reversed the trial court’s order dismissing Eckerle without

       prejudice, and remanded the matter to the trial court for entry of summary

       judgment in favor of Eckerle. This resolved the claims brought under 0001.

       Branham Corp. v. Newland Res., LLC, 17 N.E.3d 979 (Ind. Ct. App. 2014).


[18]   We now turn to the subject of this appeal which involves our review of the trial

       court’s decision in 517, Branham’s Verified Motion for Proceedings

       Supplemental to Execution and Garnishment.


[19]   Although brought as a motion for proceedings supplemental, Branham’s

       motion was much more than that. Proceedings supplemental to execution

       “may be enforced by verified motion or with affidavits in the court where the

       judgment is rendered alleging generally: (1) that the plaintiff owns the

       described judgment against the defendant; (2) that the plaintiff has cause to

       believe that levy of execution against the defendant will satisfy the judgment;

       (3) that the defendant be ordered to appear before the court to answer as to his

       non-exempt property subject to execution or proceedings supplemental to

       execution or to apply any such specified or unspecified property towards

       satisfaction of the judgment; and, (4) if any person is named as a garnishee, that

       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, and that the garnishee be ordered to appear and

       answer concerning the same or answer interrogatories submitted with the

       motion.” Ind. Trial Rule 69(E).



       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 9 of 27
[20]   Branham’s motion established that it is the owner of a judgment entered based

       on a jury’s verdict in the same court and requested that the trial court take

       judicial notice of that judgment and the trial court’s order on post-judgment

       interest. However, Branham’s motion also threatened to seek the remedy of

       contempt, alleging that Newland disobeyed the trial court’s order to pay the

       judgment by concealing property and engaging in fraudulent conveyances.

       Section XVII of the motion specifically alleges Newland fraudulently conveyed

       property. Other counts alleged various violations of the Indiana Business

       Flexibility Act. Ind. Code § 23-18-1-1 (1993).


[21]   In section XXV, on page fifty-four of Branham’s verified motion, Branham

       sought equitable relief from the court including “‘piercing the corporate veil’

       where, as here, Newland’s managers and/or members have committed wrongs

       such as (1) undercapitalization; (2) failure to maintain and/or provide corporate

       records; (3) fraudulent representations; (4) use of the company to promote

       fraud, injustice, or illegal activities; (5) conference of benefits on individual

       members; (6) commingling of assets and affairs; (7) failure to observe required

       company formalities; and (8) other acts that ignore, control, or manipulate the

       business form.” Appellant’s App. pp. 54-55. Branham further alleged that

       Harmon had perjured himself, and that Harmon, as the majority owner of

       EcoHoldings, violated various sections of the Indiana Code pertaining to

       limited liability companies by reporting to the Indiana Secretary of State an

       erroneous address for EcoHoldings’ principal office and by falsely reporting that

       EcoHoldings’ corporate records were maintained at that erroneous address.


       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 10 of 27
[22]   On August 21, 2012, the trial court held a hearing on all pending motions in

       517 and took the matter under advisement. Days after the hearing, Branham

       filed a motion to withdraw proceedings supplemental as to Dee Sutphin and

       Melissa Garrard. The trial court entered an order withdrawing the proceedings

       supplemental as to Sutphin and Garrard the next day before a response could be

       filed. Branham also filed a motion to withdraw proceedings supplemental as to

       Eckerle, Bator, and Redman Ludwig, P.C., and a separate motion to withdraw

       proceedings supplemental as to BCU.


[23]   On August 27, 2012, Eckerle filed an objection to Branham’s motion as to him.

       Next, on September 4, 2012, Eckerle filed a motion to vacate Branham’s

       withdrawal of proceedings supplemental against him. On September 14, 2012,

       Delores Sutphin and Melissa Garrard each filed motions for joinder in Eckerle’s

       objection and motion to vacate the withdrawal. Likewise, Bator and Redman

       Ludwig, P.C., sought to join in Eckerle’s objection and motion.


[24]   The trial court held a hearing on the matter on December 7, 2012. In an order

       issued on February 4, 2013, the trial court stated that it would allow Branham

       to withdraw proceedings supplemental without prejudice as to Bator, Redman

       Ludwig, P.C., Eckerle, Garrard, and Sutphin, conditioned on the payment of

       attorney fees to be determined by the court. The trial court later established the

       amount of fees to be paid and issued an order on August 25, 2014. Branham

       now appeals and Bator cross-appeals.




       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 11 of 27
                                     Discussion and Decision
                                           Standard of Review
[25]   The parties agree that this matter should be reviewed de novo. Where the facts

       before the trial court are in dispute but the trial court rules on a paper record

       without conducting an evidentiary hearing, no deference is afforded the trial

       court’s findings of fact or judgment. GKN Co. v. Magness, 744 N.E.2d 397, 401

       (Ind. 2001). This is so because in those circumstances, a court on review is in

       as good a position as the trial court to determine the matter before it. Id. We

       will affirm the judgment of the trial court on any legal theory the evidence of

       record supports. Id. Nevertheless, the trial court’s ruling is presumptively

       correct, and is subject to reversal on the basis of an incorrect factual finding

       only if the appellant persuades us that the balance of the evidence is contrary to

       the trial court’s findings. Id.


          I. Conditions of Withdrawal of Proceedings Supplemental
[26]   Branham argues that the trial court erred by applying Indiana Trial Rule

       41(A)(2) to impose conditions on its withdrawal of proceedings supplemental

       under Indiana Trial Rule 69(E). Branham argues that Trial Rule 41(A) applies

       only to civil actions and since proceedings supplemental are not civil actions, the

       rule is inapplicable.


[27]   Here, Branham filed proceedings supplemental under 517 in an effort to collect

       on its judgment against Newland. As our supreme court stated in Rose v.

       Mercantile Nat. Bank of Hammond, 868 N.E.2d 772, 775 (Ind. 2007), “[j]udgment

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 12 of 27
       creditors in Indiana have long relied on proceedings supplemental to execution

       to help enforce judgments.” “With roots in equity, a proceeding supplemental

       offers the judgment creditor judicial resources ‘for discovering assets, reaching

       equitable and other interest[s] not subject to levy and sale at law and to set aside

       fraudulent conveyances.’” Id. (quoting McCarthy v. McCarthy, 156 Ind. App.

       416, 420-21, 297 N.E.2d 441, 444 (1973).


[28]   “Proceedings supplemental are a continuation of the underlying claim on the

       merits—not an independent action.” Lewis v. Rex Metal Craft, Inc., 831 N.E.2d

       812, 817 (Ind. Ct. App. 2005). They are initiated under the same cause number

       in the same court that entered judgment against the defendant. Id. In addition,

       although the rule itself explains that no further pleadings shall be required, case

       law requires responsive pleadings when a new issue arises. Rose, 868 N.E.2d at

       775. Nevertheless, even when no new issue arises, responsive pleadings are

       permitted, leading to discovery and a hearing. Id.


[29]   Therefore, the issue here is not whether proceedings supplemental are civil

       actions under Indiana Trial Rule 3, but whether Indiana Trial Rule 41

       provisions regarding dismissal apply to these particular proceedings

       supplemental. We believe that the trial court correctly concluded that they do.


[30]   For all of its prolixity, the 517 verified motion for proceedings supplemental

       requests only the kind of relief available through Trial Rule 69(E). However, it

       raises many new issues in the process of asserting its entitlement to funds

       purportedly held by the garnishee defendants. The trial court analogized the


       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 13 of 27
       517 proceedings supplemental to a tort claim because of the various allegations,

       substantially similar to those alleged in 0001, made against the garnishee

       defendants in the course of attempting to satisfy the judgment against Newland.


[31]   As noted above, Branham’s motion threatened to seek the remedy of contempt

       alleging that Newland disobeyed the trial court’s order to pay the judgment by

       concealing property and engaging in fraudulent conveyances. Section XVII of

       the motion specifically alleges Newland fraudulently conveyed property. Other

       counts alleged various violations of the Indiana Business Flexibility Act. Ind.

       Code § 23-18-1-1 (1993).


[32]   More specifically, Branham’s motion threatened to seek the remedy of

       contempt alleging that Newland disobeyed the trial court’s order to pay the

       judgment by concealing property and engaging in fraudulent conveyances.

       Section XVII of the motion specifically alleged Newland fraudulently conveyed

       property. Other counts alleged various violations of the Indiana Business

       Flexibility Act. Ind. Code § 23-18-1-1 (1993). Branham alleged that Newland’s

       managers and/or members had committed wrongs such as (1)

       undercapitalization; (2) failure to maintain and/or provide corporate records;

       (3) fraudulent representations; (4) use of the company to promote fraud,

       injustice, or illegal activities; (5) conference of benefits on individual members;

       (6) commingling of assets and affairs; (7) failure to observe required company

       formalities; and (8) other acts that ignore, control, or manipulate the business

       form. Branham also alleged that payments made to the attorney garnishee



       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 14 of 27
       defendants for their legal services was in fact illegal because it was purportedly

       in contravention of the March 12, 2003 IURC order.


[33]   The trial court noted that responses had been filed to the 517 allegations to

       which no objection had been lodged and therefore conditioned Branham’s

       withdrawal without prejudice of the proceedings supplemental as to those

       garnishee defendants on the payment of a portion of their attorney fees. Such a

       practice has met with approval in civil actions. See Highland Realty, Inc. v.

       Indianapolis Airport Auth., 563 N.E.2d 1271, 1273 (Ind. 1990) (payment of

       defendant’s attorney fees condition of voluntary dismissal without prejudice in

       civil action pending for over five years in three counties).


[34]   Just as equitable principles are involved in proceedings supplemental as a

       remedy to creditors in discovering assets in collection of their judgments, it is

       appropriate under these specific circumstances for the trial court to exercise its

       equitable power here to protect the interests of the garnishee defendants.


[35]   “As a general proposition, the trial court has full discretion to fashion equitable

       remedies that are complete and fair to all parties involved.” Swami, Inc. v. Lee,

       841 N.E.2d 1173, 1178 (Ind. Ct. App. 2006), trans. denied. Nonetheless, trial

       courts will not exercise equitable powers when an adequate remedy at law

       exists. Id. Where necessary, equity has the power to pierce rigid statutory rules

       to prevent injustice. Id. But if substantial justice can be accomplished by

       following the law, and the parties’ actions are clearly governed by rules of law,

       equity follows the law. Id. at 1178-79.


       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 15 of 27
[36]   The garnishee defendants have defended against the proceedings supplemental

       initiated by Branham and have incurred attorney fees in the process. That the

       litigation up to this point has been contentious is manifest. As the trial court

       noted, Branham’s verified motion was fifty-nine pages long and made specific

       allegations against the garnishee defendants to the point that the allegations

       resembled a tort claim to which the garnishee defendants felt compelled to

       respond. The proceedings supplemental were initiated on December 29, 2011.

       By February 4, 2013, when the court filed its initial order on the motion to

       withdraw, the parties had filed and responded to many motions and pleadings.

       The garnishee defendants denied the proceedings supplemental allegations and

       filed affirmative defenses to Branham’s claims.


[37]   With respect to attorney fees, Indiana adheres to the American Rule, namely

       that each party must pay his own attorney fees absent an agreement between

       the parties, statutory authority, or a rule to the contrary. Fackler v. Powell, 891

       N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans. denied. There are certain

       recognized exceptions to the general rule, which are inapplicable here. See State

       Bd. of Tax Comm’rs v. St. John, 751 N.E.2d 657, 659 (Ind. 2001)(recognizing

       equitable exceptions of obdurate behavior and common fund to American rule).


[38]   Branham seeks to have the proceedings supplemental dismissed without

       prejudice against these garnishee defendants. Understandably, the garnishee

       defendants are concerned about incurring additional attorney fees in the event

       that Branham refiles proceedings supplemental against them. The trial court

       correctly concluded that as a condition of withdrawing the proceedings

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 16 of 27
       supplemental without prejudice, Branham must pay a portion of the reasonable

       attorney fees incurred by the garnishee defendants. We find no error in the trial

       court’s use of Indiana Trial Rule 41(A)(2) to effect this equitable remedy.


[39]   Similarly, we reject Branham’s argument that the motion to withdraw did not

       need a court order, under Indiana Trial Rule 41(A)(1)(a), because no answer or

       motion for summary judgment had been filed by the garnishee defendants.

       Many pleadings which were appropriate responses and challenges to the

       proceedings supplemental were filed by the garnishee defendants without

       objection. Motions to dismiss, motions to quash, and motions to stay were

       filed prior to the filing of the motions to withdraw. The motions to withdraw

       made specific reference to statements made during a hearing held on August 21,

       2012. We conclude that under the particular circumstances of this case the trial

       court correctly determined that the voluntary dismissal without prejudice

       should be by order of the court with conditions imposed.


                                 II. Boone County’s Local Rule
[40]   Next, Branham argues that the trial court erroneously failed to apply its

       mandatory local rule to Bator. Branham contends that since Bator admitted he

       did not file an appearance in this action, any pleadings accepted for filing

       should have been struck from the record. Branham turns to Indiana Trial Rule

       3.1 in support of its argument.


[41]   In Boone County, appearances by counsel are governed by local rule. Boone

       LR06-TR03.1. Subsection (A)(1) of the rule provides that “[e]very pleading

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 17 of 27
       filed shall clearly identify the name, address and telephone number of the

       attorney filing the pleading. Any attorney for a party shall first file his formal

       written Appearance in accordance with Trial Rule 3.1 and Criminal Rule 2.1.”

       Id. Subsection (A)(2) additionally provides that “[a]ny pleading not signed by

       at least one attorney appearing of record as required by T.R. 11 of Indiana

       Rules of Procedure shall not be accepted for filing, or, if inadvertently accepted

       for filing, shall, upon discovery of the omission, be struck from the record.” Id.


[42]   In Meredith v. State, 679 N.E.2d 1309, 1310 (Ind. 1997), our Supreme Court

       discussed the ability of Indiana trial courts to “establish rules for their own

       governance, so long as the rules are not inconsistent with rules prescribed by the

       Indiana Supreme Court or by statute.” Local rules were described as generally

       procedural rules intended to standardize practice within that court, to facilitate

       the flow of information, and to enable the trial court to rule on the merits of the

       case, in an effort to help the parties and trial court. Id. While observing the

       general purpose of local rules, the Supreme Court noted that strict adherence to

       the rules should yield where “invoking them would defeat justice.” Id. at 1311.

       The Supreme Court cautioned, however, that “[b]efore a court may set aside its

       own rule, it should not be set aside lightly, the court must assure itself that it is

       in the interests of justice to do so, that the substantive rights of the parties are

       not prejudiced, and that the rule is not a mandatory rule.” Id. Mandatory rules

       are described as those that set time limitations or other requirements which

       must be met before the trial court may hear the case. Id. n.2.




       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 18 of 27
[43]   Here, Branham did not file a written objection to any of Bator’s pleadings and

       did not move to strike them for failure to comply with the local rule. Rather,

       Branham orally raised the issue of noncompliance with the rule at the hearing

       held on October 23, 2013, during which the issue of attorney fees was addressed

       after the proceedings supplemental had been ordered dismissed. Branham was

       not prejudiced by the noncompliance. We find that under the circumstances of

       this case the trial court did not abuse its discretion by waiving compliance with

       the local rule.


                                       III. Final Order Vacated
[44]   Branham claims that the trial court erred by vacating its prior order granting its

       request for the withdrawal of proceedings supplemental as to Garrard and

       Sutphin. Branham claims that according to Indiana Trial Rule 54 once the trial

       court entered its order voluntarily dismissing the proceedings supplemental

       against Garrard and Sutphin, the order became a final appealable order that

       could not be vacated by a subsequent order.


[45]   Garrard and Sutphin have not participated in this appeal. Where an appellee

       fails to file a brief, we review the matter to determine if the appellant has made

       a prima facie showing of reversible error. Cox v. State, 780 N.E.2d 1150, 1162

       (Ind. Ct. App. 2002). Prima facie error has been described as error at first sight,

       on first appearance, or on the face of it. Id.


[46]   The record reveals only the trial court’s CCS entry reflecting that it was

       withdrawing the proceedings supplemental as to Garnishee Defendants Garrard

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       and Sutphin. Appellant’s App. p. 553. Trial Rule 54(B) provides in pertinent

       part that “A judgment as to one or more but fewer than all of the claims or

       parties is final when the court in writing expressly determines that there is no

       just reason for delay, and in writing expressly directs entry of judgment, and an

       appeal may be taken upon this or other issues resolved by the judgment, but in

       other cases a judgment, decision or order as to less than all the claims and

       parties is not final.” Here, there is no evidence in the record to suggest that the

       order withdrawing proceedings supplemental against Garrard and Sutphin is a

       final appealable order.


[47]   Indiana Trial Rule 53.4 addresses repetitive motions and motions to reconsider

       filed by a party or on the court’s own motion to revisit a court’s orders or

       rulings. “[A] trial court has inherent power to reconsider any of its previous

       rulings so long as the action remains in fieri.” Stephens v. Irvin, 734 N.E.2d 1133,

       1135 (Ind. Ct. App. 2000), trans. denied. Here, Branham sought voluntary

       withdrawal of proceedings supplemental against Garrard and Sutphin, but not

       all garnishee defendants, while all had incurred expense in defending the

       proceedings. The trial court was well within its power to reconsider its prior

       order. Branham has failed to establish prima facie error in the trial court’s

       decision to revisit the issue whether voluntary withdrawal of the proceedings

       supplemental against Garrard and Sutphin without allowing them to have

       notice and an opportunity to respond was proper.




       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 20 of 27
                                     IV. Due Process Violation
[48]   Next, Branham contends that certain of the trial court’s findings include

       language it suggests indicates that the trial court considered extrinsic evidence

       against which it was unable to defend. More specifically, Branham challenges

       the following language from the trial court’s February 4, 2013 order:

               25) Clearly, a typical T.R. 69(E) motion for proceedings
               supplemental is not a new civil action.
               26) That being said, Branham’s Motion is just as clearly not a
               typical motion for proceedings supplemental.
               ....
               54) If Branham was only attempting to inquire as to assets that
               the Garnishee Defendants might possess, in order to satisfy its
               judgment, it did so by applying a sledgehammer to a nail.
               ....
       Appellant’s Appendix pp. 70, 74.


[49]   Branham contends that it was denied procedural due process under article I

       section 12 of the Indiana Constitution and section 1 of the Fourteenth

       Amendment to the United States Constitution, namely because it had no notice

       that the trial court would consider its motion to be atypical or its actions akin to

       applying a sledgehammer to a nail, thus denying Branham the opportunity to

       defend against those considerations. Branham bases its substantive due process

       allegation brought under article I section 12 of the Indiana Constitution on the

       notion that the trial court’s use of those standards means that its decision was

       subjective and arbitrary.



       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 21 of 27
[50]   We do not accept Branham’s characterization of the trial court’s comments.

       The comments do not suggest the application of an unannounced standard.

       Rather, they reflect fair comment on the nature of this particular verified

       motion for proceedings supplemental. The verified motion for proceedings

       supplemental did more than was required under Indiana Trial Rule 69(E) in

       terms of alleging facts in support of its ownership of a debt, that the judgment

       debtor has insufficient funds to satisfy the judgment, and that the garnishee

       defendants possess or will possess property owed to the judgment debtor that

       could be applied toward satisfaction of the judgment. The motion alleged that

       the judgment debtor fraudulently concealed property and had attempted to

       defraud Branham. Further, the motion contained various allegations of

       fraudulent concealment, breach of fiduciary duty, and other violations of

       Indiana law against the garnishee defendants.


[51]   “The Fourteenth Amendment of the United States Constitution prohibits any

       state from depriving a person of life, liberty, or property without due process of

       law.” Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct. App. 2006). “The

       requirements of procedural due process apply only to the deprivation of

       interests encompassed by the Fourteenth Amendment’s protection of liberty

       and property.” Id. Both the federal and state constitutional provisions

       “prohibit state action which deprives a person of life, liberty, or property

       without the ‘process’ or ‘course of law’ that is due, that is a fair proceeding.”

       Indiana High Sch. Athletic Ass’n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222, 241

       (Ind. 1997).


       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 22 of 27
[52]   It is true that Indiana Trial Rule 69(E) does not have a page limitation or

       requirement that there be a separate motion for each garnishee. However, the

       trial court’s comments reflect that this particular motion for proceedings

       supplemental went beyond the scope of the trial rule by including new tort

       claims and a host of other allegations against the named garnishee defendants.

       The other tort allegations, above and beyond the allegation of the ownership of

       the judgment against Newland, were not reduced to judgment such that they

       qualified as judgments owned by Branham that could be enforced through

       proceedings supplemental. We find no reversible error here in the trial court’s

       characterization of those additional claims.


[53]   As for substantive due process, the federal and state due process analysis is

       identical. N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. Ap. 2000), trans.

       denied. “Substantive due process ensures that state action is not arbitrary or

       capricious regardless of the procedures used.” Id. “An arbitrary and capricious

       decision is one which is patently unreasonable. It is made without

       consideration of the facts and in total disregard of the circumstances and lacks

       any basis which might lead a reasonable person to the same conclusion.” City

       of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans.

       denied. We do not reweigh evidence in conducting our appellate review. Id.


[54]   We cannot characterize the trial court’s comments as arbitrary and capricious.

       The trial court acknowledged for the record that this particular proceedings

       supplemental went beyond those commonly adjudicated. We do not find the

       trial court’s judgment based upon those findings to be patently unreasonable.

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 23 of 27
[55]   Branham further argues that it was denied due process because Bator filed dual

       captioned pleadings that allegedly lack specificity as to which arguments

       applied to the 0001 case and the 517 case. Again, we disagree with Branham’s

       representations. Both actions arose out of the same facts, the transcript of the

       hearings includes both captions, and the CCS reflects entries cross-referencing

       orders and rulings from both actions. Bator’s response to Branham’s motion to

       withdraw contained arguments specifically addressing both actions. To be sure,

       Branham should not have been confused by Bator’s responses regardless of the

       labeling. Many if not all of the 0001 allegations were infused in the 517 verified

       motion; therefore, the responses were likely quite similar. We find no denial of

       due process here.


[56]   Next, Branham argues that it was denied due process because Bator, Garrard,

       and Sutphin’s filings incorporated by reference entire pleadings which lacked

       required specificity. Indiana Trial Rule 10(C) provides in pertinent part that

       “[s]tatements in a pleading may be adopted by reference in a different part of

       the same pleading or in another pleading or in any motion.” “The principal

       purpose of incorporation by reference is to avoid confusion, redundancy and

       repetition. When incorporating matters by reference, it is important that the

       reference be direct, clear and explicit in identifying the particular allegation of

       the pleading which is to be incorporated.” Stephen E. Arthur and Jerome L.

       Withered, 21 Ind. Practice, Civil Trial Practice § 13.21 (2d ed.).


[57]   Here, given the complexity of the issues raised and the responsive pleadings

       necessary to defend against the numerous allegations, we conclude that the trial

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 24 of 27
       court did not err by allowing the parties to incorporate entire pleadings by

       reference. To require otherwise would have defeated the principal purpose of

       the trial rule.


                           V. Limitation on Attorney Fee Award
[58]   Bator cross-appeals, arguing that the trial court erred by limiting the attorney

       fee award to the work done up to the point that Branham filed its motion to

       withdraw the proceedings supplemental. Bator contends that the legal work

       completed in opposition to the motion to withdraw led to the award of attorney

       fees and should have been included in the trial court’s calculation. On the other

       hand, Branham argues that to the extent the trial court correctly awarded any

       attorney fees at all, it did not err by imposing the limitation.


[59]   We note that Bator invokes review of the attorney fee award under a clearly

       erroneous standard. Reply Br. of Cross-Appellant p. 4. However, the cases

       cited by Bator are distinguishable in that the attorney fees under appellate

       review were awarded as sanctions for claims found to be frivolous,

       unreasonable, and groundless. See Davidson v. Boone Cnty., 745 N.E.2d 895

       (Ind. Ct. App. 2001); Kahn v. Cundiff, 533 N.E.2d 164 (Ind. Ct. App. 1989).

       Here, the attorney fees were awarded as a condition of withdrawal of the

       proceedings supplemental without prejudice.


[60]   Branham argues that Bator and the other garnishee defendants have suffered a

       negative judgment and that standard of review is applicable. We disagree. A

       judgment entered against a party who bore the burden of proof at trial is a

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 25 of 27
       negative judgment. Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d

       1, 4 (Ind. Ct. App. 2012). A negative judgment will be reversed on appeal only

       where it is contrary to law. Id. The payment of the garnishee defendants’

       attorney fees was a condition of the request for voluntary withdrawal of

       proceedings supplemental without prejudice. Thus, the garnishee defendants

       bore no burden of proof and suffered no negative judgment. They were allowed

       to supply the trial court with affidavits setting forth the time and rate for the

       legal work conducted in defending the proceedings supplemental.


[61]   In Highland Realty, our Supreme Court held that “[a]ppellate courts in Indiana

       will take jurisdiction of T.R. 41(A)(2) fee award appeals and decide in each case

       whether the trial court abused its discretion by awarding unreasonably high

       attorney’s fees.” 563 N.E.2d at 1274. The standard of review of such claims is

       for an abuse of discretion. Id. Although the question raised here is whether the

       attorney fee award is unreasonably too low because of the limitation on fees

       considered, we nonetheless review the trial court’s award for an abuse of

       discretion.


[62]   The trial court chose to limit the amount of legal work to be reimbursed to the

       effort to defend against the proceedings supplemental. This award was a

       condition imposed upon Branham by the trial court if it chose to seek a

       voluntary withdrawal of the proceedings supplemental without prejudice. The

       legal work applied to objecting to the voluntary withdrawal, was a different

       enterprise altogether. The garnishee defendants were no longer in the position

       of defending against the proceedings supplemental, but were vigorously

       Court of Appeals of Indiana | Opinion 06A01-1409-PL-399 | October 15, 2015   Page 26 of 27
       attempting to prevent the filing of subsequent proceedings supplemental in the

       matter if the withdrawal was without prejudice. “Requiring the plaintiff to

       reimburse the defendant for attorney’s fees before voluntary dismissal in a case

       like this one, where litigation has been long and costly, is simply a means of

       protecting the defendant from the consequences of the plaintiff’s choice to run

       up the legal services bill, then walk away and wait for a better day to refile its

       suit.” Id. at 1273. The trial court did not abuse its discretion.


                                                  Conclusion
[63]   In light of the above, we affirm the trial court’s judgment. In order to

       voluntarily withdraw the proceedings supplemental without prejudice,

       Branham must pay attorney fees as ordered by the trial court.


[64]   Affirmed.


       Riley, J., and Brown, J., concur.




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