MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Nov 21 2017, 10:42 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Ross J. Lerch
Fenton & McGarvey Law Firm, PSC
Louisville, Kentucky



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ozark Capital Corp.,                                    November 21, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        82A04-1706-CC-1233
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
Lynn K. Kurzendorfer,                                   The Honorable Mary Margaret
Appellee-Defendant.                                     Lloyd, Judge
                                                        Trial Court Cause No.
                                                        82D03-0312-CC-5287



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017      Page 1 of 8
                               STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Ozark Capital Corp. (Ozark), appeals the trial court’s denial

      of its verified motion for proceedings supplemental.


[2]   We reverse and remand with instructions.


                                                   ISSUE
[3]   Ozark presents us with two issues on appeal, which we restate as: Whether the

      trial court, during a proceedings supplemental hearing, can sua sponte vacate an

      underlying summary judgment, entered on October 27, 2004.


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 10, 2003, CACV of Colorado, LLC (CACV) was awarded damages

      in the amount of $5,198.73 by the National Arbitration Forum. CACV

      obtained this award against Appellee-Defendant, Lynn K. Kurzendorfer

      (Kurzendorfer), pursuant to an arbitration clause contained in the cardholder

      agreement consented to by Kurzendorfer for use of a credit card. On December

      9, 2003, CACV filed a Complaint against Kurzendorfer to confirm the

      arbitration award in its favor. On September 13, 2004, CACV filed a motion

      for summary judgment and designation of evidence. On October 27, 2004, the

      trial court conducted a hearing on CACV’s motion and “over [Kurzendorfer’s]

      objection, court grants same. [Kurzendorfer] orally requests [CACV] to provide

      information regarding original arbitrated credit card amount. Court grants

      same. [CACV] to supply requested information to [Kurzendorfer] on or before


      Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017   Page 2 of 8
      11/28/01.” (Appellant’s App. Vol. II, p. 3). The trial court’s entry of summary

      judgment noted that


              the [c]ourt having examined the pleadings and affidavits
              submitted in support of this motion and [Kurzendorfer], having
              failed to file any opposing affidavits raising material issues of
              fact, the [c]ourt now finds there is no genuine issue as to any
              material fact and therefore sustains [CACV’s] [m]otion and finds
              that there is no just reason for delay and [CACV] is entitled to
              judgment as a matter of law.


      (Appellant’s App. Vol. II, p. 26). No indication exists that CACV ever

      provided Kurzendorfer with the requested information.


[5]   On November 9, 2005, and March 3, 2006, respectively, CACV twice requested

      and was granted proceedings supplemental hearings. Each time, the trial court

      continued the hearing and ordered CACV to provide the requested information

      on the arbitrated credit card amount. Eventually, on January 30, 2007, the trial

      court dismissed the proceedings supplemental for CACV’s failure to respond to

      discovery. In 2012, Ozark purchased the judgment from CACV and was

      granted leave by the trial court on March 29, 2012, to join the cause as plaintiff.


[6]   Ozark pursued the judgment via numerous motions for proceedings

      supplemental, which were granted on November 19, 2010, March 23, 2015,

      May 9, 2016, and all were continued and eventually dismissed. On December

      9, 2016, Ozark filed its latest motion for proceedings supplemental, which the

      trial court scheduled for a hearing on March 23, 2017. During the hearing,

      Kurzendorfer responded to Ozark’s motion by informing the trial court that he

      Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017   Page 3 of 8
      had yet to receive the requested information of “a copy of credit card statement

      and signed receipts, something showing what this money was spent on[.]”

      (Transcript p. 6). After review, the trial court responded:


              [CACV] was ordered to provide it on or before November 29 of
              ’04, November 3 of ’04 the judgment was entered into the order
              book. January 23 of ’07, I ordered this again, ended up the P/S
              was just dismissed at a later date as opposed from this being
              answered and other times [CACV] counsel’s just failed to appear
              on the P/S, that was in July 1 of 2008. I understand you’re a
              later attorney on this, but the [c]ourt has been ordering this
              information for basically 12 ½ years and not obtained it, not [sic]
              it’s at the P/S stage. The [c]ourt has ordered it multiple times
              and never obtained this. The [c]ourt will deny your request.


                                                    ****


              Probably the summary judgment of 2004 should never have been
              granted since this information was outstanding and never
              supplied. The court on its own motion will reconsider the entry
              of judgment on October 27, ’04, since the information was
              requested on that date and not supplied and apparently I did not
              have enough information to grant this and should not have
              granted it, so I’m setting aside my judgment on that date.


      (Tr. pp. 7-8).


[7]   Ozark now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   At the outset, we note that Kurzendorfer has elected not to submit an appellee’s

      brief. When an appellee does not submit a brief, an appellant may prevail by

      Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017   Page 4 of 8
       making a prima facie case of error, a less stringent standard. Lewis v. Rex Metal

       Craft, Inc., 831 N.E.2d 812, 816 (Ind. Ct. App. 2005). Prima facie, in this

       context, is defined as “at first sight, on first appearance, or on the face of it.” Id.

       “The prima facie error rule protects this court and relieves it from the burden of

       controverting arguments advanced for reversal, a duty which properly remains

       with counsel for the appellee.” Id.


[9]    Proceedings supplemental to execution are enforced by verified motion alleging

       that “the plaintiff owns the described judgment against the defendant” and that

       the “plaintiff has no cause to believe that levy of execution against the

       defendant will satisfy the judgment[.]” Ind. Trial Rule 69(E); see also Ind. Code

       §§ 34-55-8-1 through -9. The only issue presented in proceedings supplemental

       is that of affording the judgment-creditor relief to which she is entitled under the

       terms of the judgment. Lewis, 831 N.E.2d at 817.


[10]   The trial court is vested with broad discretion in conducting proceedings

       supplemental. Hermitage Ins. Co. v. Salts, 698 N.E.2d 856, 858 (Ind. Ct. App.

       1998). Under T.R. 69, proceedings supplemental are initiated under the same

       cause number in the same court which entered judgment against the defendant.

       Id. Proceedings supplemental are summary in nature and the judgment-debtor

       is not afforded all the due process protections ordinarily afforded to civil

       defendants because the claim has already been determined to be a justly owed

       debt reduced to judgment. Id. A proceeding supplemental under T.R. 69 is not

       an independent action asserting a new or different claim from the claim upon

       which the judgment was granted, but is merely a proceeding to enforce the

       Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017   Page 5 of 8
       earlier judgment. Id. The T.R. 69 petition speaks only to how the claim is to

       be; whereas the complaint in the original action speaks to whether the claim

       should be satisfied. Id. Proceedings supplemental are merely a continuation of

       the underlying claim and may not be used to collaterally attack the underlying

       judgment. Id.


[11]   Although Indiana Trial Rule 60 governs relief from judgments or orders in civil

       cases, our supreme court has unequivocally held that this rule does not permit a

       trial court to sua sponte set aside a judgment, unless it is merely to correct a

       clerical mistake as permitted by subsection (A) of the rule. See State ex rel. Dale

       v. Superior Court of Boone Co., 299 N.E.2d 611, 611-12 (Ind. 1973). Otherwise, a

       judgment can only be set aside by a party filing a motion under subsection (B)

       of the rule and after a hearing has been conducted under subsection (D).


[12]   After “having examined the pleadings and affidavits submitted in support” of

       CACV’s motion for summary judgment, the trial court found “no just reason

       for delay” and entered summary judgment in favor of CACV as “a matter of

       law” on October 27, 2004. (Appellant’s App. Vol. II, p. 26). Thereafter, every

       time CACV filed a verified petition for proceedings supplemental, the trial court

       continued the hearing and ordered CACV to provide Kurzendorfer with the

       requested information of the arbitrated credit card amount. Eventually, on

       March 23, 2017, the trial court vacated the 2004 entry of summary judgment

       sua sponte because “apparently [the trial court] did not have enough information

       to grant this and should not have granted it[.]” (Tr. pp. 7-8).



       Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017   Page 6 of 8
[13]   Because there is no claim of clerical mistake in the 2004 summary judgment

       entry and Kurzendorfer never filed a motion to set aside the summary judgment

       pursuant to T.R. 60(B), the trial court lacked authority to set it aside sua sponte.

       Moreover, we perceive no basis upon which the summary judgment could have

       been set aside under T.R. 60(B). Kurzendorfer was fully aware of the summary

       judgment proceeding and was present at the hearing. Accordingly, there is no

       “mistake, surprise, or excusable neglect,” nor is there any “ground for a motion

       to correct error.” T.R. (60)(B)(1) & (2). There is no evidence of fraud,

       misrepresentation, or misconduct on the part of CACV or Ozark, nor is the

       judgment void or satisfied. See T.R. 60(B)(4), (6) & (7). 1 Rather, by

       continuously requesting the information establishing the arbitrated credit card

       amount after the entry of summary judgment, Kurzendorfer is attempting to

       collaterally attack the underlying summary judgment–which is not allowed in

       proceedings supplemental. See Hermitage Ins. Co., 698 N.E.2d at 858.

       Accordingly, as the trial court was without authority to sua sponte vacate the

       summary judgment, we reverse the trial court’s decision and we remand to the

       trial court to conduct proceedings supplemental in accordance with this

       opinion. 2




       1
         While T.R. 60(B)(8) provides that a court may relieve a party from a judgment based on any reason
       justifying relief, this provision only applies by motion of a party, which Kurzendorfer failed to file.
       2
         Ozark requests this court to not only reverse the trial court’s order to vacate the summary judgment, but
       also to reverse the trial court’s denial of Ozark’s request for issuance of a final order of garnishment. Our
       review of the transcript reflects that the trial court focused on Kurzendorfer’s allegation of missing evidence
       to vacate its earlier entry of summary judgment, rather than on the requirements of a garnishment order

       Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017             Page 7 of 8
                                               CONCLUSION
[14]   Based on the foregoing, we reverse the trial court’s order, vacating its entry of

       summary judgment sua sponte.


[15]   Reversed and remanded.


[16]   Robb, J. and Pyle, J. concur




       enumerated in I.C. § 34-55-8-7(a). Accordingly, we must remand to the trial court for evaluation of Ozark’s
       request for a final order and garnishment.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1706-CC-1233 | November 21, 2017         Page 8 of 8
