Lewis v. Rex Metal Craft, Inc.

MATHIAS, Judge,

concurring.

The majority opinion provides an excellent discussion of the somewhat arcane *822legal history that is the background for the collection of civil judgments10 under Indiana law, and I fully concur in the majority opinion. Several points bear elaboration, however.

First, there are two important statutory time periods affecting judgments that are not renewed pursuant to Indiana Code seetion 34-11-2-11,11 the ten-year judgment lien period and the twenty-year life of judgment period. See Ind.Code § 34-55-1-2 (1999); 34-55-8-1 (1999). Each is important in its own way.

When a judgment requires the payment of money or delivery of real or personal property, the judgment may be enforced by execution12 as provided by Indiana Code chapter 34-55-1. Ind.Code § 34-55-1-1 (1999); see also Bahre v. Bahre, 248 Ind. 656, 661, 230 N.E.2d 411, 415 (1967). When execution of judgment requires the performance of an act, a certified copy of the judgment may be served upon the party against whom the judgment is given or the person who is required by law to obey the judgment. Id.

An execution must (1) issue in the name of the state, (2) be directed to the sheriff of the county, (8) be sealed with the seal of the court, and (4) be attested by the clerk of the court. Ind.Code § 34-55-1-5 (1999). An execution must also intelligibly refer to the judgment, stating (1) the court where and the time when rendered, (2) the names of the parties, (3) the amount of the judgment, and (4) the amount actually due on the judgment. Ind.Code § 34-55-1-6 (1999).

If an execution against the property of the judgment debtor is returned unsatisfied, or upon verified motion, a party may initiate a proceeding supplemental. Ind. Code § 34-55-8-1; see also Ind. Trial Rule 69(E) (2005). A proceeding supplemental is a continuation of the underlying claim, filed in the same court where the judgment was entered, under the same cause number, and serves to enforce a judgment. Keaton v. Ft. Wayne Neurosurgery, 780 N.E.2d 1183, 1185 (Ind.Ct. App.2008); Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1229 (Ind.Ct.App.1999). An Indiana court may only enforce a judgment from a foreign court through proceedings supplemental if the interested party domesticates the judgment first.

Throughout the ten-year period following judgment, a judgment lien attaches to the debtor's real estate located in the county where the judgment was entered or is later filed. Ind.Code § 34-55-9-2 (1999); Arend v. Etsler, 737 N.E.2d 1173, 1175 (Ind.Ct.App.2000) (the property subject to a judgment lien is linked to the real properly in the county where the judgment has been entered and indexed by the trial court); Muniz v. U.S., 129 Ind.App. 433, 441, 155 N.E.2d 140, 143 (1958) (in order to create a lien upon real estate, it is only necessary to enter and index the judgment in the county where the real estate is located). The purpose of the judgment lien is to protect subsequent purchasers of the encumbered property. Borgman v. Aikens, 681 NE.2d 213, 218 (Ind.Ct.App.1997), trans. denied.

*823During the eleventh through twentieth years after judgment, no lien exists as to the debtor's real estate. Ind.Code § 34-55-9-2(2); Borgman, 681 N.E.2d at 219. However, with the permission of the court, execution against real estate may still issue, albeit without the benefit of a judgment lien. Ind.Code § 84-55-1-2; Williams v. Lyddick, 116 Ind.App. 206, 212, 62 N.E.2d 88, 89 (1945). Proceedings supplemental are also available to a judgment creditor during the second decade. Ind.Code § 34-55-8-1.

Because of the confusing complexity of execution and proceedings supplemental, and the added uncertainty caused by the two attendant decade-long time periods, most sophisticated judgment ereditors "renew" their judgments shortly before the expiration of the first (and each successive) decade after judgment.13 See Hinds v. McNair, 153 Ind.App. 473, 477, 287 N.E.2d 767, 769 (1972); see also Willette v. Gifford, 46 Ind.App. 185, 189, 92 N.E. 186, 187 (1910) (the subsequent renewal of that judgment kept it alive). Such renewal actions may take place ad infinitum. Town of New Chicago v. First State Bank of Hobart, 90 Ind.App. 648, 644, 169 N.E. 56, 57 (Ind.Ct.App.1929).

It is important to note that Lewis did not challenge Rex Metal's renewals of the underlying judgment. Op. at 821. Rex Metal's renewals were accomplished by way of motion practice under the cause number of the underlying action rather than by way of a separate cause of action. Appellant's App. pp. 5-6. I believe that renewal of judgment exists only as a separate action that must be filed as a new and separate cause of action on the original judgment. See Stookey v. Lonay, No. 03-2208, 104 Fed.Appx. 583, 584, 2004 U.S.App. LEXIS 13598 at *2 (7th Cir. June 29, 2004) (citing Town of New Chicago, 90 Ind.App. at 648, 169 N.E. at 57) (Indiana law considers a judgment to be a debt of record on which a "separate" action may be based.). There are many statutory and public policy reasons to "renew" judgments in this manner, but as Rex Metal's renewal process was not challenged, there is no need to consider them at this time.

Under the facts and circumstances of this case, Rex Metal needed no permission of the court to conduct proceedings supplemental.

. A judgment is a debt of record, created by decree of a court, upon which an action may be maintained. Dock v. Tuchman, 497 N.E.2d 945, 946 (Ind.Ct.App.1986), trans. denied; Town of New Chicago v. First State Bank of Hobart, 90 Ind.App. 643, 644, 169 N.E. 56, 57 (1929).

. Ind.Code § 34-11-2-11 (1999)

. One may execute judgment against the property of the judgment debtor, person of the judgment debtor, or for the delivery of the possession of real or personal property. Ind. Code § 34-55-1-3 (1999).

. A renewal complaint pleads the existing judgment, alleges liquidated, accrued interest, and seeks entry of a new judgment in the amount of the original judgment. See Ind. Code 34-55-1-6.