Court of Appeals of Indiana | Opinion 23A-MF-2092| February 29, 2024 Page 1 of 12

ATTORNEY FOR APPELLANT

W. Edward Skees

New Albany, Indiana

ATTORNEY FOR APPELLEE

Robert L. Barlow, II

Jenner Pattison & Sharpe

Madison, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Barbara Chitwood,

Appellant-Defendant,

v.

John Guadagnoli,

Appellee-Plaintiff.

February 29, 2024

Court of Appeals Case No.

23A-MF-2092

Appeal from the Jefferson Circuit 

Court

The Honorable Donald J. Mote, 

Judge

Trial Court Cause No.

39C01-0810-MF-699

Opinion by Judge Riley.

Judges Brown and Foley concur.

Riley, Judge.
Court of Appeals of Indiana | Opinion 23A-MF-2092| February 29, 2024 Page 2 of 12

STATEMENT OF THE CASE

[1] Appellant-Defendant, Barbara Chitwood (Chitwood), appeals the trial court’s 

grant of summary judgment in favor of Appellee-Plaintiff, John Guadagnoli

(Guadagnoli), on Guadagnoli’s Complaint to Foreclose Default Judgment.

[2] We reverse and remand.

ISSUE

[3] Chitwood presents this court with one issue on appeal, which we restate as: 

Whether there are genuine issues of material fact which preclude the entry of 

summary judgment. 

FACTS AND PROCEDURAL HISTORY

[4] On July 10, 2006, Guadagnoli filed a Complaint against Chitwood in Jefferson 

Circuit Court in Cause 39C01-0607-CC-000387 (Cause 387). On September 21, 

2006, Guadagnoli filed a motion for default judgment, which was granted the 

same day, and which awarded Guadagnoli a judgment in the amount of 

$19,536.63, plus statutory interest and attorney fees. On June 16, 2008, 

Guadagnoli moved for proceedings supplemental, with a hearing held on July 

21, 2008. No further action was taken until January 22, 2020, when the parties 

appeared for a pre-trial conference, at which time the trial court set deadlines to 

submit discovery and dispositive motions. Chitwood served discovery requests 

on January 28, 2020, and Guadagnoli responded to the requests on February 

19, 2020. Counsel for Chitwood withdrew on December 1, 2021. 
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[5] On October 14, 2008, Guadagnoli filed his Complaint to foreclose default 

judgment in the current Cause 36C01-0810-MF-000699 (Cause 699), in which 

he requested the trial court to order his default judgment foreclosed against 

Chitwood, to enter judgment against Chitwood in the sum of $25,349.80, plus 

statutory interest, and to order Chitwood’s real estate sold in satisfaction of his 

default judgment, after satisfying any liens preceding the judgment. On 

October 31, 2008, Chitwood filed Chapter l3 bankruptcy. She subsequently 

moved to avoid the judgment lien and an Order in this regard was entered by 

the Bankruptcy Court on January l, 2011. She failed to pay her monthly 

obligations under her Chapter l3 bankruptcy, and the bankruptcy proceeding 

was subsequently dismissed. 

[6] On April 24, 2019, Guadagnoli filed a motion to re-establish judicial lien, due 

to the bankruptcy case having been dismissed by the United States Bankruptcy 

Court for the Southern District of Indiana on July 24, 2012. On June 6, 2022, 

Chitwood filed a motion to dismiss the current Cause 699, to which 

Guadagnoli responded on June 14, 2022. Approximately one month later and 

after conducting a hearing, on August 24, 2022, the trial court denied 

Chitwood’s motion to dismiss. In its order, the trial court concluded that 

because “the enforcement of a judgment lien is a separate and distinct action 

from the execution of money judgment via proceeding supplemental,” 

Guadagnoli, “properly filed his Complaint to Foreclose Default Judgment here, 

separate and distinct from [Cause 387].” (Appellant’s App. Vol. II, pp. 10-11). 

Furthermore, because Guadagnoli’s “original default judgment was entered 
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September 21, 2006,” his foreclosure action filed on October 14, 2008, was 

“well within the statute of limitations. [Guadagnoli’s] [C]omplaint is therefore 

timely.” (Appellant’s App. Vol. II, p. 11). 

[7] On March 17, 2023, Guadagnoli filed a motion for summary judgment, 

together with a memorandum in support and designation of evidence, arguing 

that the designated evidence established that no genuine issue of material fact 

existed, and that Guadagnoli is entitled to a decree of foreclosure against 

Chitwood. On April 21, 2023, Chitwood filed her response, memorandum in 

support, and designation of evidence. Chitwood contended that the entry of 

summary judgment was precluded because (1) Guadagnoli had no standing to 

bring the “mortgage foreclosure action”;

1 (2) no judgment lien exists because 

“the judgment [in Cause 387] was vacated by implication”; and (3) if “a valid 

judgment exists under [Cause 387], the time to enforce it has expired.” 

(Appellant’s App. Vol. III, p. 16). On August 10, 2023, after a hearing, the trial 

court summarily granted Guadagnoli’s motion, and entered judgment in his 

favor. 

[8] Chitwood now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

1 Chitwood has abandoned this argument on appeal. 
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[9] Chitwood challenges the trial court’s grant of summary judgment to 

Guadagnoli. “The purpose of summary judgment is to terminate litigation 

about which there can be no factual dispute and which can be determined as a 

matter of law.” Lamb v. Mid Ind. Serv. Co., 19 N.E.3d 792, 793 (Ind. Ct. App. 

2014). “The party moving for summary judgment has the burden of making a 

prima facie showing that there is no genuine issue of material fact and that it is 

entitled to judgment as a matter of law.” Mint Mgmt., LLC v. City of Richmond, 

69 N.E.3d 561, 564 (Ind. Ct. App. 2017); Ind. Trial Rule 56(C). Summary 

judgment is a “high bar” for the moving party to clear in Indiana. Hughley v. 

State, 15 N.E.3d 1000, 1004 (Ind. 2014). If “the moving party satisfies this 

burden through evidence designated to the trial court, the non-moving party 

may not rest on its pleadings, but must designate specific facts demonstrating 

the existence of a genuine issue for trial.” Biedron v. Anonymous Physician 1, 106 

N.E.3d 1079, 1089 (Ind. Ct. App. 2018) (quoting Broadbent v. Fifth Third Bank, 

59 N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied), trans. denied. “A fact is 

material if its resolution would affect the outcome of the case, and an issue is 

genuine if a trier of fact is required to resolve the parties’ differing accounts of 

the truth, or if the undisputed material facts support conflicting reasonable 

inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (citation and 

quotation marks omitted).

[10] We review a court’s ruling on a summary judgment motion de novo, applying 

the same standard as the trial court. Hughley, 15 N.E.3d at 1003. “In 

conducting our review, we consider only those matters that were designated to 
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the trial court during the summary judgment stage.” Lowrey v. SCI Funeral

Servs., Inc., 163 N.E.3d 857, 860 (Ind. Ct. App. 2021), trans. denied. “In 

determining whether issues of material fact exist, we neither reweigh evidence 

nor judge witness credibility [but] accept as true those facts established by the 

designated evidence favoring the non-moving party.” Id. (citations omitted). 

“Any doubts as to any facts or inferences to be drawn from those facts must be 

resolved in favor of the nonmoving party.” Denson v. Est. of Dillard, 116 N.E.3d 

535, 539 (Ind. Ct. App. 2018). However, “[m]ere speculation is insufficient to 

create a genuine issue of material fact to defeat summary judgment.” Biedron, 

106 N.E.3d at 1089. In the summary judgment context, we are not bound by 

the trial court’s findings of fact and conclusions thereon, but they aid our review 

by providing the reasons for the trial court’s decision. Howard Cnty. Sheriff's 

Dep’t & Howard Cnty. 911 Commc’ns v. Duke, 172 N.E.3d 1265, 1270 (Ind. Ct. 

App. 2021), trans. denied. The party that lost in the trial court bears the burden 

of persuading us that the trial court erred. Biedron, 106 N.E.3d at 1089.

[11] Prior to turning to the merits of her contentions, we first must address 

Chitwood’s allegation that “Guadagnoli filed a motion for summary judgment 

in the underlying case without designating any evidence or supporting 

affidavits.” (Appellant’s Br. p. 14). 

[12] While Guadagnoli filed a designation of evidence together with his 

memorandum supporting the motion for summary judgment, no documents or 

affidavits were attached. “A party has the discretion to designate the material 

either in the summary judgment motion itself, in a separate filing, or in a brief 
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in support of or in opposition to the motion for summary judgment, and that 

party acts within its discretion as long as it informs the trial court of the specific 

material upon which it relies in support of its motion for summary judgment.” 

Riviera Plaza Investments, LLC v. Wells Fargo Bank, N.A., 10 N.E.3d 541, 546 (Ind. 

Ct. App. 2014). Guadagnoli’s memorandum referred to the default judgment 

and the order denying Chitwood’s motion to dismiss. Pursuant to Indiana Rule 

of Evidence 201(b)(5), “[a] court may judicially notice [....] records of a court of 

this state” and pursuant to Trial Rule 56(C), “[a]t the time of filing the motion

[of summary judgment] or response, a party shall designate to the court all parts 

of pleadings, depositions, answers to interrogatories, admissions, matters of 

judicial notice, and any other matters on which it relies for purposes of the 

motion.” While the record does not seem to contain any explicit statement that 

the trial court took judicial notice of these specific records mentioned in 

Guadagnoli’s memorandum, it seems clear, from the grant of summary 

judgment to Guadagnoli, that this essentially occurred. See also Riviera Plaza 

Investments, LLC, 10 N.E.3d at 546 (where we recognized that a trial court can 

take judicial notice in the context of a request for summary judgment).

II. Analysis

[13] Without attacking the validity of the underlying default judgment, Chitwood 

first contends that there is a genuine issue of material fact as to whether the 

default judgment was set aside in Cause 387 and therefore cannot be used as the 

underlying judgment to support Guadagnoli’s Complaint to foreclose judgment. 

Pointing to the chronological case summary (CCS) in Cause 387, Chitwood 
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maintains that “[t]he only explanation for the [c]ourt ordering discovery, 

dispositive motions, and responsive pleadings is [that] the default judgment 

under [Cause 387] was vacated.” (Appellant’s Br. p. 15).

[14] The CCS in Cause 387 reflects that the trial court conducted a hearing on the 

motion for proceedings supplemental on July 21, 2008. These proceedings 

were stayed by the trial court by CCS entry of January 1, 2011, due to

Chitwood’s bankruptcy filing, until July 24, 2012, when the bankruptcy case 

was dismissed. No action was undertaken in this Cause until January 22, 2020, 

when the trial court conducted a pre-trial hearing in which it set the dates for 

discovery and dispositive motions. Contrary to Chitwood’s argument, the CCS 

does not indicate that the default judgment was set aside or that she had made 

any filings pursuant to Indiana Trial Rule 60 to commence the vacating of the

default judgment. As Chitwood’s argument amounts to mere speculation, her 

contention “is insufficient to create a genuine issue of material fact to defeat 

summary judgment.” Biedron, 106 N.E.3d at 1089.

[15] In a related argument, Chitwood claims that Guadagnoli’s default judgment 

has expired. Focusing on Indiana Code § 34-55-9-2, Chitwood contends that 

since the default judgment was granted on September 21, 2006, and was not 

renewed within a ten-year period, the judgment expired on September 21, 2016. 

[16] Indiana Code section 34-55-9-2 provides that all final judgments for the 

recovery of money constitute a lien until the expiration of ten years after the 

judgment is issued. Although a judgment lien expires after ten years, a
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judgment still exists for at least another ten years. See Ind. Code § 34-11-2-12

(judgment is considered satisfied after twenty years). Nevertheless, we have 

been careful to note that Indiana Code section 34-11-2-12 does not indicate “‘an 

intention to utterly destroy judgments after the lapse of 20 years.’” U.S. Bank 

Trust Nat’l Assoc. as Trustee of American Homeowner Preservation Trust Series 2015 

A+ v. Dugger, 193 N.E.3d 1015, 1019 (Ind. Ct. App. 2022) (quoting Lewis v. Rex 

Metal Craft, Inc., 831 N.E.2d 812, 818 (Ind. Ct. App. 2005) (quoting Odell v. 

Green, 72 Ind. App. 65, 77, 122 N.E. 791, 791 (1919)). 

[17] Here, Guadagnoli’s default judgment was granted on September 21, 2006. 

Because the default judgment constituted the recovery of money, the judgment 

lien expired on September 21, 2016. However, because Chitwood filed 

bankruptcy proceedings on October 31, 2008, 11 U.S.C. § 362(a) provided for 

an automatic stay, restraining creditors, like Guadagnoli, with an injunction 

from taking actions against Chitwood and the property. The bankruptcy

proceeding was dismissed on July 24, 2012. Accordingly, as the proceedings 

were stayed for three years and nine months, Guadagnoli’s lien on Chitwood’s 

real property expired in June 2020.2

2 In his appellate brief, Guadagnoli adopts the trial court’s application of Indiana Code section 34-55-9-2 in 

its order denying Chitwood’s motion to dismiss, by treating the ten-year lien timeline as a statute of 

limitations, which the trial court considered tolled by the filing of Guadagnoli’s motion to foreclose on 

October 14, 2008. However, as Guadagnoli did not provide us with supporting precedents or persuasive 

arguments and we did not find any in our research, we reject this novel interpretation of Indiana Code 

section 34-55-9-2 as a statute of limitations and follow the jurisprudence set by the appellate bench. 
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[18] During the eleventh through twentieth years after judgment, no lien exists as to 

the debtor’s real estate. I.C. § 34-55-9-2(2); Lewis, 831 N.E.2d at 823 (Mathias, 

J., concurring); Borgman v. Aikens, 681 N.E.2d 213, 219 (Ind. Ct. App. 1997). 

However, with the permission of the trial court, execution against real estate 

may still issue, albeit without the benefit of a judgment lien. I.C. § 34-55-1-2;

See, e.g., I.C. § 34-55-1-3(1) (one of three kinds of execution of judgments is 

execution against property of judgment debtor); Williams v. Lyddick, 62 N.E.2d 

88, 89 (Ind. Ct. App. 1945). 

[19] While a judgment may be renewed before the expiration of the lien, we are 

unaware of any requirement to renew. Rather, it has been noted that 

“[b]ecause of the confusing complexity of execution and proceedings 

supplemental, and the added uncertainty caused by the two attendant decadelong time periods, most sophisticated judgment creditors ‘renew’ their 

judgments shortly before the expiration of the first (and each successive) decade 

after judgment.” Lewis, 831 N.E.2d at 823 (Mathias, J., concurring). Such 

renewal actions may take place ad infinitum. Town of New Chicago v. First State 

Bank of Hobart, 169 N.E. 56, 57 (Ind. Ct. App. 1929).

[20] Here, while the judgment lien has expired, Guadagnoli’s default judgment 

against Chitwood has not. And, as the designated evidence does not reflect that 

Guadagnoli renewed the judgment prior to the expiration of the judgment lien, 
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he must obtain leave of the trial court in order to execute on the judgment.3 See

I.C. § 34-55-1-2(a); see also Borgman, 681 N.E.2d at 213 (Ind. Ct. App. 1997)

(citing the predecessor of Indiana Code section 34-55-1-2 and determining that 

where judgment creditors failed to seek renewal of judgment prior to the end of 

ten years after the entry of judgment, execution of the judgment could only be 

had by leave of the court), trans. denied. Accordingly, we reverse the entry of 

summary judgment in favor of Guadagnoli, and we remand to the trial court for 

further proceedings.4

 

CONCLUSION

[21] Based on the foregoing, we hold that genuine issues of material fact exist which 

preclude the entry of summary judgment in favor of Guadagnoli. Therefore, 

we reverse and remand for further proceedings.

[22] Reversed and remanded.

3 “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 I.C. § 34-55-1-6; Lewis v. Rex Metal Craft, Inc., 

831 N.E. 2d 812, 823 n.13 (Ind. Ct. App. 2005). Since Guadagnoli failed to designate evidence sufficient to 

establish a renewal, summary judgment would be inappropriate. 

4 In her notice of appeal and in the conclusion of her appellate brief, Chitwood requests this court “to 

reverse, in its entirety, the trial court’s Order Denying Motion to Dismiss.” (Appellant’s Br. p. 16). Absent 

specific exceptions which are not present in this case, this court has jurisdiction only over final judgments and

appeals from interlocutory orders, and “[g]enerally the denial of a motion to dismiss under T.R. 12(B)(6) is 

not in itself a final appealable order.” Ind. Appellate Rule 5; Sch. City of Gary v. Cont’l Elec. Co., Inc., 301 

N.E.2d 803, 808 (Ind. Ct. App. 1973). To be a final appealable order, the order “must dispose of all issues to 

all parties, ending the particular case and leaving nothing for future determination.” Ramsey v. Moore, 959 

N.E.2d 246, 251 (Ind. 2012). By denying Chitwood’s motion to dismiss, the trial court allowed this case to 

go forward, clearly not disposing of the issues.
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Brown, J. and Foley, J. concur