New Palestine Plaza, Inc. v. Richards Real Estate, LLC (mem. dec.)

MEMORANDUM DECISION FILED Sep 21 2016, 8:07 am

Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Preeti Gupta Cody B. Coombs Indianapolis, Indiana Pritzke & Davis, LLP Greenfield, Indiana

IN THE COURT OF APPEALS OF INDIANA

New Palestine Plaza, Inc., September 21, 2016 Appellant-Defendant, Court of Appeals Case No. 30A05-1512-PL-2136 v. Appeal from the Hancock Circuit Court Richards Real Estate, LLC, The Honorable Richard Culver, Appellee-Plaintiff. Judge The Honorable R. Scott Sirk, Commissioner Trial Court Cause No. 30C01-1105-PL-747

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 1 of 6

STATEMENT OF THE CASE

[1] Appellant-Defendant, New Palestine Plaza, Inc. (New Palestine), appeals the

trial court’s imposition of a temporary restraining order following an

evidentiary hearing on Appellee-Plaintiff’s, Richards Real Estate, LLC

(Richards), motion for proceedings supplemental. [2] We dismiss.

ISSUE

[3] New Palestine raises one issue on appeal, which we restate as: Whether the

trial court abused its discretion by imposing a temporary restraining order

because Richards has no rights to New Palestine’s assets.

FACTS AND PROCEDURAL HISTORY

[4] On June 11, 2010, Richards and New Palestine entered into a purchase

agreement (Purchase Agreement) of certain commercial real estate at 12130

East Washington Street, Indianapolis, owned by New Palestine. Following the

closing of the transaction, Richards paid the purchase price but New Palestine

failed to deliver a duly executed and acknowledged warranty deed to the real

estate. On May 6, 2011, Richards filed his Complaint for damages against New

Palestine. Judgment on Richards’ Complaint was entered on March 7, 2014,

awarding Richards $60,000 in damages. New Palestine was also ordered to

execute a new deed with a corrected legal description of the real estate.

Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 2 of 6 [5] Meanwhile, on October 17, 2013, Greenfield Banking Company (Greenfield)

filed its Suit on Note and Foreclosure of Mortgage against New Palestine under

a different cause (Foreclosure Action). The Foreclosure Action asserted that

New Palestine had executed a note to Greenfield in the amount of $750,000.

To secure the payment of the note, New Palestine executed a mortgage on the

commercial real estate located at 12130 East Washington Street, Indianapolis

granting Greenfield a first lien on the property. To further secure the

obligations of New Palestine under the note, New Palestine executed an

assignment of leases, granting Greenfield a security interest in all rents arising

from the real estate. [6] New Palestine became delinquent in its monthly payments and Greenfield filed

the Foreclosure Action to demand payment of the delinquent amount.

Greenfield named Richards as a party in its Foreclosure Action with respect to

“any claim as to the respective judgment” in Richards’ cause against New

Palestine. (Appellant’s App. p. 25). On November 19, 2013, Richards filed its

Answer to Greenfield’s Foreclosure Action, admitting only that its lawsuit

against New Palestine existed. On February 17, 2015, Greenfield and New

Palestine executed an Agreed Judgment in the Foreclosure Action, in which the

parties agreed that all claims, liens, and interests in the rent payments on the

real estate are superior to any other claims. [7] On September 9, 2015, Richards filed its Motion for Proceedings Supplemental

following its judgment of March 7, 2014 against New Palestine in the current

cause, requesting to apply New Palestine’s “assets, income, profits, or other

Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 3 of 6

non-exempt property” to the satisfaction of the judgment. (Appellee’s App. p.

30). The trial court conducted a hearing on the motion on November 6, 2015.

During the hearing, New Palestine admitted to having transferred certain real

estate to other entities associated with New Palestine since the entry of the

judgment. It also admitted to owning a checking account which it used to pay

its obligations to Greenfield and to cover other expenses. At the close of the

evidence, the trial court took “the matter under advisement” and granted

Richards a temporary restraining order, ordering that

during the pendency of this action or until further order of this [c]ourt, [], [New Palestine] is restrained from transferring, encumbering, concealing, selling or otherwise disposing of any property, real, personal, or mixed, of any kind. This shall include but not be limited to any and all real property, and any bank accounts, without the written consent of the parties or the permission of the [c]ourt.

(Appellant’s App. p. 19). [8] New Palestine now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[9] New Palestine contends that the temporary restraining order “allows Richards

to have rights to [New Palestine’s] property, which includes rents[,]” in

violation of the Agreed Entry issued in the Foreclosure Action which granted

Greenfield “priority of all claims, liens and interests in the [r]ents.”

(Appellant’s Br. p. 6).

Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 4 of 6 [10] Initially, we note that a temporary restraining order is not within any class of

appealable interlocutory orders. Jacob Weinberg News Agency, Inc. v. City of

Marion, 322 N.E.2d 730, 735 n.4 (1975); see Ind. Appellate Rule 14(A)(5)

(providing that an interlocutory appeal of right may be taken only from the

“granting or refusing to grant, dissolving, or refusing to dissolve a preliminary

injunction”). Furthermore, the trial court was not requested to certify its order

in pursuit of a discretionary interlocutory appeal, nor was this court called upon

to accept a discretionary interlocutory appeal. See Ind. Appellate R. 14(B).

Accordingly, we are without jurisdiction to hear New Palestine’s appeal to the

temporary restraining order. [11] However, even if we had jurisdiction over the appeal—which we have not—

New Palestine would not be successful. By its temporary restraining order, the

trial court merely preserved the status quo between the parties until it could rule

on the motion for proceedings supplemental. While the order restrained New

Palestine from transferring its assets without the parties’ or the trial court’s

permission, it did not award any rights on those assets to Richards. Without

the trial court’s ruling on whether Richards can execute its judgment on New

Palestine’s assets, New Palestine’s claim is not ripe for our review.

Accordingly, we dismiss New Palestine’s appeal.

CONCLUSION

[12] Based on the foregoing, we dismiss New Palestine’s appeal as its claim is not

ripe for our review.

Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 5 of 6 [13] Dismissed. [14] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016 Page 6 of 6