New Palestine Plaza, Inc. v. Richards Real Estate, LLC (mem. dec.) ( 2016 )

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.
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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.
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[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
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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).
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[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.
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[13] Dismissed.
[14] Bailey, J. and Barnes, J. concur
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