Jacob M. Pasternac and Rainbow Community, Inc. v. Robert A. Harris, TWG Merrill, LLC, BPRS Green Acres, LLC, and Weiner Green Acres, LLC (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2018
• Docket: 46A05-1704-MI-816
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2018, 9:21 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR Kristin A. Mulholland APPELLEES/CROSS- Crown Point, Indiana APPELLANTS Mary P. Lake LaPorte, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacob M. Pasternac and May 31, 2018 Rainbow Community, Inc., Court of Appeals Case No. Appellants-Defendants, 46A05-1704-MI-816 Appeal from the LaPorte Superior v. Court The Honorable Michael S. Robert A. Harris, TWG Merrill, Bergerson, Judge LLC, BPRS Green Acres, LLC, Trial Court Cause No. and Weiner Green Acres, LLC, 46D01-1702-MI-229 Appellees/Cross-Appellants-Plaintiffs.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 1 of 9 Statement of the Case [1] Jacob M. Pasternac (“Pasternac”) and Rainbow Community, Inc. (“Rainbow

Community”) appeal the trial court’s grant of the preliminary injunction

requested by Robert A. Harris, TWG Merrill, LLC, BPRS Green Acres, LLC,

and Weiner Green Acres, LLC (collectively, “Harris and Green Acres”).

Harris and Green Acres also cross-appeal. We need not address Harris and

Green Acres’ cross-appeal because we find Pasternac and Rainbow

Community’s appeal argument that the trial court failed to make findings of

fact and conclusions thereon as required by Indiana Trial Rule 52(A)

dispositive. We reverse and remand with instructions for the trial court to enter

a new order containing findings of fact and conclusions thereon within thirty

days. At that time, the parties may then amend their briefs as needed.

[2] We reverse and remand with instructions.

Issue Whether the trial court abused its discretion when it granted Harris and Green Acres’ motion for a preliminary injunction.

Facts [3] Green Acres Manufactured Housing Community (“Green Acres”) is a mobile

home community in Michigan City. Harris bought a mobile home (“Mobile

Home”) at Green Acres in 2002 so that his girlfriend, Sandra Clement

(“Clement”), could live there. Starting in February 2002, Clement lived in the

Mobile Home, even though Harris retained ownership of it. In April of 2007,

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 2 of 9 Harris paid off the lienholder and received the original certificate of title,

#02079042054. At some point thereafter, he signed and printed his name in the

section “SELLER MUST COMPLETE”. (Appellees’ Ex. 5). Next to the

“Signature of the Seller” box, he wrote that his “Position” was “owner,” and

then he crossed out “owner and wrote “seller.” (Appellees’ Ex. 5).

[4] Every two years while she lived in the Mobile Home, Clement signed a lease

with Green Acres to continue living in the community. On October 10, 2014,

Clement signed one such lease agreement, titled “Manufactured Home Site

Rental Agreement” (“Rental Agreement”). The Rental Agreement included a

right of first refusal provision that specified:

If Resident desires to sell his or her manufactured home located within the Community, Resident shall serve written notice upon [Green Acres] of Resident’s attempt to sell his or her manufactured home. . . . Upon actual receipt of the written notice, [Green Acres] shall have seventy[-]two (72) hours Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 3 of 9 thereafter . . . in which to inspect the manufactured home site, shed and attachments, and to notify Resident of [Green Acres’] intent to purchase based upon the purchase price, terms and conditions as set forth in said offer. . . . If Resident sells the home in violation of this provision [or] this site rental agreement, . . . then the buyer will be deemed to be a Trespasser and will be evicted from [Green Acres’] property and the Resident will remain responsible for the payment of home site fee(s) and other charges through the end of the initial term of Agreement or, after this Agreement is renewed on a month-to-month basis, the rental period.

(Appellees’ Ex. 1).

[5] In September of 2016, Pasternac, the owner and President of Rainbow

Community, Inc. (“Rainbow Community”), approached Clements about

buying the Mobile Home. Clements possessed the Certificate of Title for the

home, which was in the state depicted above—carrying Harris’s printed name

and signature and the title “owner” crossed out with the title “seller” written

above it. (Appellees’ Ex. 5). The boxes for “Date of sale” and “Selling price”

remained blank. (Appellees’ Ex. 5).

[6] On October 18, 2016, Clements executed a “Mobile Home Sales Contract,”

selling the Mobile Home to Rainbow Community. (Appellees’ Ex. 6). The

Mobile Home Sales Contract noted “title owner reads Robert A. Harris[.]

Actual owner and legal seller is Sandra L. Clements.” (Appellees’ Ex. 6).

Clements and Rainbow Community also executed a handwritten “Bill of Sale.”

(Appellees’ Ex. 7). The Bill of Sale provided that the agreement was between

“Robert A. Harris . . . Actual owner/seller an[d] in possession of title Sandra L.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 4 of 9 Clements.” (Appellees’ Ex. 7). Clements signed and fingerprinted the Mobile

Home Sales Contract, Bill of Sale, and Certificate of Title and gave the

Certificate of Title for the Mobile Home to Pasternac. She did not notify Harris

about this transaction or ask for his permission for the sale, and she did not

notify Green Acres so that Green Acres could exercise the right of first refusal

provision of the Rental Agreement. Pasternac submitted the Bill of Sale to the

Bureau of Motor Vehicles (“BMV”), and the BMV issued a title to the Mobile

Home in Rainbow Community’s name on December 1, 2016.

[7] Phil Stebbins (“Stebbins”), the Community Manager at Green Acres became

aware of Clements’ sale of the Mobile Home in December 2016. On December

16, 2016, contractors who worked for Pasternac attempted to move the Mobile

Home from Green Acres. However, Stebbins, at the instruction of his

supervisor, moved his truck so that it effectively blocked the Mobile Home from

being moved.

[8] Pasternac then obtained a mobile home move permit for the Mobile Home on

January 31, 2017. The permit listed Harris as the owner of the Mobile Home

and Rainbow Community as the purchaser. After obtaining the permit,

Pasternac tried a second time to move the Mobile Home on February 3, 2017.

Stebbins again prevented the move by blocking the Mobile Home with his car.

[9] The same day as Pasternac’s second attempt to move the Mobile Home,

February 3, 2017, Harris and Green Acres filed a complaint requesting damages

and a permanent injunction preventing Pasternac and Rainbow Community

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 5 of 9 from removing the Mobile Home and allowing Green Acres to exercise its right

of first refusal. In the complaint, Harris and Green Acres alleged that Clements

had never held an ownership interest in the Mobile Home, that Pasternac and

Rainbow Community had obtained a title for the Mobile Home from the

Indiana BMV by fraudulently misrepresenting their ownership interest, and that

Pasternac and Rainbow Community had obtained the mobile home permit

through fraudulent means. Harris and Green Acres further alleged that

Pasternac and Rainbow Community had refused to relinquish the “false and

fictitious title” and had continued to attempt to remove the Mobile Home

“without right.” (App. Vol. 2 at 8). Harris and Green Acres also filed a

petition for a temporary restraining order preventing Pasternac and Rainbow

Community from moving or attempting to remove any part of the Mobile

Home until the case could be resolved.1

[10] The trial court held a hearing on the petition for a temporary restraining order

on February 14, 2017.2 At the hearing, Harris testified that he had signed the

Certificate of Title because he had wanted Clements to be able to have the

Mobile Home if he died. He did not remember when he had signed it, or

1 Notably, Harris and Green Acres seemed to have conflicting interests in their joint complaint. While both sought to prevent Pasternac and Rainbow Community from removing the Mobile Home and both wanted Pasternac and Rainbow Community to relinquish the “false and fictitious title,” Harris claimed that he rightfully owned the Mobile Home. If the trial court were to order the title reinstated in Harris’s name, the would not be able to allow Green Acres to exercise its right of first refusal. 2 The Chronological Case Summary lists the February 14, 2017 hearing as a hearing on the motion for a temporary restraining order, but at the hearing the trial court and the parties agreed to address the motion for a preliminary injunction and the issue of “ownership” of the Mobile Home. (Tr. Vol. 2 at 5).

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 6 of 9 whether he had given the title to Clement, but he admitted that he “must have”

done so. (Tr. Vol. 2 at 40). He also said that he had “absolutely not” intended

his signature to create “a transfer” and that he had not authorized Clements to

sign the title herself or to transfer it to anyone else. (Tr. Vol. 2 at 31).

[11] Pasternac testified and acknowledged that he had known about Green Acres’

right of first refusal. He said that he had left it up to Clements to inform Green

Acres about the sale because “the contract [was] between [Green Acres] and

her.” (Tr. Vol. 2 at 98).

[12] At the conclusion of the hearing, the trial court entered an order ruling that:

Notwithstanding the fact that the Plaintiff, Robert A. Harris, created the situation wherein his interest in the [Mobile Home] had been effectively transferred to Ms. Sandy Clements, the defendant, though not guilty of any fraud or actual misrepresentation, cannot be deemed to be a bona fide purchaser in good faith.

If anything, the defendant’s knowledge of the “Right of First Refusal” provision of the Site Rental Agreement as well as prior dealings with agents of the Plaintiff would have been sufficient to place the defendant on notice that, in addition to buying a mobile home, he was running the risk of “buying a lawsuit[,”] which he could have avoided by the placement of a telephone call to the offices of the Plaintiff, Green Acres.

(App. Vol. 2 at 24-25). Based on this reasoning, the trial court ordered the title

for the Mobile Home to be restored to Clements, “whereupon Green Acres may

exercise its Right of First Refusal.” (App. Vol. 2 at 25). The trial court thereby

entered a “general judgment on the Complaint” and a “Preliminary Injunction

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 7 of 9 against the Defendants,” although it reserved the determination of damages for

a future hearing.3 (App. Vol. 2 at 24). Pasternac and Rainbow Community

now appeal this interlocutory order, and Harris and Green Acres cross-appeal.

Decision [13] On appeal, Pasternac and Rainbow Community argue that the trial court

abused its discretion when it granted Harris and Greenacres’ request for a

preliminary injunction because the court did not make special findings of fact

and conclusions thereon to support its judgment.

[14] The grant or denial of a request for a preliminary injunction rests within the

sound discretion of the trial court, and our review is limited to whether there

was a clear abuse of that discretion. City of Gary, Ind. v. Majestic Star Casino,

LLC, 905 N.E.2d 1076, 1082 (Ind. Ct. App. 2009), trans. denied. As Pasternac

and Rainbow community note, a trial court is required to make special findings

of fact and conclusions of law when determining whether to grant a preliminary

injunction. Id.; Ind. Trial Rule 52(A)(1). When a trial court has made findings

of fact and conclusions of law, our role as a reviewing court is to assess whether

the trial court’s findings support the judgment. Id. “We will reverse the trial

court’s judgment only when it is clearly erroneous. Findings of fact are clearly

3 The court also entered an order granting Green Acres’ request for a temporary restraining order.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 31, 2018 Page 8 of 9 erroneous when the record lacks evidence or reasonable inferences from the

evidence to support them.” Id.

[15] Here, the trial court failed to make specific findings of fact and conclusions of

law as required by law. This impedes our ability to complete our task as a

reviewing court. Accordingly, we conclude that the trial court abused its

discretion in granting the preliminary injunction. We reverse the trial court’s

order and remand with instructions for the trial court to enter a new order

including findings of fact and conclusions of law within thirty days. At that

point, the parties may amend their briefs as needed.4

[16] Reversed and remanded with instructions.

[17] Riley, J., and Robb, J., concur.

4 These findings of fact and conclusions of law should include the factors for granting a preliminary injunction and should address ownership of the Mobile Home in the context of Indiana law, which provides that “‘[c]ertificate of title is not of itself proof of ownership or legal title to [a] vehicle[, and] [a] person may have legal title in a vehicle even though he does not possess a certificate of title.’” Roy Bayer Trust v. Red Husky, LLC, 13 N.E.3d 415, 418 (Ind. Ct. App. 2014) (quoting Pekins Ins. Co. v. Charlie Rowe Chevrolet, Inc., 556 N.E.2d 1367, 1370 (Ind. Ct. App. 1990)) (emphasis added). “‘Rather, certificates of title . . . are indicia of ownership and control.’” Id. (quoting Brackin v. Brackin, 894 N.E.2d 206, 212 (Ind. Ct. App. 2008)). “Standing alone, a certificate of title raises an inference of legal title in the holder subject to contradiction by other evidence.” Brackin, 894 N.E.2d at 212. Also on remand, the trial court should assess whether Green Acres has a remedy at law for Clements’ violation of its right of first refusal. See Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 712 (Ind. Ct. App. 2001) (noting that one of the factors for granting an injunction is “whether plaintiff’s remedies at law are inadequate”).

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