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 15, 2019
• 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 15 2019, 7:32 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

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

IN THE COURT OF APPEALS OF INDIANA

Jacob M. Pasternac and May 15, 2019 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 15, 2019 Page 1 of 11 Statement of the Case [1] This appeal returns to our Court following a remand to the trial court for a new

order containing specific findings of fact and conclusions thereon in its

preliminary injunction ruling involving a mobile home. The trial court’s order

following remand: (1) granted the preliminary injunction request sought by

Plaintiffs/Appellees, TWG Merrill, LLC, BPRS Green Acres, LLC, and

Weiner Green Acres, LLC (collectively, “Green Acres”); and (2) denied the

preliminary injunction request sought by Plaintiff/Appellee, Robert A. Harris

(“Harris”), after determining that he was no longer the owner of the mobile

home at issue.

[2] Defendants/Appellants, Jacob M. Pasternac (“Pasternac”) and Rainbow

Community, Inc. (“Rainbow Community”), appeal the trial court’s grant of the

preliminary injunction to Green Acres. Harris cross-appeals the trial court’s

denial of his request for a preliminary injunction. Because neither Green Acres

nor Harris met their burden of showing the necessary factors for obtaining a

preliminary injunction, we reverse the trial court’s grant of a preliminary

injunction to Green Acres and affirm the trial court’s denial of a preliminary

injunction to Harris.

[3] We reverse in part and affirm in part.

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

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 2 of 11 Cross-Appeal Issue: Whether the trial court abused its discretion when it denied Harris’ motion for a preliminary injunction.

Facts1 [4] This appeal involves a mobile home in the Green Acres mobile home

community. A non-party, Sandra Clements (“Clements”)—who had received

the mobile home from Harris, had the title to the mobile home, had lived in the

mobile home for over ten years, and had a mobile home site rental agreement

(“rental agreement”) containing a right-of-first-refusal clause2 with Green

1 The underlying facts of this appeal can be found in our previous memorandum decision. See Pasternac v. Harris, No. 46A05-1704-MI-816 (Ind. Ct. App. May 31, 2018). 2 The right-of-first-refusal clause in the rental agreement between Green Acres and Clements provided as follows: 15. Management Right of First Refusal: 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. The written notice must contain the names and addresses of the bona fide prospective purchasers, the proposed purchase price, and full and exact disclosure of the material terms and conditions of such sale (if available, a copy of the then existing purchase Contract or bill of sale shall be submitted to [Green Acres] with said notice). Upon actual receipt of the written notice, [Green Acres] shall have SEVENTY[-]TWO (72) hours thereafter, not including Saturdays, Sundays or Legal Holidays, in which to INSPECT THE MANUFACTURED HOME, 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 [Green Acres] rejects that offer or fails to notify Resident with Seventy[-] Two (72) hours, such failure shall be construed as a rejection and Resident may sell his or her manufactured home to the prospective purchaser named in the Notice upon the terms and conditions set forth so long as any prospective purchaser desiring to lease the Home Site meets the other reasonable requirements of [Green Acres], including those listed in the site rental agreement, the Community Rules and Regulations and/or the Requirements For Installing or Removing a Home From the Community Disclosure. . . . If [Green Acres] matches the terms of the offer, [Green Acres] shall pay Resident according to those terms within seven (7) days (Saturday, Sunday, or Legal Holidays shall not be included in the seven (7) day time requirement) upon Resident delivering clear title and possession of the manufactured home to [Green Acres]. If Resident sells the home in violation of this provision [or] this site rental agreement, this site rental agreement, the Community Rules and Regulations and/or the Requirements For Installing or Removing a Home From the Community Disclosure, or applicable law, 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. 3(b)).

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 3 of 11 Acres—sold the mobile home and gave the title to Pasternac and Rainbow

Community. Clements did so without providing written notice to Green Acres

or allowing Green Acres to exercise its right of first refusal as set forth in the

rental agreement. Thereafter, Pasternac went to the Indiana Bureau of Motor

Vehicles (“BMV”), had the title to the mobile home put in Rainbow

Community’s name, and then attempted to move the mobile home from Green

Acres’ premises. Pasternac was unable to remove the mobile home because an

employee of Green Acres physically blocked him from doing so.

[5] Thereafter, Harris and Green Acres filed a complaint against Pasternac and

Rainbow Community but not against Clements. In their two-count complaint,

they sought an injunction (Count 1) and damages based on a statutory violation

of counterfeiting, forgery, and/or fraud (Count 2). 3 As to Count 1, Harris and

Green Acres alleged that Harris was the owner of the mobile home at issue and

had not authorized the sale of it to Pasternac and Rainbow Community. At the

same time, they alleged that Green Acres was entitled to exercise its right of

first refusal pursuant to its rental agreement with Clements.4 For Count 1,

Harris and Green Acres sought injunctive relief and monetary damages.

Specifically, they sought: (1) to enjoin Pasternac and Rainbow Community

from removing the mobile home from Green Acres until ownership of the

3 Specifically, Harris and Green Acres alleged that Pasternac and Rainbow Community had violated INDIANA CODE § 35-43-5-2 and/or § 35-43-5-3. 4 As we noted in our prior memorandum decision, Harris and Green Acres “seemed to have [had] conflicting interests in their joint complaint.” See Pasternac, No. 46A05-1704-MI-816 at *2 n.1.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 4 of 11 mobile home had been determined by the trial court; (2) an order directing

Pasternac and Rainbow Community to rescind their title to the mobile home;

(3) an order allowing Green Acres to exercise its right of first refusal for the

purchase of the mobile home; (4) an award of monetary damages to Harris and

Green Acres to compensate them for any damages; and (5) court costs. As for

Count 2, Harris and Green Acres alleged that Pasternac and Rainbow

Community had fraudulently obtained a mobile home title from the BMV by

“misrepresenting their own interest[s] in the mobile home with full knowledge

that Plaintiffs’ [Harris and Green Acres] rights and ownership interests were

being fraudulently terminated and misrepresented.” (App. Vol. 2 at 7). For

Count 2, Harris and Green Acres alleged that they had “suffered a pecuniary

loss as a result of” Pasternac and Rainbow Community’s statutory violations,

and, pursuant to INDIANA CODE § 34-24-3-1, they sought treble damages,

attorney fees, and costs.

[6] The trial court initially issued a temporary restraining order, directing Pasternac

and Rainbow Community that they were not to remove the mobile home from

the Green Acres premises until the issues in the action were fully determined.

Thereafter, the trial court held a preliminary injunction hearing. During this

hearing, the parties agreed that the trial court should determine the underlying

ownership issue at the same time that it considered Harris’ and Green Acres’

requests for a preliminary injunction. The trial court ultimately determined that

Clements, not Harris, was the owner of the mobile home. The trial court’s

initial order, however, did not cite nor address the relevant factors for

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 5 of 11 determining whether to grant a preliminary injunction. Nor did the trial court’s

order contain specific findings of fact and conclusions of law as required by

Indiana Trial Rule 52(A).5 As a result, our Court remanded this case to the trial

court to issue a new order.

[7] Thereafter, the trial court issued an order containing specific findings of fact

and conclusions of law. The trial court again determined that Clements, not

Harris, was the owner of the mobile home. The trial court also addressed the

factors that Green Acres and Harris needed to show in order to obtain a

preliminary injunction, and it granted Green Acres’ request for a preliminary

injunction and denied Harris’ preliminary injunction request. Pasternac and

Rainbow Community now appeal the trial court’s grant of Green Acres’ request

5 The trial court’s initial order provided as follows: 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, [Pasternac], though not guilty of any fraud or actual misrepresentation, cannot be deemed to be a bona fide purchaser in good faith. If anything, [Pasternac’s] knowledge of the “Right of First Refusal” provision of the Site Rental Agreement as well as prior dealings with agents of [Green Acres] would have been sufficient to place [Pasternac] 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. THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that [Pasternac] shall cause the title to the mobile home, . . . to be restored to Ms. Sandy Clements within 10 days of its receipt of the $1,000.00 downpayment made to said owner; whereupon Green Acres may exercise its Right of First Refusal. Any determination of damages is hereby reserved for a future hearing to be scheduled at the request of the parties. Plaintiff’s [sic] request for assessment of attorney fees is DENIED. (App. Vol. 2 at 24-25).

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 6 of 11 for a preliminary injunction, and Harris cross-appeals the trial court’s denial of

his preliminary injunction request.

Decision [8] We first address Pasternac and Rainbow Community’s argument on appeal that

the trial court abused its discretion by granting Green Acres’ request for a

preliminary injunction.

[9] “The power to issue a preliminary injunction should be used sparingly, with

such relief granted only in rare instances in which the law and facts are clearly

within the movant’s favor.” City of Charlestown v. Charlestown Pleasant Ridge

Neighborhood Ass’n Corp., 111 N.E.3d 199, 204 (Ind. Ct. App. 2018). We review

a trial court’s grant or denial of a preliminary injunction for an abuse of

discretion. Leone v. Comm’r, Ind. Bureau of Motor Vehicles, 933 N.E.2d 1244,

1248 (Ind. 2010). To obtain a preliminary injunction, the moving party must

demonstrate by a preponderance of the evidence: (1) a reasonable likelihood of

success at trial; (2) the remedies at law are inadequate, thus causing irreparable

harm pending resolution of the substantive action; (3) the threatened injury to

the movant outweighs the potential harm to the nonmovant from the granting

of an injunction; and (4) the public interest would not be disserved by granting

the requested injunction. Id. If the movant fails to prove any one of these

factors, the trial court is required to deny the injunction. Id.

[10] When determining whether to grant or deny a preliminary injunction, the trial

court is required to issue special findings of fact and conclusions thereon. City

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 7 of 11 of Charlestown, 111 N.E.3d at 204; Ind. Trial Rule 52(A). We review the special

findings and conclusions for clear error. Ind. Trial Rule 52(A). In doing so, we

must determine whether the evidence supports the trial court’s findings and

whether the findings support the judgment. Clark’s Sales & Serv., Inc. v. Smith, 4

N.E.3d 772, 780 (Ind. Ct. App. 2014), trans. denied. “We will reverse the trial

court’s judgment only when it is clearly erroneous, that is, when our review of

the record leaves us with a firm conviction that a mistake has been made.”

Great Lakes Anesthesia, P.C. v. O’Bryan, 99 N.E.3d 260, 268 (Ind. Ct. App. 2018).

When assessing whether the judgement is clearly erroneous, we will not

reweigh the evidence or judge witness credibility. City of Charlestown, 111

N.E.3d at 204. Rather, we will consider only the evidence favorable to the

judgment and the reasonable inferences to be drawn therefrom. Id.

[11] Pasternac and Rainbow Community argue that the trial court abused its

discretion by granting Green Acres’ preliminary injunction request.

Specifically, they argue that Green Acres failed to prove that it met the

necessary factors that would entitle it to the extraordinary relief of a preliminary

injunction.

[12] In regard to Green Acres’ burden of showing the “reasonable likelihood of

success at trial” factor, the trial court concluded as follows:

Notwithstanding Harris’ inability to prevail at trial, Green Acres has proven that it can make its prima facie case against Pasternac and Rainbow Community (and Clements) on it[s] breach of contract case based upon the right of first refusal clause. Though Pasternac was never a party to that agreement, Pasternac was

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 8 of 11 aware of the Right of First Refusal Clause and chose to avoid insisting upon compliance by Clements; thereby taking the risk that Green Acres would seek to invalidate the sale and enforce its Right of First refusal. Though Green Acres may have [a] claim against Clements, it also has a viable interference claim against Pasternac and Rainbow Community. Therefore, Green Acres has met its burden of proving that it would be successful at trial.

(Trial Court’s Order from Remand at 9).6

[13] Here, the trial court concluded that Green Acres had shown that it would have

a reasonable likelihood of success at trial against Pasternac and Rainbow

Community for the claims of breach of contract and tortious interference with a

contract. Green Acres, however, did not raise either of these claims against

Pasternac and Rainbow Community in its underlying complaint in this case.

Thus, the trial court essentially concluded that Green Acres had a likelihood of

success at trial on potential or future claims. It is axiomatic that a party cannot

show a reasonable likelihood of success on a claim that was not raised before

the trial court.7 The trial court’s conclusion that Green Acres had shown a

reasonable likelihood of success at trial is clearly erroneous. Accordingly, we

reverse the trial court’s grant of the preliminary injunction to Green Acres. See

6 The parties did not file an amended appendix to include the trial court’s order that was issued following remand. 7 Even if Green Acres had raised a breach of contract claim against Pasternac and Rainbow Community in its complaint, Green Acres would not have a reasonable likelihood of success at trial because Pasternac and Rainbow Community were not parties to the rental agreement between Clements and Green Acres. See Young v. Tri-Etch, Inc., 790 N.E.2d 456, 459 (Ind. 2003) (holding that a contract did not impose any obligations or limitations on a person who was not a party to the contract), reh’g denied.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 9 of 11 Leone, 933 N.E.2d at 1248 (holding that failure to prove any one of the

preliminary injunction factors requires the trial court to deny a preliminary

injunction request); Stoffel v. Daniels, 908 N.E.2d 1260, 1272 (Ind. Ct. App.

2009) (concluding that the dismissal of a plaintiff’s underlying claim

“preempt[ed] the entry of injunctive relief” because the plaintiff did not show a

reasonable likelihood of success at trial).

[14] We now turn to Harris’ cross-appeal issue. Harris contends that the trial court

abused its discretion by denying his request for a preliminary injunction.

Because Harris bore the burden of proof when seeking a preliminary injunction,

he now appeals from a negative judgment. Accordingly, he “‘must demonstrate

that the trial court’s judgment is contrary to law; that is, the evidence of record

and the reasonable inferences therefrom are without conflict and lead

unerringly to a conclusion opposite that reached by the trial court.’” Great Lakes

Anesthesia, 99 N.E.3d at 268 (quoting PrimeCare Home Health v. Angels of Mercy

Home Health Care, LLC, 824 N.E.2d 376, 380 (Ind. Ct. App. 2005)).

[15] During the preliminary injunction hearing, the parties agreed that the trial court

should determine the underlying ownership issue at the same time that it

considered Harris’ and Green Acres’ requests for a preliminary injunction. The

trial court ultimately determined that the evidence presented during the hearing

showed that Harris had “effectively transferred” his “interest” and “ownership”

of the mobile home to Clements and that he had made an inter vivos gift. (Trial

Court’s Order from Remand at 8, 9). As a result, the trial court concluded that

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 10 of 11 Harris could not meet his burden of showing he was entitled to a preliminary

[16] Here, Harris challenges the trial court’s determination, made as finder of fact,

that he was no longer the owner of the mobile home. Harris contends that his

testimony showed that he had no intent to make an inter vivos gift of the mobile

home to Clements. Harris’ argument is essentially a request to reweigh the

evidence and the trial court’s determination of witness credibility, which we

will not do. See City of Charlestown, 111 N.E.3d at 204. Because the evidence

favorable to the judgment and the reasonable inferences to be drawn therefrom

support the trial court’s ownership determination, Harris cannot show that the

trial court abused its discretion by denying his preliminary injunction request.

Thus, we affirm the trial court’s denial of Harris’ request for a preliminary

[17] Reversed in part and Affirmed in part.

Riley, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019 Page 11 of 11