Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation

55 N.E.3d 870, 2016 WL 3058302, 2016 Ind. App. LEXIS 180
CourtIndiana Court of Appeals
DecidedMay 31, 2016
Docket18A02-1508-PL-1161
StatusPublished

This text of 55 N.E.3d 870 (Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation, 55 N.E.3d 870, 2016 WL 3058302, 2016 Ind. App. LEXIS 180 (Ind. Ct. App. 2016).

Opinion

BROWN, Judge,

[1] Larry M. New, and Heritage Medical Group, Inc., fik/a Heritage Medical Services, Inc. (“Heritage,” and collectively with New, the “Appellants”) appeal the trial court’s Order on the Summary Judgment Motions Filed by the Parties granting summary judgment in favor of T3 Investments Corporation (“T3”) and denying the Appellants’ summary judgment motion. The Appellants raise one issue which we revise and restate as whether the court erred in granting summary judgment in favor of T3 and denying the Appellants’ cross-motion.for summary judgment. We affirm.

Facts and Procedural History

[2] On March 1, 2001, Heritage, T3, Inverness Corporation (“Inverness”), and Dennis Streeter, organized Hillcrest Estates, LLC (“Hillcrest”) and Heritage was named the managing member. New is the President of Heritage. On or about that same day, Hillcrest executed a promissory note (“Note”) in connection with a loan (the “Loan”) from U.S. Bank National Association frk/a Firstar Bank, NA (the “Bank”) in the original principal amount of $1,740,000. As collateral, . Hillcrest pledged certain real and personal property located in Liberty, Indiana as described in an Open-End Mortgage of Real Property, Security Agreement of Personal Property, and Assignment of Rents and Profits dated March 9, 2001 (the “Mortgage”).. Sycamore Springs, LLC (“Sycamore Springs”), a rehabilitation care facility on the property, leased the property from Hillcrest. As a condition of making the Loan evidenced by the Note, the Bank obtained commercial guaranties, dated March 5, 2001, from seven individuals and entities, including P. Eric Turner, who was- President of T3, Turner’s brother Kyle, New, John W. Bar-tie, Heritage, Inverness, and T3 (collectively, the “Guarantors”). •

[3] In April 2004, the Guarantors executed reaffirmations of the guaranties. The Guarantors each agreed to be jointly and severally liable for the full amount of Hillcrest’s indebtedness under the Note, which was also amended in 2004. That summer, the Bank agreed to renew or extend the Toan upon receipt of financial information from Hillcrest and the Guarantors. Financial information was provided to the Bank, but the Bank did not follow through with the renewal or extension of the Toan, which matured in August 2004.

[4] On July 14, 2005, the Bank commenced' an action against the Guarantors *873 in the Wayne .-Superior Court (the “Guarantor Lawsuit”), in which it sought recovery from the Guarantors for the outstanding principal on, the Toan. On October :19, 2007, the Bank commenced a foreclosure action - against Hillcrest. and Sycamore Springs in the Union Circuit Court (the “Foreclosure Lawsuit”), seeking foreclosure of the real property and replevin of the personal property that was pledged as collateral for the Toan.

[5] On October 10, 2008, the Bank, Hillcrest and the Guarantors entered into a Settlement and Mutual Release Agreement (the “Settlement Agreement”), which provided in part as follows:

This Settlement and Mutual Release Agreement (the “Agreement”) is entered into as of October 10, 2008, by and between U-.S. Bank National Association f/k/a Firstar Bank, N.A. (“Bank”), and Hillcrest Estates, LLC (“Hillcrest”), and P. Eric Turner, Kyle D. Turner, Tarry M. New, John W. Bartle, Heritage Medical Group, Inc., Inverness Corporation and T-3 Investments Corporation (collectively “Guarantors”) and states as follows:
í{» ⅜¶ ⅜ ⅜ ⅜
WHEREAS, the parties hereto believe that resolution of the Loan, the Foreclosure Lawsuit and the Guarantor Lawsuit under the terms and conditions set forth herein is in their mutual best interest and avoids the uncertainty and costs of further litigation; and
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
# ⅝ ⅜? # ⅝
2. Agreed Judgments. Simultaneously with the execution of the Agreement, counsel for Hillcrest and the Guarantors, other than Inverness which is being . released, shall execute “Agreed Judgments” against Hillcrest and the Guarantors ... which may be entered against them in the Foreclosure Lawsuit and the Guarantor Lawsuit under the terms and conditions set forth herein.
3. Agreed Judgments Terms/Filings
(a) Agreed Guarantor Judgment. Judgment against the Guarantors, other than Inverness ..., shall be in the form '■ attached as Exhibit A hex-eto. It is acknowledged by the parties • that the amounts reflected as owing are calculated as of October 20,2008....
(b) Agreed Foreclosure Judgment. Judgment against Hillcrest in the Foreclosure Lawsuit, shall be in the form attached as Exhibit B hereto. It is acknowledged by the parties that the amounts stated as owing are calculated as of November 18, 2008....
‡ ⅜ ⅜ ‡ ⅜
5. Entry of Agreed Judgments. In the event the Bank has not received Payment, as defined below, then the Bank may proceed to have the Agreed Judgments entered as follows:
(a) the Agreed Guarantor Judgment may be entered any time on or after October 20,2008; and
(b) the Agreed Foreclosure Judgment may be entered any time on or after November 18, 2008.
6. Payment. “Payment” shall be in the amount of $2,264,317.80, as of September 23, 2008, as reflected on the attached Exhibit C together with per diem interest_
7. Actions Upon Payment. Upon receipt of the Payment prior to entry of the Agreed Guarantor Judgment, the parties shall file stipulations and orders for the dismissal of the Guarantor Lawsuit and the Foreclosure Lawsuit in the forms attached as Exhibits D and E respectively. In the event Payment is made after entry of the Guarantor Judgment but before entry of the Foreclo *874 sure Judgment, the Bank shall provide a satisfaction of the Guarantor Judgment and counsel for the parties shall submit a Stipulation for Dismissal-of the Foreclosure Lawsuit in the form attached as Exhibit E.
*****
10. Mutual Release.

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Bluebook (online)
55 N.E.3d 870, 2016 WL 3058302, 2016 Ind. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-m-new-and-heritage-medical-group-inc-fka-heritage-medical-indctapp-2016.