O'Neal Flat Rolled Metals, Llc. v. Major Tool and Machine, Inc., Tishman Construction Corp., Permasteelisa N.A. Corp.

• Court: Indiana Court of Appeals
• Decided: January 26, 2015
• Docket: 49A04-1312-PL-624
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 26 2015, 9:54 am Memorandum Decision shall not be 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE: Stephen R. Pennell ATTORNEYS FOR THE PORT Stuart & Branigin LLP AUTHORITY OF NEW YORK & Lafayette, Indiana NEW JERSEY AND ONE WORLD Jason L. Ott TRADE CENTER, LLC Samuel R. Grego Robert S. Schein Pittsburgh, Pennsylvania Bryan S. Strawbridge Krieg Devault LLP Carmel, Indiana Libby Y. Goodnight Indianapolis, Indiana ATTORNEYS FOR TISHMAN CONSTRUCTION CORP., MAJOR TOOL AND MACHINE, INC., AND PERMASTEELISA NORTH AMERICA CORP. James E. Rossow, Jr. Joshua W. Casselman Rubin & Levin, P.C. Indianapolis, Indiana

Court of Appeals of Indiana | Memorandum Decision 49A04-1312-PL-624 | January 26, 2015 Page 1 of 5 IN THE COURT OF APPEALS OF INDIANA

O’Neal Flat Rolled Metals, LLC, January 26, 2015

Appellant-Defendant, Court of Appeals Cause No. 49A04-1312-PL-624 v. Appeal from the Marion Superior Court, The Honorable Timothy W. Oakes, Judge, 49D13-1305-PL-16604 Major Tool and Machine, Inc., Tishman Construction Corporation, Permasteelisa North America Corp., The Port Authority of New York and New Jersey, and World Trade Center, LLC, Appellee-Plaintiff

May, Judge.

[1] O’Neal Flat Rolled Metals LLC (“O’Neal”) appeals the dismissal of its

Amended Complaint against Major Tool and Machine, Inc. (“Major Tool”),

Tishman Construction Corporation (“Tishman”), Permasteelisa North America

Corp. (“Permasteelisa”), The Port Authority of New York and New Jersey

(“The Port Authority”), and One World Trade Center (“One WTC”). As the

bankruptcy court has exclusive jurisdiction over the property O’Neal alleges the

defendants converted, we affirm.

Court of Appeals of Indiana | Memorandum Decision 49A04-1312-PL-624 | January 26, 2015 Page 2 of 5 Facts and Procedural History [2] This lawsuit arose out of a dispute over steel materials O’Neal supplied for the

construction of One WTC. In December 2009, in New York, American

Architectural, Inc. (“AAI”) entered into contracts with Tishman, the general

contractor, to install a cable net wall, among other things, at One WTC. AAI

hired Major Tool as a subcontractor to perform steel fabrication services. AAI

entered into a contract with O’Neal to purchase steel materials, and the

materials were shipped to Major Tool in Indianapolis. That contract did not

address when title to the steel materials passed from O’Neal to AAI.

[3] AAI and O’Neal executed a secured promissory note that provided AAI

promised to pay O’Neal $761,125.39. The note was secured by a security

interest AAI granted to O’Neal, with AAI as the debtor and O’Neal as the

secured party. A security agreement AAI and O’Neal executed provided AAI

was granting O’Neal a security interest in the steel O’Neal provided (“the

Materials Collateral”), (App. at 299), in order to secure AAI’s payment of the

note to O’Neal. The security agreement provides the “Materials Collateral” is

included as “Collateral,” which “shall mean all of [AAI’s] personal property, both

now owned and hereafter acquired.” (Id.) (emphasis added). The note recited

a list of events that would amount to AAI’s default, one of which was AAI’s

bankruptcy. On default, the note would become due.

[4] AAI filed for Chapter 11 bankruptcy protection on June 15, 2012. O’Neal

sought an order from the bankruptcy court requiring payment of “adequate

protection,” (App. at 49), based on its claim it held a security interest “in much Court of Appeals of Indiana | Memorandum Decision 49A04-1312-PL-624 | January 26, 2015 Page 3 of 5 of [AAI’s] assets,” (id. at 48) (emphasis added), including specifically the steel

O’Neal now claims others converted. The bankruptcy court did not enter that

requested order.

[5] O’Neal then filed a complaint in Marion Superior Court against Major Tool,

Tishman, Permasteelisa, The Port Authority, and One WTC. The complaint

alleged some or all of the defendants had converted the steel that had been

delivered to Major Tool but in which O’Neal had a security interest. All the

defendants moved to dismiss the complaint for lack of personal jurisdiction,

asserting various theories. The trial court granted all the motions but did not

specify the basis for the dismissals.

Discussion and Decision [6] We will affirm a trial court’s ruling on a motion to dismiss if it is sustainable on

any basis found in the record. See City of New Haven v. Reichhart, 748 N.E.2d

374, 378 (Ind. 2001) (addressing motion to dismiss for failure to state a claim on

which relief can be granted). The complaint was properly dismissed because

the bankruptcy court has exclusive jurisdiction over this matter.

[7] The bankruptcy court in which a case is commenced or is pending has exclusive

jurisdiction “of all the property, wherever located, of the debtor as of the

commencement of such case, and of property of the estate.” 28 U.S.C. § 1334.

Property of the estate includes “all legal or equitable interests of the debtor in

property as of the commencement of the case.” 11 U.S.C. § 541. It is apparent

the steel materials are included in the property of AAI’s estate; the security

Court of Appeals of Indiana | Memorandum Decision 49A04-1312-PL-624 | January 26, 2015 Page 4 of 5 agreement provides the “Materials Collateral,” i.e., the steel O’Neal provided, is

included as “Collateral,” which “shall mean all of [AAI’s] personal property,

both now owned and hereafter acquired.” (App. at 299.)1

[8] As the bankruptcy court has exclusive jurisdiction over the steel O’Neal

supplied to AAI, O’Neal’s claim in the Marion Superior Court that the

defendants converted that same steel was properly dismissed, and we

accordingly affirm.

[9] Affirmed.

Kirsch, J., and Bailey, J., concur.

1 O’Neal asserts in its reply brief “the property referenced by Defendants, the Steel Materials, is not property of AAI’s bankruptcy estate.” (Reply Br. of Appellant O’Neal Flat Rolled Metals LLC at 13.) As O’Neal offers no argument, legal authority, or citation to the record to support that assertion, we decline to consider it. See, e.g., Haynes v. Haynes, 167 Ind. App. 55, 56, 337 N.E.2d 580, 581 (1975) (allegation of error waived when there is “no specific, cogent argument with citations of authority together with a showing of how the arguments and authorities are applicable to the facts of this case”).

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