Surrisi v. Bremner

957 N.E.2d 201, 2011 Ind. App. LEXIS 1866, 2011 WL 5120746
CourtIndiana Court of Appeals
DecidedOctober 31, 2011
DocketNo. 50A04-1102-MF-83
StatusPublished

This text of 957 N.E.2d 201 (Surrisi v. Bremner) 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
Surrisi v. Bremner, 957 N.E.2d 201, 2011 Ind. App. LEXIS 1866, 2011 WL 5120746 (Ind. Ct. App. 2011).

Opinion

OPINION

MAY, Judge.

Lorenzo and Joette Surrisi, individually and as owners of City Tavern, appeal the trial court’s “Order on Effect of Sheriffs Sale,” which stated that the Surrisis’ real and personal business property were sold at a sheriffs sale to James Bremner, as co-owner of M & J Lakeshore, LLC. The Surrisis submit various issues for our review, but we find one dispositive issue that the trial court erred when it affirmed the Sheriffs Bill of Sale which included the business personal property when that property was not listed as an item offered for sale in the Notice of Sheriffs Sale. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The Surrisis owned and operated a restaurant and bar in Culver, Indiana, and lived on the premises. Bremner loaned the Surrisis $100,000. The Surrisis gave Bremner a “security interest” in their alcoholic beverage permit (App. at 29) and a Real Estate Mortgage, Security Agreement, and Fixture Filing (Id. at 20), which granted, in the event of default, a mortgage on the property and a security interest in all personal property and fixtures on the premises, including those items owned by the Surrisis for their personal use.

The Surrisis defaulted and Bremner sued for damages and to foreclose the mortgage. The parties entered into an Agreed Judgment that “the Real Property and Personal Property shall be sold by the Sheriff of Marshall County.” (Id. at 41.)

Bremner filed a Praecipe for Sheriffs Sale, requesting “certain real property located in Marshall County, Indiana” be sold at a Sheriffs Sale. (Id. at 51) (emphasis added). The Sheriff posted a Notice of Sheriffs Sale for the real property subject to the Agreed Judgment. The Notice did not mention the Surrisis’ personal property and, although it purported to include the cause number for the Agreed Judgment, the number was incorrect.

Before the sheriffs sale, the Surrisis removed all personal property from the premises. Bremner and Mr. Surrisi attended the sale, and Bremner, through his assignee company M & J Lakeshore, Inc., was the highest bidder. The Sheriff then issued a bill of sale for both the real property and the “business personal property.” (Id. at 117.) After the bill of sale was issued, the Surrisis’ counsel told [203]*203Bremner’s counsel the Surrisis would surrender the business personal property as requested. The Surrisis obtained new counsel a few days later, and he told Bremner’s counsel the Surrisis would surrender the business personal property. However, he asserted the sheriffs bill of sale was faulty because the business personal property was not included in the Notice of Sheriffs Sale.

The Surrisis filed a “Motion for Determination of Effect of January 25, 2011 Sheriffs Sale and Request for Expedited Hearing.” (Id. at 72). They argued the business personal property was not part of the sheriffs sale because it was not offered for sale on any of the documentation leading up to or after the sheriffs sale, and asked the trial court to set aside the purported sale of the business personal property. After a hearing the trial court denied the Surrisis’ motion, finding “that notwithstanding any alleged defect in the Notice of Sheriffs Sale, the sale of the business personal property, along with the sale of the real estate, was adequately supported by the Agreed Judgment, the post-judgment agreements of the parties and the Bill of Sale issued by the sheriff.” (Id. at 7.)

DISCUSSION AND DECISION

In its order, the trial court entered findings and conclusions of law sua sponte. We apply a two-tiered standard of review to such findings and conclusions. Money Store Investment Corp. v. Summers, 909 N.E.2d 450, 458 (Ind.Ct.App.2009), reh’g denied. First, we determine whether the evidence supports the findings, then whether the findings support the judgment. Id. Findings and conclusions will be set aside only when they are clearly erroneous. Id. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh evidence or judge the credibility of witnesses. Id. Sua sponte findings control only the issues they cover. Id.

The trial court made one finding as part of its order:

The Court finds that notwithstanding any alleged defect in the Notice of Sheriffs Sale, the sale of the business personal property, along with the sale of real estate, was adequately supported by the Agreed Judgment, the post-judgment agreements of the parties and the Bill of Sale issued by the sheriff.

(App. at 7.) The Surrisis argue the Sheriffs Bill of Sale which includes the business personal property is faulty because, according to the praecipe of sale, notice of sale, and tax documentation, only the real property was subject to the sheriffs sale on January 25, 2011. We agree.

“The vacation of a sheriffs sale is committed to the sound discretion of the trial court and not to be disturbed absent a showing of an abuse of that discretion.” Finucane v. Union Planters Bank, N.A., 732 N.E.2d 175, 177 (Ind.Ct.App.2000). An abuse of discretion occurs when a decision is against the logic and effect of the facts and inferences supporting the judgment. Weppler v. Stansbury, 694 N.E.2d 1173, 1176 (Ind.Ct.App.1998). “The law allows a trial court to take a ‘commonsense approach’ in deciding whether or not to vacate a sheriffs sale.” Finucane, 732 N.E.2d at 177. The court takes into consideration all circumstances, such as the inadequacy of the price, the effect of procedural irregularities, inequitable conduct, evidence of mistake or misapprehension, and problems with title. Id.

[204]*204Requirements for a notice of sheriffs sale are set forth in Ind.Code § 32-29-7-3(g):

Notices under subsections (d) and (e)1 must contain a statement, for informational purposes only, of the location of each property by street address, if any, or other common description of the property other than legal description. A misstatement in the informational statement under this subsection does not invalidate an otherwise valid sale.

(footnote added). The Notice of Sheriffs Sale provided:

TO THE OWNERS OF THE WITHIN DESCRIBED REAL ESATE AND ALL INTERESTED PARTIES
By virtue of a certified copy of an Agreed Judgment Entry and Decree of Foreclosure (“Decree”) sent to me by the Clerk of Marshall County, Indiana, in a case entitled, James D. Bremner v. Lorenzo Surrisi, individually and d/b/a City Tavern and Joette J. Surrisi, individually and d/b/a City Tavern and the State of Indiana, in Case no. 50C01-1008-MF-149, requiring me to make the sum as provided for in the Decree with interests and costs, I will expose at public sale to the highest bidder, on the 25th day of January 2011 at 1:00 p.m.

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Related

Indi Investments, LLC v. Credit Union 1
884 N.E.2d 896 (Indiana Court of Appeals, 2008)
Finucane v. Union Planters Bank, N.A.
732 N.E.2d 175 (Indiana Court of Appeals, 2000)
MONEY STORE INVESTMENT CORP. v. Summers
909 N.E.2d 450 (Indiana Court of Appeals, 2009)
Weppler v. Stansbury
694 N.E.2d 1173 (Indiana Court of Appeals, 1998)
Van Egmond v. Horsman
10 P.3d 715 (Colorado Court of Appeals, 2000)

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Bluebook (online)
957 N.E.2d 201, 2011 Ind. App. LEXIS 1866, 2011 WL 5120746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/surrisi-v-bremner-indctapp-2011.