Wee Scots, LLC v. Fleming

765 N.E.2d 668, 2002 Ind. App. LEXIS 469, 2002 WL 467901
CourtIndiana Court of Appeals
DecidedMarch 28, 2002
Docket10A01-0108-CV-312
StatusPublished
Cited by3 cases

This text of 765 N.E.2d 668 (Wee Scots, LLC v. Fleming) 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
Wee Scots, LLC v. Fleming, 765 N.E.2d 668, 2002 Ind. App. LEXIS 469, 2002 WL 467901 (Ind. Ct. App. 2002).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Rita S. Fleming filed a civil complaint against her tenant, Wee Seots, LLC, after it defaulted on the parties' commercial lease. Fleming later filed a motion for pre-judgment attachment of the equipment inside the building, and the trial court granted that motion. Following a bench trial on the underlying complaint, the court entered judgment for Fleming and ordered that Wee Seots' attached property be sold and the net proceeds applied toward the judgment. Wee Scots appeals that judgment and raises the following dis-positive issue for our review, namely, whether the trial court erred when it granted Fleming's motion for pre-judgment attachment.

We affirm.

FACTS AND PROCEDURAL HISTORY

In March 1999, Wee Seots leased a Jef-fersonville building from Fleming and converted it into a restaurant. But Wee Seots defaulted on its monthly rent payments and was forced to close the restaurant in May 2000. Fleming and Wee Seots were unable to negotiate payment of the delinquent rent, so Fleming, in June 2000, changed the locks on the leased property, which still housed Wee Seots' restaurant equipment. Fleming then filed suit against Wee Seots seeking possession of the property and damages. Settlement discussions broke down in August 2000, after the parties could not agree on the value of the restaurant equipment locked inside the building. Wee Seots advised Fleming that a Louisville, Kentucky company would remove and take possession of the equipment. And, in response, Fleming filed a verified motion for pre-judgment attachment of the restaurant equipment in August 2000, asserting that Wee Seots was trying to sell or otherwise dispose of the equipment. The trial court granted the motion.

In January 2001, Wee Scots filed for bankruptcy, and, in April 2001, the bank-ruptey court stayed all claims by Wee Scots' creditors pending conclusion of the bankruptcy proceedings, except for "secured creditors with non-avoidable perfected security interests" in any of Wee Seots' property. Transeript at 100. The bank-ruptey court granted limited relief to such creditors so that they could pursue valid claims against Wee Seots' property.

Prior to the trial in Fleming's action, Wee Seots moved for dismissal, arguing that Fleming's pre-judgment attachment *670 was invalid because she failed to satisfy the statutory requirements and that Fleming already had possession of the property when she sought the pre-judgment attachment. The trial court denied the motion. Following a bench trial, the court entered an in rem judgment for Fleming in the amount of $25,617.20 and ordered that Wee Seots' attached restaurant property be sold to help satisfy the judgment. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Initially, we note that the trial court entered specific findings and conclusions. As a result, the specific findings control only as to the issues they cover, and a general judgment standard controls as to the issues upon which the court has not made findings. Jack Eiser Sales Co., Inc. v. Wilson, 752 N.E.2d 225, 227 (Ind.Ct.App.2001). This court will not set aside a judgment unless it is clearly erroneous. Reed Sign Serv., Inc. v. Reid, 755 N.E.2d 690, 694-95 (Ind.Ct.App.2001). A judgment is clearly erroncous only if a review of the record leaves the court with a firm conviction that a mistake has been made. Id. In reviewing the findings and judgment entered by the trial court, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. E & L Rental Equip., Inc. v. Wade Const., Inc., 752 N.E.2d 655, 658 (Ind.Ct.App.2001).

Pre-judgment Attachment

Wee Scots contends that the trial court erred when it granted judgment for Fleming because the pre-judgment attachment of Wee Seots' property was invalid and, therefore, was not a perfected security interest exempt from the bankruptcy court's jurisdiction. Specifically, Wee Seots maintains that Fleming failed to fulfill the statutory requirements for obtaining a prejudgment attachment and that Fleming could not validly seek an attachment because she already had possession of the restaurant equipment, We cannot agree.

The attachment of property is governed by Indiana Code Section 84-25-2-1, which provides, in pertinent part:

(a) At or after the time of filing a complaint, the plaintiff may have an attachment against the property of the defendant, in the cases described in subsection (b) and in the manner described in this chapter.
(b) The plaintiff may attach property when the action is for the recovery of money and the defendant:
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(4) is removing or about to remove the defendant's property subject to execution, or a material part of the property, outside Indiana, not leaving enough behind to satisfy the plaintiff's claim
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(6) is about to sell, convey, or otherwise dispose of the defendant's property subject to execution with the fraudulent intent to cheat, hinder, or delay the defendant's ereditors.

And in order to secure an attachment, the plaintiff must present the court with an affidavit showing (1) the nature of the plaintiff's claim; (2) that the plaintiff's claim is just; (8) the amount that the plaintiff ought to recover; and (4) that one (1) of the grounds for an attachment enumerated in [IC. 34-25-2-1] is present. See Ind.Code § 34-24-2-4.

Here, subsequent to filing her complaint, Fleming filed a verified motion for *671 pre-judgment attachment, a written undertaking, 1 and an affidavit, in which she alleged, in part:

The plaintiff's claim in the above-captioned cause of action is for the recovery of money due from Defendant Wee Seots, LLC, arising from its breach of a lease....
The plaintiff's claim is just.
In the above-captioned cause of action, I believe that the Plaintiff ought to recover from the Defendants a money judgment of at least $10,000.
I have good reason to believe, and do believe, that Defendant Wee Seots, LLC, owns certain restaurant equipment and furnishings, as more particularly described in Exhibit "A" attached hereto and incorporated by reference herein (hereinafter referred to as the "Personal Property"). ...
I have good cause to believe, and do believe, that:
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Cite This Page — Counsel Stack

Bluebook (online)
765 N.E.2d 668, 2002 Ind. App. LEXIS 469, 2002 WL 467901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wee-scots-llc-v-fleming-indctapp-2002.