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”).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1312-PL-624 | January 26, 2015                Page 5 of 5
