MEMORANDUM DECISION                                              FILED
                                                             Sep 21 2016, 8:07 am

Pursuant to Ind. Appellate Rule 65(D),                           CLERK
this Memorandum Decision shall not be                        Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court
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.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Preeti Gupta                                             Cody B. Coombs
Indianapolis, Indiana                                    Pritzke & Davis, LLP
                                                         Greenfield, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

New Palestine Plaza, Inc.,                               September 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A05-1512-PL-2136
        v.                                               Appeal from the Hancock Circuit
                                                         Court
Richards Real Estate, LLC,                               The Honorable Richard Culver,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable R. Scott Sirk,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         30C01-1105-PL-747



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 1 of 6
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, New Palestine Plaza, Inc. (New Palestine), appeals the

      trial court’s imposition of a temporary restraining order following an

      evidentiary hearing on Appellee-Plaintiff’s, Richards Real Estate, LLC

      (Richards), motion for proceedings supplemental.


[2]   We dismiss.


                                                     ISSUE

[3]   New Palestine raises one issue on appeal, which we restate as: Whether the

      trial court abused its discretion by imposing a temporary restraining order

      because Richards has no rights to New Palestine’s assets.


                           FACTS AND PROCEDURAL HISTORY

[4]   On June 11, 2010, Richards and New Palestine entered into a purchase

      agreement (Purchase Agreement) of certain commercial real estate at 12130

      East Washington Street, Indianapolis, owned by New Palestine. Following the

      closing of the transaction, Richards paid the purchase price but New Palestine

      failed to deliver a duly executed and acknowledged warranty deed to the real

      estate. On May 6, 2011, Richards filed his Complaint for damages against New

      Palestine. Judgment on Richards’ Complaint was entered on March 7, 2014,

      awarding Richards $60,000 in damages. New Palestine was also ordered to

      execute a new deed with a corrected legal description of the real estate.




      Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 2 of 6
[5]   Meanwhile, on October 17, 2013, Greenfield Banking Company (Greenfield)

      filed its Suit on Note and Foreclosure of Mortgage against New Palestine under

      a different cause (Foreclosure Action). The Foreclosure Action asserted that

      New Palestine had executed a note to Greenfield in the amount of $750,000.

      To secure the payment of the note, New Palestine executed a mortgage on the

      commercial real estate located at 12130 East Washington Street, Indianapolis

      granting Greenfield a first lien on the property. To further secure the

      obligations of New Palestine under the note, New Palestine executed an

      assignment of leases, granting Greenfield a security interest in all rents arising

      from the real estate.


[6]   New Palestine became delinquent in its monthly payments and Greenfield filed

      the Foreclosure Action to demand payment of the delinquent amount.

      Greenfield named Richards as a party in its Foreclosure Action with respect to

      “any claim as to the respective judgment” in Richards’ cause against New

      Palestine. (Appellant’s App. p. 25). On November 19, 2013, Richards filed its

      Answer to Greenfield’s Foreclosure Action, admitting only that its lawsuit

      against New Palestine existed. On February 17, 2015, Greenfield and New

      Palestine executed an Agreed Judgment in the Foreclosure Action, in which the

      parties agreed that all claims, liens, and interests in the rent payments on the

      real estate are superior to any other claims.


[7]   On September 9, 2015, Richards filed its Motion for Proceedings Supplemental

      following its judgment of March 7, 2014 against New Palestine in the current

      cause, requesting to apply New Palestine’s “assets, income, profits, or other

      Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 3 of 6
      non-exempt property” to the satisfaction of the judgment. (Appellee’s App. p.

      30). The trial court conducted a hearing on the motion on November 6, 2015.

      During the hearing, New Palestine admitted to having transferred certain real

      estate to other entities associated with New Palestine since the entry of the

      judgment. It also admitted to owning a checking account which it used to pay

      its obligations to Greenfield and to cover other expenses. At the close of the

      evidence, the trial court took “the matter under advisement” and granted

      Richards a temporary restraining order, ordering that

              during the pendency of this action or until further order of this
              [c]ourt, [], [New Palestine] is restrained from transferring,
              encumbering, concealing, selling or otherwise disposing of any
              property, real, personal, or mixed, of any kind. This shall
              include but not be limited to any and all real property, and any
              bank accounts, without the written consent of the parties or the
              permission of the [c]ourt.


      (Appellant’s App. p. 19).


[8]   New Palestine now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION


[9]   New Palestine contends that the temporary restraining order “allows Richards

      to have rights to [New Palestine’s] property, which includes rents[,]” in

      violation of the Agreed Entry issued in the Foreclosure Action which granted

      Greenfield “priority of all claims, liens and interests in the [r]ents.”

      (Appellant’s Br. p. 6).


      Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 4 of 6
[10]   Initially, we note that a temporary restraining order is not within any class of

       appealable interlocutory orders. Jacob Weinberg News Agency, Inc. v. City of

       Marion, 322 N.E.2d 730, 735 n.4 (1975); see Ind. Appellate Rule 14(A)(5)

       (providing that an interlocutory appeal of right may be taken only from the

       “granting or refusing to grant, dissolving, or refusing to dissolve a preliminary

       injunction”). Furthermore, the trial court was not requested to certify its order

       in pursuit of a discretionary interlocutory appeal, nor was this court called upon

       to accept a discretionary interlocutory appeal. See Ind. Appellate R. 14(B).

       Accordingly, we are without jurisdiction to hear New Palestine’s appeal to the

       temporary restraining order.


[11]   However, even if we had jurisdiction over the appeal—which we have not—

       New Palestine would not be successful. By its temporary restraining order, the

       trial court merely preserved the status quo between the parties until it could rule

       on the motion for proceedings supplemental. While the order restrained New

       Palestine from transferring its assets without the parties’ or the trial court’s

       permission, it did not award any rights on those assets to Richards. Without

       the trial court’s ruling on whether Richards can execute its judgment on New

       Palestine’s assets, New Palestine’s claim is not ripe for our review.

       Accordingly, we dismiss New Palestine’s appeal.


                                               CONCLUSION

[12]   Based on the foregoing, we dismiss New Palestine’s appeal as its claim is not

       ripe for our review.


       Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 5 of 6
[13]   Dismissed.


[14]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 30A05-1512-PL-2136 | September 21, 2016   Page 6 of 6
