                                                                Sep 03 2015, 8:19 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Andrea L. Ciobanu                                         Edward F. Schrager
Alex Beeman                                               Joshua T. Robertson
Ciobanu Law, P.C.                                         Cohen Garelick & Glazier
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Memory Gardens Management                                 September 3, 2015
Corporation, Inc.,                                        Court of Appeals Case No.
Appellant-Plaintiff,                                      49A02-1501-CC-1
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Heather A. Welch,
Liberty Equity Partners, LLC,                             Judge
and Old Bridge Funeral Home,                              Trial Court Cause No.
LLC,                                                      49D12-1312-CC-45476
Appellees-Defendants.




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015               Page 1 of 24
[1]   Memory Gardens Management Corporation, Inc. (“MGMC”) appeals the trial

      court’s order granting summary judgment in favor of Liberty Equity Partners,

      LLC, and Old Bridge Funeral Home, LLC (collectively, the “Old Bridge

      Parties”). MGMC raises one issue which we revise and restate as whether the

      trial court erred in granting summary judgment. Additionally, the Old Bridge

      Parties request appellate attorneys’ fees. We affirm and remand.


                                       Facts and Procedural History

[2]   Ansure Mortuaries of Indiana, LLC (“Ansure”) owned several subsidiary

      companies owning and operating funeral homes, cemeteries, and other

      businesses in the funeral home and cemetery industry. MGMC was one of

      these wholly-owned subsidiaries but, unlike Ansure’s other subsidiaries, was a

      management company whose primary function was to provide centralized

      managerial and administrative services to Ansure and its subsidiaries. Until

      January 2008, Robert Nelms was the Managing Member and CEO of the Old

      Bridge Parties, as well as the sole shareholder of Ansure and MGMC.


[3]   On January 3, 2008, certain holders of a mortgage and other debt instruments

      executed by Ansure filed a Motion For Appointment Of Receiver Over

      Mortgagor Companies (the “Receivership Action”) in the Johnson Circuit

      Court (the “Receivership Court”) seeking the appointment of a receiver on the

      grounds that: (1) a receiver was necessary to protect their mortgage interest; (2)

      property, rents, and profits were in danger of being lost, removed, or materially

      injured; and (3) Ansure was in imminent danger of insolvency. Nelms, Ansure,

      and MGMC, among other subsidiaries of Ansure, were named as defendants in
      Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 2 of 24
      the Receivership Action. On January 17, 2008, the State of Indiana filed a

      separate complaint seeking injunctive relief, declaratory relief, restitution, and

      appointment of a receiver in order to prevent continuing securities violations

      and misappropriations of trust fund monies by the defendants in the

      Receivership Action,1 and the Receivership Court entered a Temporary

      Restraining Order “in order to maintain the status quo between the Parties and

      to allow the Parties to conduct discovery and prepare for the preliminary

      injunction hearing.” Appellant’s Appendix at 51.


[4]   On January 22, 2008, by agreement of the parties in the Receivership Action,

      Lynette Gray (the “Receiver”) was appointed as Temporary Receiver by the

      Receivership Court. On January 25, 2008, the Receivership Court entered an

      Order Extending Restraining Order and Appointment of Receiver, which

      provided that the Receiver was to oversee and control Ansure and its

      subsidiaries, including MGMC. On May 2, 2008, the Receivership Court

      issued its Findings of Fact, Conclusions Thereon, Preliminary Injunction, and

      Order of Continuing Receivership (the “Receivership Order”), which made the

      receivership over Ansure and its subsidiaries, including MGMC, permanent. In

      the Receivership Order, the Receiver was granted all of the rights and powers

      available to her under Indiana law. Additionally, the Receivership Order

      provided:




      1
        On August 3, 2009, Nelms entered into a plea agreement in which he pled guilty to theft and securities
      fraud arising from his conduct relating to the funeral home, cemetery, and perpetual care requirements.

      Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015                         Page 3 of 24
        262.     The receiver shall, specifically:

                 A. Take control of [Ansure], including all wholly owned
                    subsidiaries;

                 B. Marshall and account for all assets of the business entities;

                 C. Marshall and account for all trust fund assets of the business
                    entities;

                 D. Assume the management of the day-to-day operations the
                    [sic] business entities; and,

                 E. Manage the business operations of each entity in the best
                    interests of the creditors and owner(s) thereof.

                                           *****

        267.     [Ansure], its owner(s), directors, employees, agents, and the
                 Defendants herein, shall fully cooperate with the Receiver or
                 any of her employees or agents, including, but not limited to:

                 A. Replying promptly as requested to any inquiry from the
                    Receiver, her employees, or agents;

                 B. Making available all books, records, accounts, documents,
                    information, and property;

                 C. Abstaining from obstructing, interfering, frustrating, and /
                    or interrupting the Receiver, her employees, or agents, in
                    the conduct of her duties.

        268.     Pursuant to Indiana Trial Rule 66(B), the Board of Directors of
                 [Ansure] shall direct its employees to file with this Court,
                 within thirty (30) days of this Order, a full, complete, itemized
                 statement, in affidavit form, setting forth in detail all the assets
                 and all the liabilities of [Ansure], including those assets and
                 liabilities of the wholly owned subsidiaries, along with the
                 names and addresses of all known creditors.

                                               *****



Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015            Page 4 of 24
              271.     Robert Nelms and [Ansure] and their respective owners,
                       directors, agents, employees, and / or assignees are hereby
                       PRELIMINARILY ENJOINED from:

                                                     *****

                       C. Altering, disposing, destroying, erasing, or secreting away
                          any and all records . . . pertaining to the operating,
                          management, or control of [Ansure] or any of its wholly-
                          owned subsidiaries and the trust funds associated therewith;

                                                     *****

                       F. Obstructing, interfering with, frustrating, and / or
                          interrupting the Receiver, her employees, or agents, in the
                          conduct of her duties; and

                       G. Conducting business or directing business decisions for or
                          on behalf of [Ansure] or any of its wholly-owned
                          subsidiaries.


      Id. at 70-72.


[5]   On June 2, 2008, MGMC’s Controller filed an affidavit with the Receivership

      Court which purported to itemize the assets of Ansure and each of its wholly-

      owned subsidiaries. The itemization of MGMC’s assets identified items such

      as office equipment, including tables, chairs, microwaves, and computer

      monitors, construction equipment, and automotive equipment. The

      Controller’s affidavit did not identify any loans made by MGMC to the Old

      Bridge Parties. In an affidavit submitted to the Receiver, David Hernandez, a

      funeral director at the Old Bridge Funeral Home, stated that “during the

      construction of the Old Bridge Funeral Home, approximately $450,000.00 was



      Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015          Page 5 of 24
      lent by Memory Gardens to Old Bridge Funeral Home, LLC to complete the

      construction.” Id. at 460.


[6]   On May 18, 2009, the Receiver filed her First Annual Report, which reported

      that she concentrated her efforts on the management of MGMC because it

      oversaw the business operations of all the entities controlled by Ansure. In her

      report, the Receiver confirmed that she had received MGMC’s Controller’s

      affidavit itemizing Ansure’s assets. In addition, the Receiver reported that she

      interacted daily with members of MGMC’s management team, including the

      acting CEO and Controller, the Trust and Compliance Officer, the Vice

      President of Sales and Marketing, and Ansure’s Board Members. The Receiver

      also reported that she exchanged information with Nelms and his attorneys

      regularly. Neither Nelms, Ansure, nor MGMC objected to the Receiver’s First

      Annual Report or the contents of the affidavit detailing Ansure’s assets and

      creditors included with the report.


[7]   On September 15, 2009, the Receivership Court made findings that the

      liabilities of the Ansure entities exceeded its assets, that Ansure and its

      subsidiaries were not able to pay their debts as they became due, and, as a

      result, Ansure and its subsidiaries were either insolvent or in imminent danger

      of becoming insolvent. The Receivership Court ordered Nelms or Ansure to

      propose a definitive plan by October 16, 2009, providing for the restoration of

      liquid assets into the cemetery trust of the Ansure entities. The Receivership

      Court provided that in the absence of such a plan the court would likely



      Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015      Page 6 of 24
      authorize the Receiver to begin liquidating the Ansure entities, including

      MGMC.


[8]   On January 12, 2010, the Receivership Court granted the Receiver approval to

      seek a purchaser of Ansure and its subsidiaries. On January 28, 2010, the

      Indiana Securities Commissioner, who was a party to the Receivership Action,

      filed a Motion to Revoke Receivership following the closing of a proposed sale

      of Ansure and its assets to a company named StoneMor pursuant to the terms

      of an Asset Purchase Agreement negotiated and executed among the Securities

      Commissioner, Nelms, and StoneMor on January 11, 2010. On February 2,

      2010, the Receiver filed an objection to the Securities Commissioner’s Motion

      to Revoke Receivership on the grounds that the Receiver was excluded from the

      negotiations, that Nelms had no authority to execute the Asset Purchase

      Agreement on behalf of Ansure, and that the terms of the agreement were not

      in the best interest of creditors. On April 2, 2010, having negotiatied an

      Amended and Restated Asset Purchase Agreement (the “APA”) with

      StoneMor, the Receiver sought court approval of the APA, which the court

      granted on April 29, 2010. Under the APA, StoneMor did not acquire an

      equity interest in MGMC.


[9]   On July 6, 2010, the Receiver filed a Motion for Order to: 1) Terminate

      Receiver’s Control Over Certain Entities, 2) Turn Over Assets, and 3) File Final

      Report (the “Turnover Motion”). With the APA having been consummated on

      June 22, 2010, resulting in the vast majority of Ansure’s assets being sold to

      StoneMor, the Receiver sought permission from the Receivership Court to

      Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 7 of 24
       return certain assets to Nelms and to retain control over MGMC for the

       purpose of closing out its accounts and winding down its business affairs. The

       Turnover Motion provided that the sale of Ansure’s assets resolved the primary

       reason for the Receivership and eliminated the need for a corporate office and

       “the continuation of [MGMC], whose complex affairs must be wound down at

       a significant cost.” Id. at 104. Neither Nelms, Ansure, nor MGMC objected to

       the Turnover Motion.


[10]   On July 26, 2010, the Receivership Court approved the Turnover Motion,

       providing in part:

               IT IS THEREFORE ORDERED THAT the Receiver shall retain
               control over MGMC, its operating accounts, and the Receiver’s
               Closeout Account until further order of this Court.

               . . . the Receiver’s Final Report [] shall be filed no later than September
               27, 2010.

                                                      *****

               . . . any objections and / or exceptions to the Receiver’s Final Report
               may be filed no later than October 28, 2010.

               . . . pursuant to Indiana Code 32-30-5-18, any claims or exceptions not
               filed on or before October 28, 2010 are forever barred for all purposes.


       Id. at 901-902. No appeals were taken from the Receivership Court’s Order

       Granting Turnover Motion.


[11]   On October 29, 2010, the Receiver filed her Receiver’s: (1) Final Report; (2)

       Final Accounting; (3) Motion to Determine That All Previous Interim Fees and

       Expenses Awarded to Receiver and Her Counsel are Final Allowances; (4)
       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015          Page 8 of 24
       Request For Release and Discharge of Bond (the “Final Report”) in which she

       reported that the wind down of MGMC was begun immediately after the sale

       to StoneMor and had been essentially completed except to the extent necessary

       to maintain tax records. Neither Nelms, Ansure, nor MGMC objected to the

       Final Report. On December 27, 2010, the Receivership Court issued an Order

       Approving Final Report that specifically identified the assets to be returned to

       Nelms, and did not list MGMC among those assets. On April 6, 2011, the

       Receiver filed Articles of Dissolution for MGMC with the Indiana Secretary of

       State, which issued a Certificate of Dissolution certifying that MGMC’s

       dissolution was effective as of April 6, 2011.


[12]   On September 14, 2011, the Receiver filed a Supplemental Final Report.

       Nelms, Ansure, and MGMC did not object to the Supplemental Final Report,

       and it was approved by the Receivership Court on December 12, 2011. On

       April 25, 2013, the Receiver filed a Final Supplemental Report, which stated

       that the Receivership was no longer necessary and requested that the Receiver

       be discharged. The Receivership Court approved the Final Supplemental

       Report on April 30, 2013, and discharged the Receiver.


[13]   On December 24, 2013, approximately two years and eight months after

       MGMC’s dissolution, Nelms, purporting to act as President of MGMC, filed a

       Verified Complaint for Damages on Commercial Note, Security Agreement,

       and for Replevin (the “Complaint”) in the present action. As alleged in the

       Complaint, on March 3, 2006, the Old Bridge Parties executed and delivered a

       Demand Note in favor of MGMC in the amount of $450,000 with an effective

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 9 of 24
       date of March 1, 2005.2 The Complaint also alleged that the Old Bridge Parties

       entered into a Security Agreement with MGMC on March 3, 2006 to secure

       repayment of the Demand Note,3 and that the Old Bridge Parties breached the

       terms of the Demand Note and the Security Agreement (together, the “Demand

       Note”) and are indebted to it in the amount of $450,000 plus interest.


[14]   On March 24, 2014, the Old Bridge Parties filed a motion for summary

       judgment together with designated evidence and a memorandum in support of

       the motion. In their memorandum, the Old Bridge Parties argued that

       MGMC’s claims under the Demand Note were forever barred by operation of

       law and that, having been dissolved, MGMC did not have standing to bring the

       claims. On August 22, 2014, MGMC filed its response in opposition to the Old

       Bridge Parties’ motion for summary judgment and cross-motion for summary

       judgment. MGMC argued that its claims were not barred and that MGMC had

       standing to bring claims under the Demand Note despite having been dissolved

       during the Receivership. Specifically, MGMC claimed that it is attempting to

       be reinstated as an ongoing concern and that MGMC, along with the Demand

       Note, were returned to Nelms.


[15]   On December 4, 2014, following a hearing on the matter held on June 27, 2014,

       the trial court entered an order granting the Old Bridge Parties’ motion for




       2
           Nelms signed the Demand Note on behalf of the Old Bridge Parties.
       3
           Nelms signed the Security Agreement on behalf of MGMC and the Old Bridge Parties.


       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015                Page 10 of 24
       summary judgment and denying MGMC’s cross-motion for summary

       judgment. In its order, the trial court stated:

               [T]he $450,000 Demand Note was an asset subject to the Receivership.
               As such, the Receiver was able to consider collecting the $450,000. By
               omitting any mention [of] the $450,000 Demand Note at issue in her
               Inventory or failing to collect the $450,000, the Receiver effectively
               abandoned this claim. Indiana Code § 32-30-5-18(b) placed an
               affirmative duty upon Ansure, MGMC, and/or Nelms to file their
               objections or exceptions to the Receiver’s Inventory and Final
               Report/Accounting within the 30 day period. Since neither Ansure,
               MGMC, nor Nelms filed an objection, MGMC is forever barred from
               its claim as to the $450,000 Demand Note.

               Since MGMC is forever barred from bringing its claim as to the
               $450,000 Demand Note [the Old Bridge Parties] are entitled to
               summary judgment as a matter of law on MGMC’s Complaint. . . .


       Id. at 1079.


                                                     Discussion

                                                           I.


[16]   The issue is whether the trial court erred in granting the Old Bridge Parties’

       motion for summary judgment. In Indiana, the procedure and standard by

       which appellate courts review challenges to a trial court’s order granting or

       denying summary judgment is clear. Manley v. Sherer, 992 N.E.2d 670, 673

       (Ind. 2013). “Our standard of review is the same as it is for the trial court.” Id.

       (citing Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010)). “The moving party

       ‘bears the initial burden of making a prima facie showing that there are no

       genuine issues of material fact and that it is entitled to judgment as a matter of

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015    Page 11 of 24
       law.’” Id. (quoting Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637

       (Ind. 2012)). Summary judgment is improper if the moving party fails to carry

       its burden, but if it succeeds, then the non-moving party must come forward

       with evidence establishing the existence of a genuine issue of material fact. Id.

       We construe all factual inferences in favor of the non-moving party and resolve

       all doubts as to the existence of a material issue against the moving party. Id.

       (citing Plonski, 930 N.E.2d at 5). An appellate court reviewing a challenged

       trial court summary judgment ruling is limited to the designated evidence

       before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the

       claims and arguments presented at trial nor the rationale of the trial court

       ruling. Id.


[17]   The fact that the parties make cross-motions for summary judgment does not

       alter our standard of review. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind.

       Ct. App. 2007), trans. denied. Instead, we must consider each motion separately

       to determine whether the moving party is entitled to judgment as a matter of

       law. Id.


[18]   Where a trial court enters findings of fact and conclusions thereon in granting a

       motion for summary judgment, the entry of specific findings and conclusions

       does not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280, 1283

       (Ind. 1996). In the summary judgment context, we are not bound by the trial

       court’s specific findings of fact and conclusions thereon. Id. They merely aid

       our review by providing us with a statement of reasons for the trial court’s

       actions. Id.

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 12 of 24
[19]   MGMC argues that Ind. Code § 32-30-5-18 (the “Non-Claim Statute”) does not

       apply in the present situation because the Demand Note was not referenced in

       the Receiver’s Final Report or any of the Receiver’s accountings of Ansure’s

       assets and “[o]ne is under no obligation to object or make exceptions to

       something that is not contained in the final report by the plain language of the

       statute.” Appellant’s Brief at 12. Additionally, MGMC asserts that the trial

       court erred when it determined that, by not referencing the Demand Note in her

       Final Report, the Receiver had abandoned all claims to it.


[20]   Ind. Code § 32-30-5-7 outlines the receiver’s powers and duties, providing:

               The receiver may, under control of the court or the judge:

                        (1) bring and defend actions;

                        (2) take and keep possession of the property;

                        (3) receive rents;

                        (4) collect debts; and

                        (5) sell property;

               in the receiver’s own name, and generally do other acts respecting the
               property as the court or judge may authorize.


       Also, the Non-Claim Statute provides as follows:




       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015     Page 13 of 24
           (a) During the thirty (30) day period referred to in section 17[4] of this
           chapter, any creditor, shareholder, or other interested party may file
           objections or exceptions in writing to the account or report.

           (b) Any objections or exceptions to the matters and things contained in
           an account or report and to the receiver’s acts reported in the report or
           account that are not filed within the thirty (30) day period referred to
           in section 17 of this chapter are forever barred for all purposes.


Ind. Code § 32-30-5-18 (emphasis added). Additionally, the finality of the

receiver’s report once it is accepted by the trial court is governed by Ind. Code §

32-30-5-21:

           Upon the:

                    (1) court’s approval of the receiver’s final account or report, as
                    provided in section 14 of this chapter; and

                    (2) receiver’s performance and compliance with the court’s
                    order made on the final report;

           the receiver and the surety on the receiver’s bond shall be fully and
           finally discharged and the court shall declare the receivership estate
           finally settled and closed subject to the right of appeal of the receiver or
           any creditor, shareholder, or other interested party who has filed objections
           or exceptions as provided in section 18 of this chapter.




4
    Ind. Code 32-30-5-17 provides in part:

         (a) [U]pon the filing of an account or report, the clerk of the court in which the receivership is
             pending shall give notice of the date on which the account or report is to be heard and
             determined by the court.
                                                        *****
         (c) The date in the notice on which the account or report is to be heard and determined by the
             court shall be fixed not less than thirty (30) days after the date of the filing of the account or
             report.

Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015                                Page 14 of 24
       (emphases added).


[21]   First, we address MGMC’s argument that it had no obligation to object to the

       Receiver’s treatment of the Demand Note. We have previously clarified that

       the Non-Claim Statute extends not only to the “matters and things contained in

       an account or report” but also to the matters and things omitted from an

       account or report that should have been included in the report. Ratcliff v.

       Citizens Bank of W. Ind., 768 N.E.2d 964, 970 (Ind. Ct. App. 2002) (“Without

       timely exceptions or objections to the receiver’s Final Report, [the Non-Claim

       Statute5] bars the Ratcliffs from now raising issues that should have been

       included in that report.”), trans. denied; see also Eryk-Midamco Co. v. Bank One,

       N.A., 841 N.E.2d 1190, 1195 (Ind. Ct. App. 2006) (holding that a bank’s claims

       against a mortgagee stemming from a monetary transfer were barred by the

       Non-Claim Statute, and further noting that the bank “could—and should—

       have objected to the omission of any mention of the disputed funds in the

       receiver’s final report”), trans. denied. In Ratcliff, one of the Ratcliffs’ banks

       promised that it would provide financing for the expansion of the Ratcliffs’

       business. Ratcliff, 768 N.E.2d at 966. The Ratcliffs did expand their business,

       but the bank did not provide the promised financing. Id. As a result, the

       Ratcliffs could not pay their creditors, and a receiver was appointed over their

       assets. Id. While the receivership was pending, the Ratcliffs filed a complaint




       5
        In Ratcliff, the court cited to Ind. Code § 34-48-4-5, which was repealed and recodified at Ind. Code § 32-30-
       5-18 by Pub. L. No. 2-2002, § 128 and § 15 respectively.

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015                         Page 15 of 24
       against the bank for not extending the promised financing. Id. Meanwhile, the

       receiver filed his final report. Id. The Ratcliffs did not object to the final report,

       and the court ordered the receivership closed. Id. Subsequently, the trial court

       presiding over the Ratcliffs’ complaint against the bank dismissed the

       complaint, “concluding . . . that Indiana’s non-claim statute forever barred their

       claims because they were assets subject to the receivership . . . .” Id. The

       Ratcliffs appealed the trial court’s decision, and argued in part that their claim

       against the bank was not an asset subject to the receivership. Id. at 970. We

       concluded that “[t]he Ratcliffs’ claims against the Bank . . . were assets subject

       to the receivership. And [the Non-Claim Statute] makes clear that they were

       required to file any objections or exceptions to the receiver’s Final Report,

       which they failed to do.” Id.


[22]   We held in Ratcliff that, to determine whether the Non-Claim Statute applies,

       “[t]he question is . . . whether the [parties’] claims should have been

       administered in the receivership proceedings.” Id. Thus, we must determine

       whether MGMC’s claims under the Demand Note should have been

       administered in the receivership. The record reveals that the Receiver was

       ordered to take control of MGMC and its assets, and there is no question that

       the Demand Note was an asset of MGMC subject to this order. See Appellant’s

       Appendix at 70 (“The receiver shall, specifically: . . . Marshall and account for

       all assets of the business entities; . . . .”). Additionally, the Receiver was vested

       with the power to collect all debts owed to Ansure and its subsidiaries, and the

       Demand Note constitutes a debt that was collectible by the Receiver. See Ind.

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015    Page 16 of 24
       Code § 32-30-5-7(4). Because we determine that the Demand Note was an asset

       of MGMC and a debt owed to it, we find that all claims under the Demand

       Note should have been administered in the receivership proceedings. Further,

       because neither Nelms, Ansure, nor MGMC objected to the absence of the

       Demand Note in the Receiver’s Final Report or the Receiver’s failure to collect

       upon the Demand Note within the thirty day period provided by the Non-

       Claim Statute, we conclude that MGMC’s claims under the Demand Note are

       forever barred for all purposes. See Ind. Code § 32-30-5-18(b); see also Ratcliff,

       768 N.E.2d at 970; Eryk-Midamco Co., 841 N.E.2d at 1195 (“Once the trial court

       in the foreclosure action approved the receiver’s final report and Bank One did

       not object, any claim Bank One may have had to money that was collectible by

       the receiver was extinguished except in the context of an appeal in that

       action.”).


[23]   We next turn to MGMC’s argument that the trial court erred in finding that the

       Receiver abandoned MGMC’s claims under the Demand Note. As noted

       above, Ansure was required to file with the Receivership Court an affidavit

       “setting forth in detail all the assets and all the liabilities of [Ansure], including

       those assets and liabilities of the wholly owned subsidiaries.” Appellant’s

       Appendix at 71. As noted above, based upon this dictate it was incumbent

       upon MGMC to provide the Receiver with knowledge of the Demand Note’s

       existence, and accordingly to the extent the Demand Note existed, the Receiver

       should have had knowledge of the Demand Note or a copy of it in her

       possession. As well, it is undisputed by the parties that the Receiver was vested


       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015     Page 17 of 24
       with the power to enforce and collect upon the Demand Note. See Ind. Code §

       32-30-5-7(4). Similarly, the Receiver was also able to consider and abandon

       such an action. See Eryk-Midamco Co., 841 N.E.2d at 1195 (holding that “[i]n

       omitting any mention of the funds at issue from his final report, the receiver

       effectively abandoned this claim” and noting that whether the receiver was

       specifically aware of the transfer “is of no moment, inasmuch as the receiver

       requested all records, information, and sums of money that were derived from

       the mortgaged premises”) (citing Ind. Code § 32-30-5-18(b))), trans. denied. By

       omitting any mention of the Demand Note in her final report, we conclude that

       the Receiver effectively abandoned MGMC’s claims under the Demand Note.

       See id.; Ind. Code § 32-30-5-7 (providing that a receiver has the power to

       “generally do other acts respecting the property as the court or judge may

       authorize”).6


[24]   We conclude that the court did not err in granting summary judgment in favor

       of the Old Bridge Parties.


                                                              II.


[25]   We turn next to the Old Bridge Parties’ request for appellate attorneys’ fees.

       Ind. Appellate Rule 66(E) provides in part that this court “may assess damages




       6
         The Old Bridge Parties raise additional issues in their brief, including that the doctrine of judicial estoppel
       bars MGMC from enforcing the Demand Note, that MGMC lacks standing, and that the court correctly
       denied MGMC’s cross-motion for summary judgment. Because we affirm the court’s grant of summary
       judgment in favor of the Old Bridge Parties based on the foregoing reasons, we need not address these issues.

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015                           Page 18 of 24
       if an appeal, petition, or motion, or response, is frivolous or in bad faith.

       Damages shall be in the Court’s discretion and may include attorneys’ fees.”

       Our discretion to award attorneys’ fees under Ind. Appellate Rule 66(E) is

       limited to instances when “an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel,

       797 N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Orr v. Turco Mfg. Co. Inc., 512

       N.E.2d 151, 152 (Ind. 1987)). In addition, while Ind. Appellate Rule 66(E)

       provides this court with discretionary authority to award damages on appeal,

       we must use extreme restraint when exercising this power because of the

       potential chilling effect upon the exercise of the right to appeal. Id. (citing

       Tioga Pines Living Ctr., Inc. v. Ind. Family & Social Serv. Admin., 760 N.E.2d 1080,

       1087 (Ind. Ct. App. 2001), aff’d on reh’g, trans. denied.). A strong showing is

       required to justify an award of appellate damages and the sanction is not

       imposed to punish mere lack of merit but something more egregious. Harness v.

       Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010).


[26]   Indiana appellate courts have classified claims for appellate attorneys’ fees into

       substantive and procedural bad faith claims. Thacker, 797 N.E.2d at 346 (citing

       Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001)). To

       prevail on a substantive bad faith claim, the party must show that “the

       appellant’s contentions and arguments are utterly devoid of all plausibility.” Id.

       Procedural bad faith, on the other hand, occurs when a party flagrantly

       disregards the form and content requirements of the rules of appellate

       procedure, omits and misstates relevant facts appearing in the record, or files

       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 19 of 24
       briefs written in a manner calculated to require the maximum expenditure of

       time both by the opposing party and the reviewing court. Id. at 346-347. Even

       if the appellant’s conduct falls short of that which is “deliberate or by design,”

       procedural bad faith can still be found. Id. at 347.


[27]   Here, we find that MGMC repeatedly omits, misstates, and misrepresents the

       relevant contents of the record as it relates to the return of MGMC and the

       Demand Note to Nelms at the conclusion of the Receivership Action, and we

       cannot characterize these omissions, misstatements, and misrepresentations as

       being within the bounds of acceptable advocacy. For instance, MGMC asserts

       that “the Receiver moved to terminate the receivership in nearly all aspects and

       return the remaining Ansure property, including MGMC, to Nelms . . . ,” and

       cites to the Turnover Motion to support this assertion. Appellant’s Brief at 9

       (emphasis added). However, our review of the Turnover Motion reveals that

       the Receiver specifically identified eight entities to be returned to Nelms, which

       did not include MGMC. Indeed, the Turnover Motion provided that “[t]he

       Receiver will retain control over MGMC for the purpose of winding up its

       affairs,” and requested that the Receivership Court “terminat[e] the Receiver’s

       control over and return[] to Ansure its remaining assets – except for MGMC . . .

       .” Appellant’s Appendix at 105-106 (emphasis added).


[28]   Further, MGMC asserts that “the [Receivership Court] granted the Receiver’s

       [Turnover Motion] and ordered the remaining Ansure property . . . , including

       MGMC, be returned to Nelms’s designee.” Appellant’s Brief at 9. However,



       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 20 of 24
the Receivership Court’s order granting the Turnover Motion actually states the

following:


        4. . .


                                               *****


                 D. Aside from continuing the operations of the remaining
                 businesses owned by Ansure, the sale of most of Ansure’s
                 cemeteries and funeral homes eliminates the need for the
                 existing corporate office and the continuation of the day to
                 day operations of [MGMC];


                          i. MGMC’s complex affairs must be wound down
                          at a significant cost; and


                          ii. The Receiver has implemented the wind down of
                          MGMC and reasonably believes it can be
                          substantially completed within 30-45 days from the
                          filing date of the Receiver’s Turnover Motion.


        5. The Closeout Account negotiated in conjunction with the sale
        to StoneMor should have sufficient funds to wind up the affairs
        of MGMC and sufficient operating funds to allow the operating
        entities which were not sold to continue their respective
        businesses.


        6. The Receiver has met with representatives of Nelms and
        Ansure’s Board of Directors concerning restoring control of
        Ansure and its assets and affiliated entities to Nelms and
        Ansure’s board.




Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 21 of 24
        7. The Receiver, Nelms, and Ansure have agreed that the
        following actions need to occur in order to wind up the
        Receivership as it relates to Ansure.


                 A. The Receiver should retain control over MGMC for the
                 purpose of winding up its business and pay the windup costs from
                 the operating accounts of MGMC or the Closeout Account;


                 B. The Receiver should return control over the following
                 entities to Robert Nelms or his designee:


                          1. Quality Marble,


                          2. Memorial Planning Agency,


                          3. Meyer Industries,


                          4. Memory Gardens Logistics,


                          5. American Bronze Craft, Inc.,


                          6. Quality Printers,


                          7. Mercury Development Services, Inc., and,


                          8. Hamden Memorial Funeral Home.


                                               *****


        8. The Receiver’s Turnover Motion is therefore GRANTED.


        IT IS THEREFORE ORDERED THAT the Receiver shall
        return control over Ansure and Quality Marble, Memorial

Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015       Page 22 of 24
               Planning Agency, Meyer Industries, Memory Gardens Logistics,
               American Bronze Craft, Inc., Quality Printers, Mercury
               Development Services, Inc., [and] Hamden Memorial Funeral
               Home to Robert Nelms or his designee.


               IT IS FURTHER ORDERED THAT the Receiver is
               RELEASED from responsibility for any action, event,
               occurrence or liability of Ansure Mortuaries of Indiana, LLC, or
               its affiliates identified in paragraph 7(B) above, arising on or after
               the date of this Order, excepting Memory Gardens Management
               Corporation.


               IT IS FURTHER ORDERED THAT the Receiver shall retain control
               over MGMC, its operating accounts, and the Receiver’s Closeout Account
               until further order of this Court. . . .


       Appellant’s Appendix at 899-901 (emphases added). Thus, the Receivership

       Court was explicit in that it returned certain entities to Nelms but did not return

       MGMC to him, specifically ordering that MGMC “must be wound down” and

       “that the Receiver shall retain control over MGMC . . . until further order of

       this Court.” Id. at 900-901.


[29]   Additionally, MGMC cites to the Securities Commissioner’s motion to revoke

       the receivership and the purchase agreement negotiated between the

       Commissioner and Nelms as further evidence of the return of MGMC to

       Nelms. However, MGMC fails to acknowledge that the Securities

       Commissioner’s motion to revoke the receivership was never approved by the

       Receivership Court and was objected to by the Receiver and tacitly denied by

       the Receivership Court when it approved the Receiver’s re-negotiated APA,

       which included no provision for the return of MGMC to Nelms. Based upon


       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015    Page 23 of 24
       MGMC’s appellant’s brief and our review of the record, we conclude that the

       Old Bridge Parties have demonstrated procedural bad faith on the part of

       MGMC. Moreover, we find that the totality of the violations discussed above

       transcends procedural bad faith and constitutes substantive bad faith. The

       misrepresentations of the record made by MGMC are at the heart of its claim

       on appeal, and after setting aside those misrepresentations, MGMC’s

       arguments are left devoid of all plausibility. Accordingly, the Old Bridge

       Parties are entitled to appellate attorney fees, and we remand to the trial court

       to determine the proper amount of the appellate fee award.


                                                    Conclusion

[30]   For the foregoing reasons, we affirm the trial court’s grant of the Old Bridge

       Parties’ motion for summary judgment, affirm the trial court’s denial of

       MGMC’s cross-motion for summary judgment, grant the Old Bridge Parties’

       request for appellate attorney fees, and remand for a determination of the Old

       Bridge Parties’ reasonable appellate attorney fees.


[31]   Affirmed and remanded.


       Riley, J., and Friedlander, Sr. J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1501-CC-1| September 3, 2015   Page 24 of 24
