                                                              FILED
                                                         Nov 17 2016, 8:29 am

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
SPERRO LLC D/B/A SPERRO                                   Harley K. Means
TOWING AND RECOVERY, FENNER                               John J. Petr
& ASSOCIATES LLC, AND BRIAN                               Steven E. Runyan
FENNER                                                    Kroger, Gardis & Regas, LLP
Hilary Bowe Ricks                                         Indianapolis, Indiana
Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Sperro LLC d/b/a Sperro                                   November 17, 2016
Towing and Recovery, Fenner &                             Court of Appeals Case No.
Associates LLC, Brian Fenner,                             49A02-1601-PL-187
and AMI Asset Management,                                 Interlocutory Appeal from the
Inc.,                                                     Marion Superior Court
Appellants-Defendants,                                    The Honorable Thomas J. Carroll,
                                                          Judge
   and                                                    Trial Court Cause No.
                                                          49D06-1512-PL-40415
Indiana Bureau of Motor
Vehicles,
Declaratory Defendant,

        v.

Ford Motor Credit Company
LLC,



Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016           Page 1 of 27
      Appellee-Plaintiff




      Crone, Judge.


                                               Case Summary
[1]   Sperro LLC d/b/a Sperro Towing and Recovery (“Sperro”) is in the business of

      transporting and storing collateral. Sperro towed and stored certain vehicles

      that had been financed by Ford Motor Credit Company LLC (“FMCC”).

      Sperro sought to assert possessory mechanic’s liens on the vehicles pursuant to

      Indiana Code Section 9-22-6-2 and sold the vehicles. FMCC filed a complaint

      against Sperro, Fenner & Associates LLC, and Brian Fenner (collectively

      “Appellants”), and AMI Asset Management, Inc. (“AMI”), 1 for civil

      conversion, replevin, tortious interference with a contractual relationship, and

      conspiracy to commit fraud. FMCC also filed a petition for a preliminary

      injunction. Following a hearing, the trial court issued a preliminary injunction

      granting FMCC prejudgment possession of specific vehicles in Sperro’s and

      AMI’s possession, ordering Appellants to turn over to FMCC any known or not

      yet identified FMCC-financed vehicles that may be in Appellants’ possession,

      and enjoining Appellants from taking or maintaining possession of any vehicle

      on which FMCC is the lienholder.



      1
       AMI and the Indiana Bureau of Motor Vehicles did not file briefs in this appeal, but Indiana Appellate Rule
      17(A) provides that “[a] party of record in the trial court or Administrative Agency shall be a party on
      appeal.”

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                     Page 2 of 27
[2]   Appellants now bring this interlocutory appeal of the trial court’s entry of

      preliminary injunction. Appellants challenge the trial court’s conclusions that

      they did not comply with Indiana Code Section 9-22-6-2 and that they

      intentionally induced the vehicles’ purchasers to breach their retail installment

      contracts with FMCC or proceeded with reckless disregard of their contractual

      relationship. We conclude that the trial court’s conclusions are not clearly

      erroneous, and therefore we affirm.


                                      Facts and Procedural History
[3]   The following facts are undisputed. 2 Brian Fenner is the sole owner and

      employee of Sperro, an Indiana limited liability company established in

      February 2015, which is in the business of transporting and storing collateral.

      Sperro’s principal office address, as provided in its articles of organization, is

      P.O. Box 163 in Camby, Indiana, 46113. The 46113 zip code covers parts of

      Marion, Morgan, and Hendricks Counties. Fenner testified that P.O. Box 163

      is located in Hendricks County. However, Sperro transports vehicles to and

      stores them at 2534 Bluff Road and 2334 South California Street in

      Indianapolis, Marion County (collectively “the Storage Yards”). Also, Sperro

      advertises that its lien auction sales are held at the Bluff Road property. Fenner

      & Associates LLC is an Indiana limited liability company with its articles of

      incorporation signed by Fenner, and its principal office address is the Bluff

      Road address.



      2
          Appellants challenge only one of the trial court’s findings of fact, which we discuss in Section 1.

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                           Page 3 of 27
[4]   Fenner was a former employee of AMI, a Wisconsin corporation registered to

      do business in Indiana. Dennis Birkley is the sole shareholder of AMI. Fenner

      and Birkley both worked as repossession/recovery agents and have known each

      other for over twenty years. Birkley was Fenner’s mentor at one time.


[5]   FMCC financed some of the vehicles that Sperro transported to and stored in

      the Storage Yards. Seven of these vehicles (“the Vehicles”) are the subject of

      this lawsuit. The Vehicles’ purchasers (“the Borrowers”) financed their vehicles

      through loans from FMCC pursuant to retail installment contracts

      (“Installment Contracts”). The Borrowers have contractually defaulted on their

      payments due to FMCC under the Installment Contracts. The Installment

      Contracts granted to FMCC a continuing security interest in the Vehicles, and

      FMCC perfected its security interest in each of the Vehicles by placing its liens

      on the certificates of title. The Installment Contracts required the Borrowers to

      keep the Vehicles free from the claims of others; not expose the Vehicles to

      misuse, seizure, confiscation, or involuntary transfer; and not sell, rent, lease, or

      transfer any interest in the Vehicles or the Installment Contracts without

      FMCC’s written permission. Plaintiff’s Ex. 28(d). Upon a Borrower’s default

      under the Installment Contract, FMCC was entitled to demand the full amount

      owed and take possession of the Vehicle. However, FMCC was not contacted

      by the Borrowers or Sperro prior to transportation of the Vehicles to the Storage

      Yards and did not consent to Sperro taking possession of and transporting the

      Vehicles hundreds of miles from their surrender points. Sperro transported the




      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 4 of 27
      Vehicles from New Mexico, California, Louisiana, and Arizona to its Storage

      Yards in Indianapolis.


[6]   Fenner operated Sperro according to a certain business plan that the trial court

      referred to as “the Sperro Plan.” Appellants’ App. at 27. Under the Sperro

      Plan, Sperro established contacts with numerous consumer bankruptcy

      attorneys throughout the United States, who would notify Sperro when a

      prospective bankruptcy client had a financed vehicle that he or she could no

      longer afford to make the payments on. Although such vehicles would

      normally be voluntarily surrendered to the secured creditor, Sperro would offer

      to pay the client’s bankruptcy legal fees in exchange for the client’s agreement

      to have the vehicle towed to Indiana and stored pursuant to a Transporting and

      Storage Authorization Agreement (“TSAA”). The TSAA authorized Sperro to

      make the following charges: $1.85 per mile to transport a vehicle to the Bluff

      Road property; a $75 loading fee and a $75 unloading fee; a $45 per day

      outdoor storage fee; a $250 preventive maintenance care package; up to an $800

      fee if a lien sale proceeding commenced; and a $175 administrative fee if the

      owner defaulted under the TSAA. Plaintiff’s Ex. 36. The TSAA also provided

      that the storage fees began to accrue on the date that the bankruptcy client

      entered into the agreement and were due in arrears on the first day of each

      month. Id. Upon declaring a default under the TSAA, Sperro would issue a

      notification of lien to the owner of the vehicle and the lienholder, stating that if

      the demanded amount was not paid within fifteen days, the vehicle would be

      considered abandoned and any lien or interest in the vehicle would be forfeited.


      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 5 of 27
      By signing the TSAA, the client acknowledged that Sperro had a security

      interest in the vehicle and a “right to claim a lien to recover transport/storage

      and other charges incurred.” Id. The Borrowers’ execution of the TSAAs and

      surrender of the Vehicles to Sperro constituted a default on their promises in the

      Installment Contracts to keep the Vehicles free from the claims of any others,

      not to expose the Vehicles to seizure, and not to transfer any interest in the

      Vehicles without FMCC’s written permission.


[7]   Since Fenner implemented the Sperro Plan, approximately 40% of the vehicles

      towed by Sperro to Indianapolis have been redeemed by lienholders who paid

      the towing and storage fees. The people who surrendered vehicles to Sperro

      pursuant to TSAAs have rarely, if ever, picked up or redeemed a vehicle.

      Sperro has sold the remaining vehicles at “purported lien auctions” for the

      alleged towing and storage fees. Appellants’ App. at 14. An auctioneer has

      never been present at any of the lien auctions. Although Sperro purportedly

      held the lien auctions at the Bluff Road property in Marion County, Sperro

      advertised the lien auctions in the Hendricks County Flyer, which is not in general

      circulation in Marion County. Since January 2015, the Indiana Bureau of

      Motor Vehicles (“BMV”) has issued forty-nine new certificates of title for

      vehicles sold at Sperro’s purported lien auctions, and of these, forty-three were

      sold to AMI, three were sold to Sperro, two were sold to Fenner, and one was

      sold to William Boger, Fenner’s neighbor.


[8]   On August 9, 2015, Sperro took possession of three of the Vehicles (“the Group

      1 Vehicles”) that are the subject of this lawsuit. On August 26 and 27, 2015,

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 6 of 27
      Sperro sent a notice of lien for each of these Vehicles to FMCC. The notices of

      lien failed to correctly identify the proper statutory authority for Sperro’s

      asserted liens. On August 29, 2015, Sperro published a notice of sale for the

      Group 1 Vehicles in the Hendricks County Flyer. The notice of sale was

      published within thirty days after Sperro took possession of the Group 1

      Vehicles. On September 14 and 15, 2015, AMI purchased the Group 1

      Vehicles. On November 9, 2015, Sperro sent notice of lien correction

      statements to FMCC, asserting possessory mechanic’s liens on the Group 1

      Vehicles under Indiana Code Section 9-22-6-1.


[9]   Also in August and September 2015, Sperro took possession of three more

      Vehicles (“the Group 2 Vehicles”). On August 24, 2015, Sperro took

      possession of one of these Vehicles. On September 13, 2015, Sperro sent

      FMCC a notice of lien. On October 1, 2015, Sperro published a notice of sale

      for it in the Hendricks County Flyer, and on October 9, 2015, Sperro sold it to

      Collateral Services of Indiana LLC (“CSI”). Fenner is the sole member of CSI.

      On August 24 and September 30, 2015, Sperro purchased the other two Group

      2 Vehicles. On November 9, 2015, Sperro sent notices of lien to FMCC. On

      November 14, 2015, Sperro published notices of sale in the Hendricks County

      Flyer, and on November 28, 2015, Sperro purchased them. The sales of all the

      Group 2 Vehicles occurred less than fifteen days after the notices of sale were

      published. Lastly, Sperro took possession of the seventh Vehicle, a Fiesta, on

      October 7, 2015. Sperro did not send notice to FMCC of its intent to hold a

      mechanic’s lien and has not sold this Vehicle.


      Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 7 of 27
[10]   As of December 22, 2015, FMCC was owed $159,141 under the Installment

       Contracts for the Vehicles. The estimated wholesale value of the Vehicles is

       $95,000. The towing and storage liens on the Vehicles totaled $33,799.50, or

       approximately $4800 per vehicle. The usual and customary cost of a voluntary

       surrender in the towing industry is less than $300.


[11]   FMCC wrote to the BMV to request that it stop and withhold any title transfer

       to Sperro or any alleged lien sale purchase of the Vehicles (“the Stop Title

       Requests”). FMCC sent copies of the Stop Title Requests, along with copies of

       the Installment Contracts, to Sperro and Fenner prior to the alleged sales of the

       Group 2 Vehicles. 3 FMCC made written demand for the return of the Vehicles

       from Sperro and Fenner, which was ignored or refused.


[12]   As a result of the Stop Title Requests, and other irregularities in the title

       applications submitted by Sperro, Fenner, AMI, and CSI, the BMV decided to

       apply a heightened degree of scrutiny based on the potential for fraud.

       Applying this additional scrutiny, the BMV rejected approximately forty title

       applications submitted by AMI for vehicles that it had purchased from Sperro.


[13]   Carla Resler, a legal assistant from the office of FMCC’s counsel, attempted to

       monitor one of Sperro’s lien auctions. Sperro advertised a lien auction in the

       Hendricks County Flyer to be held on December 4, 2015, at 6:30 a.m. at the Bluff




       3
         FMCC asserts that it sent the Stop Title Requests to Sperro prior to the sale of all the Vehicles, but the trial
       court found that FMCC sent the Stop Title Requests prior to the sale of only the Group 2 Vehicles.
       Appellants’ App. at 17 (finding 50).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                           Page 8 of 27
       Road property. At the specified time, Resler went to the Bluff Road property,

       but no lights were on at the sale site, and Fenner was not present. In fact,

       Resler was the only person there. She then went to the California Street

       property, but no one was there either. Nevertheless, Sperro submitted title

       applications to the BMV for twelve vehicles that it allegedly purchased for cash

       at the December 4, 2015 lien auction.


[14]   In December 2015, FMCC filed a complaint for damages, possession,

       temporary restraining order, and preliminary and permanent injunctions against

       Appellants and naming the BMV as a declaratory defendant. FMCC asserted

       causes of action against Appellants based on conversion, replevin, tortious

       interference with a contract, and conspiracy to commit fraud. The same day,

       FMCC also filed a petition for temporary restraining order and preliminary and

       permanent injunctions. The trial court held a hearing on FMCC’s petition, at

       which FMCC submitted thirty-six exhibits and called four witnesses, and

       Sperro submitted ten exhibits and called two witnesses.


[15]   In January 2016, the trial court issued findings of fact, conclusions thereon, and

       entry of preliminary injunction and prejudgment possession (“Entry of

       Preliminary Injunction”) in favor of FMCC. The findings of fact provide that

       since June 2015, five additional complaints have been filed and are being

       litigated in Marion Superior Court against Fenner, Sperro, CSI, and AMI based

       on facts similar to those set forth above and in FMCC’s complaint (“the Sperro

       Plan Litigation”). The conclusions provide as follows:



       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 9 of 27
        6. Upon a request by a party for prejudgment possession, “the
        court shall consider the showing made by the parties appearing
        and make a preliminary determination which party, with
        reasonable probability, is entitled to possession, use, and
        disposition of the property, pending final adjudication of the
        claims of the parties.” Ind. Code § 32-35-2-14.


        7. FMCC is the superior, proper and first lien holder in the
        Vehicles, perfected by FMCC’s liens noted on the certificates of
        titles, with priority over any alleged lien or right asserted by
        Sperro, Fenner, CSI and AMI.


        8. Accordingly, in determining whether FMCC is entitled to
        prejudgment possession, the issue is whether there is a reasonable
        probability that FMCC’s interests in the Vehicles by virtue of its
        perfected liens noted on the certificates of title are superior to
        Sperro’s claimed interests, if any, by virtue of alleged statutory
        possessory liens and sales.


        ….


        10. A vehicle subject to a possessory mechanic’s lien cannot be
        advertised for sale sooner than thirty (30) days after the date the
        vehicle is left in, or comes into, the possession of the claimant
        and thereafter cannot be sold earlier than fifteen (15) days after
        the date the advertisement is published. Ind. Code § 9-22-6-2.
        Accordingly, there is a minimum time period of forty-five (45)
        days before a vehicle subject to a possessory lien can legally be
        sold.


        ….


        12. Sperro advertised the sales of the [Group 1 Vehicles] less
        than thirty (30) days after the date the three vehicles came into

Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 10 of 27
        the possession of Sperro. Accordingly, the alleged lien sales
        relating to the [Group 1 Vehicles] to AMI are invalid.


        13. Sperro cited to inapplicable Indiana Code sections in the
        Notices relating to the [Group 1 Vehicles] and acknowledged
        these misstatements in the Corrected Notices. Accordingly, the
        lien sales relating to the [Group 1 Vehicles] to AMI are invalid
        for the additional reason that the Corrected Notices were not
        transmitted to FMCC prior to sale to AMI.


        14. The mechanic’s lien sales relating to the [Group 2 Vehicles]
        were less than (15) days after the date the advertisements were
        placed in the Hendricks County Flyer. Accordingly, the alleged
        lien sales purporting to sell the [Group 2 Vehicles] to Sperro were
        invalid.


        15. The mechanic’s lien sales relating to the Vehicles
        purportedly sold to AMI, Sperro and CSI were solely advertised
        in the [Hendricks County] Flyer, a newspaper that does not
        generally circulate in Indianapolis, Marion County, Indiana, the
        city where Sperro is located. Accordingly, the alleged lien sales
        relating to the Vehicles are invalid.


        ….


        19. There is a substantial risk that [Appellants] will seek to sell
        or transfer title to the Vehicles or move them from their current
        locations in Indianapolis, Indiana and Mukwonago, Wisconsin
        in an effort to hide them, prior to a determination of the merits of
        this controversy, which will cause irreparable harm to FMCC.


        ….




Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 11 of 27
        21. [Appellants’] attempted sales and transfers of the titles to
        the Vehicles, possible movement of the Vehicles, and Sperro’s
        and Fenner’s likely ongoing solicitation and transportation of
        additional vehicles in which FMCC maintains liens justifies
        emergency action by this court.


        22.     FMCC’s remedies at law are inadequate.


        23. The threatened injury [Appellants’] continued conduct will
        cause to FMCC outweighs any harm to [Appellants] from being
        preliminarily enjoined from selling or transferring title to the
        Vehicles, moving the Vehicles, and from taking possession of and
        transporting additional vehicles in which FMCC holds liens from
        throughout the country for the obvious purpose of obtaining and
        enforcing towing, storage and mechanic’s liens under the dubious
        business model called “the Sperro Plan”, until this Court enters a
        final judgment on the legality and validity of [Appellants’]
        conduct and alleged liens or ownership of the Vehicles.


        24. The alleged lien auctions did not comply with Indiana
        Code § 9-22-6-2.


        25. FMCC has a reasonable likelihood of success on the merits
        at trial by having established a prima facie case that Sperro,
        Fenner, CSI and AMI are not in lawful possession of the
        Vehicles.


        26. Sperro, Fenner, and AMI have exerted unauthorized
        dominion and control over the Vehicles in contravention of
        FMCC’s first priority liens, by among other things, refusing to
        release the Vehicles to FMCC despite demand, demanding
        seemingly exorbitant transport and storage charges of
        questionable economic justification, and attempting to sell and
        re-title the Vehicles.


Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 12 of 27
               ….


               29. Sperro and Fenner had or should have had general
               knowledge of the existence of retail installment contracts between
               FMCC and Borrowers and the general provisions therein. ….


               30. The TSAA[s] between Sperro and the Borrowers, by their
               very terms, violate the Borrowers’ Installment Contracts with
               FMCC.


               31. Sperro and Fenner have intentionally induced the breach of
               the Installment Contracts between Borrowers and FMCC, or
               proceeded with reckless disregard to the contractual relationship
               between Borrowers and FMCC.


               ….


               33. The public interest is not disserved by granting a
               preliminary injunction. To the contrary, the public interest is
               likely served by granting the requested injunctive relief due to the
               very similar allegations and causes of actions asserted in the
               Sperro Plan Litigation; also that the Declaratory Defendant [the
               BMV] has no objection to the prayed for relief.


       Appellants’ App. at 23-28.


[16]   Based on the findings of fact and conclusions thereon, the Entry of Preliminary

       Injunction (1) orders Sperro and AMI to immediately surrender the Vehicles in

       their possession to FMCC; (2) orders FMCC to post a surety bond for the

       protection of Sperro and AMI in the amount of $101,000; (3) enjoins the BMV

       from processing any application by the Appellants or AMI for issuance or


       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 13 of 27
       transfer of a title related to the Vehicles; (4) authorizes the BMV to issue

       certificates of title to FMCC for the Vehicles upon submission of the

       appropriate title application documents; (5) authorizes FMCC to sell the

       Vehicles in mitigation of the remaining indebtedness relating to them; (6) orders

       Appellants, AMI, and any entity with which Fenner is an owner, officer, agent,

       or employee to immediately turn over to FMCC any known or not yet

       identified FMCC-financed vehicles that may be in their possession or come into

       their possession; and (7) enjoins Appellants, AMI, and any entity with which

       Fenner is an owner, officer, agent, or employee from taking or maintaining

       possession of any vehicle in which FMCC is the lienholder. Id. at 29-31. This

       appeal ensued. 4


                                         Discussion and Decision

                                             Standard of Review
[17]   The trial court is required to issue special findings of fact and conclusions

       thereon when determining whether to grant a preliminary injunction. Thornton-

       Tomasetti Eng’rs v. Indianapolis-Marion Cnty. Pub. Library, 851 N.E.2d 1269, 1277

       (Ind. Ct. App. 2006); Ind. Trial Rule 52(A). Here, the findings and conclusions




       4
          Appellants’ and FMCC’s appendices do not comply with the Indiana Rules of Appellate Procedure
       because they contain exhibits, which are considered part of the transcript and therefore are not to be
       reproduced in an appendix pursuant to Appellant Rules 29 and 50(F). In addition, FMCC’s appellee’s brief
       is not in compliance with our rules because the citations are placed in footnotes rather than in the text of the
       document. Ind. Appellate Rule 22 (requiring adherence to Bluebook rules); see THE BLUEBOOK: A UNIFORM
       SYSTEM OF CITATION R. B1, at 3-4 (Columbia Law Review Ass’n et al. eds., 20th ed. 2016) (“In non-
       academic legal documents, such as briefs and opinions, citations generally appear within the text of the
       document directly after the propositions they support.”).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                        Page 14 of 27
       also apply to the trial court’s grant of prejudgment possession of the Vehicles to

       FMCC. We review the special findings and conclusions for clear error. Ind.

       Trial Rule 52(A).

               Findings of fact are clearly erroneous when the record lacks
               evidence or reasonable inferences from the evidence to support
               them. A judgment is clearly erroneous when a review of the
               record leaves us with a firm conviction that a mistake has been
               made. We consider the evidence only in the light most favorable
               to the judgment and construe findings together liberally in favor
               of the judgment.


       Orndorff v. Ind. Bureau of Motor Vehicles, 982 N.E.2d 312, 319 (Ind. Ct. App.

       2012) (quoting Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 912 (Ind. Ct. App.

       2011)), trans. denied (2013).


                 Section 1 – The trial court did not err in awarding
                 prejudgment possession of the Vehicles to FMCC.
[18]   Appellants first challenge the trial court’s decision to grant prejudgment

       possession of the Vehicles to FMCC. Prejudgment possession of the Vehicles is

       governed by Indiana’s replevin statute, Indiana Code Chapter 32-35-2. “A

       replevin action is a speedy statutory remedy designed to allow one to recover

       possession of property wrongfully held or detained as well as any damages

       incidental to the detention.” United Farm Family Mut. Ins. Co. v. Michalski, 814

       N.E.2d 1060, 1066 (Ind. Ct. App. 2004). Indiana Code Section 32-35-2-1

       provides that if personal goods are “wrongfully taken or unlawfully detained

       from the owner or person claiming possession of the property,” an action for


       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 15 of 27
       the possession of property may be brought by the owner or claimant. To

       recover in a replevin action, the plaintiff “must prove his title or right to

       possession, that the property is unlawfully detained, and that the defendant

       wrongfully holds possession thereof.” Michalski, 814 N.E.2d at 1066 (citing

       Snyder v. Int’l Harvester Credit Corp., 147 Ind. App. 364, 368, 261 N.E.2d 71, 73

       (1970)). When a party requests prejudgment possession in an action for

       replevin, the trial court is required to “(1) consider the showing made by the

       parties appearing; and (2) make a preliminary determination which party, with

       reasonable probability, is entitled to possession, use, and disposition of the

       property, pending final adjudication of the claims of the parties.” Ind. Code §

       32-35-2-14. If the trial court determines “that a prejudgment order of

       possession in the plaintiff's favor should issue, the court shall issue the order.”

       Ind. Code § 32-35-2-15.


[19]   Appellants concede that FMCC has perfected first liens on the Vehicles by

       virtue of the Installment Contracts and the notices of lien placed on the

       Vehicles’ certificates of title. However, Appellants contend that the trial court

       erred in concluding that they failed to comply with Indiana Code Section 9-22-

       6-2, the possessory mechanic’s lien statute (“the Statute”). Specifically, they

       contend that the trial court misinterpreted the Statute. In addressing their

       argument, we are required to apply our rules of statutory interpretation:

               A question of statutory interpretation is a matter of law. In such
               interpretation, the express language of the statute and the rules of
               statutory interpretation apply. We will examine the statute as a
               whole, and avoid excessive reliance on a strict literal meaning or

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 16 of 27
                the selective reading of words. Where the language of the statute
                is clear and unambiguous, there is nothing to construe.
                However, where the language is susceptible to more than one
                reasonable interpretation, the statute must be construed to give
                effect to the legislature’s intent. The legislature is presumed to
                have intended the language used in the statute to be applied
                logically and not to bring about an absurd or unjust result. Thus,
                we must keep in mind the objective and purpose of the law as
                well as the effect and repercussions of such a construction.


       A.J. v. Logansport State Hosp., 956 N.E.2d 96, 104-05 (Ind. Ct. App. 2011)

       (quoting In re J.J., 912 N.E.2d 909, 910 (Ind. Ct. App. 2009)). 5


[20]   “The possessory mechanic’s lien statute is meant to ensure that a garage

       mechanic/repairman is reimbursed for the reasonable amount of the repairs

       performed at the request of the vehicle’s owner.” Banks v. Jamison, 12 N.E.3d

       968, 983 (Ind. Ct. App. 2014). 6 “A possessory lien on a motor vehicle is




       5
         The parties and the trial court state that “possessory liens” are in derogation of common law and therefore
       are strictly construed. Appellants’ App. at 24; Appellants’ Br. at 20-21; Appellee’s Br. at 23. In support of
       this principle, they cite Deluxe Sheet Metal, Inc. v. Plymouth Plastics, Inc., 555 N.E.2d 1296, 1298 (Ind. Ct. App.
       1990), trans. denied (1991), cert. denied. However, the Deluxe court did not state that possessory liens are in
       derogation of common law; it stated that “the mechanic’s lien statutes are in derogation of common law.”
       Id. The Deluxe court was discussing the construction of the statute governing nonpossessory mechanic’s liens.
       Possessory mechanic’s liens and nonpossessory mechanic’s liens are different and are governed by different
       statutes. The possessory mechanic’s “lien was long recognized at common law,” and “[b]y contrast the
       second species of mechanic’s lien is known as non-possessory because it dispenses with the common law
       requirement of possession.” Jones v. Harner, 684 N.E.2d 560, 562 (Ind. Ct. App. 1997). The Jones court
       explained that the requirement “of the filing of a notice of intention to hold mechanic’s lien and the absence
       of a requirement that the person remain in possession of the vehicle represent a significant departure from the
       common law. As such the notice provision must be strictly construed.” Id. at 563. Accordingly, we
       conclude that the strict construction language in Deluxe does not apply to the possessory mechanic’s lien
       statute.
       6
         Appellants do not challenge the trial court’s conclusion that the Sperro Plan does not serve the purpose of
       the Statute. See Appellants’ App. at 29 (“[N]one of the services Sperro claims it performed conferred any real
       benefit to the Borrowers, and certainly not to FMCC.”).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                          Page 17 of 27
       perfected by retention of possession of the vehicle by the person asserting the

       lien.” Gangloff Indus., Inc. v. Generic Fin. & Leasing, Corp., 907 N.E.2d 1059, 1066

       (Ind. Ct. App. 2009). “A possessory mechanic’s lien is foreclosed ‘by sale

       without judicial process [and up]on notice to the owner.’” Banks, 12 N.E.3d at

       979 (quoting Hendrickson & Sons Motor Co. v. Osha, 165 Ind. App. 185, 202, 331

       N.E.2d 743, 754 (1975)).


[21]   The version of the Statute in effect from January 1, 2015, to June 30, 2016, the

       time period during which Sperro took possession of the Vehicles, provides as

       follows:

               (a) An individual, a firm, a limited liability company, or a
               corporation that performs labor, furnishes materials or storage, or
               does repair work on a motor vehicle, trailer, semitrailer, or
               recreational vehicle at the request of the person that owns the
               vehicle has a mechanic’s lien on the vehicle for the reasonable
               value of the charges for the labor, materials, storage, or repairs.


               (b) An individual, a firm, a partnership, a limited liability
               company, or a corporation that provides towing services for a
               motor vehicle, trailer, semitrailer, or recreational vehicle at the
               request of the person that owns the motor vehicle, trailer,
               semitrailer, or recreational vehicle has a mechanic’s lien on the
               vehicle for the reasonable value of the charges for the towing
               services and other related costs.


               (c) If:


                         (1) the charges made under subsection (a) or (b) are not paid; and




       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016       Page 18 of 27
                 (2) the motor vehicle, trailer, semitrailer, or recreational vehicle is
                 not claimed;


        not later than thirty (30) days after the date on which the vehicle is left in
        or comes into the possession of the individual, firm, limited liability
        company, or corporation for repairs, storage, towing, or the
        furnishing of materials, the individual, firm, limited liability
        company, or corporation may advertise the vehicle for sale. The
        vehicle may not be sold earlier than fifteen (15) days after the date the
        advertisement required by subsection (d) has been placed or fifteen (15)
        days after notice required by subsection (e) has been sent,
        whichever is later.


        (d) Before a vehicle may be sold under subsection (c), an
        advertisement must be placed in a newspaper that is printed in English
        and of general circulation in the city or town in which the lienholder’s
        place of business is located. If the lienholder is located outside the
        corporate limits of a city or a town, the advertisement must be
        placed in a newspaper of general circulation in the county in
        which the place of business of the lienholder is located. The
        advertisement must contain at least the following information:


                 (1) A description of the vehicle, including make, type, and
                 manufacturer’s identification number.


                 (2) The amount of the unpaid charges.


                 (3) The time, place, and date of the sale.


        (e) In addition to the advertisement required under subsection
        (d), the person that holds the mechanic’s lien must notify the
        person that owns the vehicle and any other person that holds a
        lien of record at the person’s last known address by certified mail,
        return receipt requested, that the vehicle will be sold at public

Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016           Page 19 of 27
                 auction on a specified date to satisfy the mechanic’s lien imposed
                 by this section.


       (Emphases added.)


[22]   Here, the trial court concluded that Sperro failed to satisfy the statutory

       requirements by advertising the sales of the Group I Vehicles within thirty days

       after the date they came into Sperro’s possession. The trial court concluded

       that Section 9-22-6-2(c) requires that vehicles not be advertised for sale until

       thirty days after the vehicle was left in or came into possession of the mechanic.

       Appellants disagree with the trial court’s reading of subsection (c), arguing that

       it states that “a vehicle may be advertised ‘not later than thirty days after the

       date on which the vehicle is left in or comes into the possession of the

       lienholder.’” Appellants’ Br. at 19 (emphasis and brackets omitted). They

       assert that they complied with subsection (c) because the Group 1 Vehicles were

       advertised within thirty days of the date they came into Sperro’s possession.


[23]   We disagree with Appellants’ selective reading of subsection (c). Reading the

       subsection in its entirety reveals that it provides that if the charges made under

       subsection (a) or (b) are not paid and the vehicle is not claimed not later than thirty

       days after the date the vehicle is left in or comes into the possession of the

       mechanic, the mechanic may advertise the vehicle for sale. 7 Thus, after the




       7
           The current version of Section 9-22-6-2(c) supports our reading. It now provides,
               (c) A person that has a mechanic’s lien on a vehicle under subsection (a) or (b) may advertise the
               vehicle for sale if:

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                       Page 20 of 27
       vehicle comes into possession of the mechanic, the mechanic must wait thirty

       days to allow an opportunity for the charges to be paid or the vehicle to be

       claimed before advertising the vehicle for sale. Appellants’ reading would have

       the absurd result of permitting a mechanic to advertise the sale of a vehicle just

       one day after the vehicle was left in or came into his or her possession

       regardless of whether the owner had defaulted and without allowing the owner

       an opportunity to claim the vehicle. Therefore, we conclude that the trial court

       did not err in interpreting Section 9-22-6-2(c) and concluding that the

       publication of the notices of sale of the Group 1 Vehicles was not in compliance

       with the Statute. Accordingly, the trial court did not err in concluding that the

       sales of the Group 1 Vehicles were invalid. 8


[24]   As for the Group 2 Vehicles, the trial court concluded that the mechanic’s lien

       sales were invalid because the sales occurred less than fifteen days after the date

       that the notices of sale were published. Appellants claim that two of these sales

       occurred at least fifteen days after the sale date was published. Appellants’ Br.

       at 20. They are simply mistaken. The notice of sale of one of the Group 2

       Vehicles was published on October 1, 2015, and that vehicle was sold on




             (1) the charges made under subsection (a) or (b) are not paid; and
             (2) the vehicle is not claimed;
             within thirty (30) days after the date on which the vehicle is left in or comes into the possession
             of the person for repairs, storage, towing, or the furnishing of materials. The vehicle may not be
             sold until the later of fifteen (15) days after the date the advertisement required by subsection (d)
             has been placed or fifteen (15) days after notice required by subsection (e) has been sent.
       8
         We observe that the sale of the Group 1 Vehicles was also invalid because the sales occurred before FMCC
       received corrected notices of liens. Appellants’ App. at 25 (Conclusion 13).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                        Page 21 of 27
       October 9, 2015. The other two notices of sale were published on November

       14, 2015, and those vehicles were sold on November 28, 2015. Accordingly,

       the trial court did not err in concluding that the sales of the Group 2 Vehicles

       did not comply with Section 9-22-6-2(c) and therefore were invalid. 9


[25]   Appellants also assert that the trial court erred in concluding that the sales of

       the Vehicles were invalid because Sperro’s publication of the notices of sale in

       the Hendricks County Flyer did not comply with Section 9-22-6-2(d). Subsection

       (d) states that the advertisement for sale must be placed in a newspaper of

       general circulation in the city or town in which the mechanic’s “place of

       business” is located. The trial court concluded that the Hendricks County Flyer

       was not in general circulation in Indianapolis, Marion County, where Sperro’s

       “place of business” is located. The sole finding of fact Appellants challenge is

       that Sperro’s “place of business” is located in Indianapolis, Marion County.

       Appellants contend that the “place of business” would reasonably include the

       address registered with the secretary of state for the principal office, and

       Sperro’s principal office as provided in its articles of incorporation is P.O. Box

       163, Camby, Indiana, 46113. Fenner testified that this P.O. Box is in

       Hendricks County.


[26]   Although Title 9 of the Indiana Code, does not define the term “place of

       business,” under the facts of this case, we can say with certainty that Sperro’s



       9
        Also, the sale of one of the Group 2 Vehicles is invalid for the additional reason that Sperro sent the notice
       of lien to FMCC within thirty days of the date the vehicle came into Sperro’s possession: Sperro took
       possession of that vehicle on August 24, 2015, and sent FMCC a notice of lien on September 13, 2015.

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                       Page 22 of 27
P.O. Box is merely a mailing address and not a place of business. Cf. Ind. Code

§ 9-13-2-50 (“‘Established place of business’ means a permanent enclosed

building or structure owned or leased for the purpose of offering for sale,

trading, and selling motor vehicles. The term does not include a residence, tent,

temporary stand, or permanent quarters temporarily occupied.”). Appellants

cite to no evidence in the record that Sperro conducted any of its business at

P.O. Box 163 in Camby. It is undisputed that the Vehicles were towed to and

stored at the Storage Yards and that the purported lien auctions were advertised

as being held in Indianapolis, Marion County. When Fenner was asked at his

deposition which county Sperro does business in, he answered, “Marion

[County].” Appellee’s App. Vol. III at 126. Accordingly, the trial court did not

err in concluding that Sperro’s place of business was located in Indianapolis,

Marion County, that Sperro’s advertisements in the Hendricks County Flyer did

not comply with Section 9-22-6-2(d), and that the sales of the Vehicles were

invalid for this reason. See Mobile Home Mgmt. Indiana, LLC v. Avon Vill. MHP,

LLC, 17 N.E.3d 275, 281 (Ind. Ct. App. 2014) (concluding that auction was

invalid because of failure to comply with notice requirements for sale of mobile

homes), trans. denied (2015). Because Appellants failed to comply with the

Statute, there is a reasonable probability that FMCC is entitled to possession of

the Vehicles by virtue of its perfected first liens on the Vehicles, and therefore

the trial court did not err in granting prejudgment possession of the Vehicles to

FMCC.




Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 23 of 27
       Section 2 – The trial court did not err in granting a preliminary
                                  injunction.
[27]   Appellants also claim that the trial court erred in ordering them to surrender to

       FMCC any known or not yet identified FMCC-financed vehicle in their

       possession and enjoining them from taking or maintaining possession of any

       vehicle in which FMCC is a lienholder. “The issuance of a preliminary

       injunction is within the sound discretion of the trial court, and the scope of our

       review is limited to deciding whether there has been a clear abuse of

       discretion.” City of Gary v. Mitchell, 843 N.E.2d 929, 932-33 (Ind. Ct. App.

       2006). “Preliminary injunctions are generally used to preserve the status quo as

       it existed before a controversy, pending a full determination on the merits of the

       dispute.” Stoffel v. Daniels, 908 N.E.2d 1260, 1272 (Ind. Ct. App. 2009). To

       obtain a preliminary injunction, the moving party typically must show by a

       preponderance of the evidence that

                (1) the movant’s remedies at law are inadequate, thus causing
                irreparable harm pending resolution of the substantive action; (2)
                the movant has at least a reasonable likelihood of success at trial
                by establishing a prima facie case; (3) threatened injury to the
                movant outweighs the potential harm to the nonmoving party
                resulting from the granting of an injunction; and (4) the public
                interest would not be disserved.


       Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind.

       2003).




       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 24 of 27
[28]   Appellants apparently concede that FMCC carried its burden with respect to

       factors (1), (3), and (4) because they do not discuss these factors in their brief.

       Therefore, we will not address them. Appellants’ sole argument is that FMCC

       failed to carry its burden to show that it has “at least a reasonable likelihood of

       success at trial by establishing a prima facie case.” Id. Specifically, Appellants

       contend that the trial court erred in concluding that Sperro and Fenner

       intentionally induced the breach of the Installment Contracts between

       Borrowers and FMCC or proceeded with reckless disregard of the contractual

       relationship between Borrowers and FMCC. 10 Appellants implicitly challenge

       the trial court’s conclusion that Sperro and Fenner had or should have had

       general knowledge of the existence of retail installment contracts between

       FMCC and Borrowers and the general provisions therein.


[29]   Appellants recognize that, pursuant to the Installment Contracts, the Borrowers

       agreed to keep the Vehicles free from the claims of others and not to transfer

       any interest in the Vehicles without FMCC’s written permission. Appellants

       concede that the TSAAs, by their very terms, violate the Borrowers’ Installment

       Contracts. Appellants also acknowledge that the Installment Contracts give

       FMCC the right to take possession of the Vehicle upon the Borrower’s default

       of any promise. However, they contend that the trial court’s conclusion that




       10
          The conclusion addresses an element of FMCC’s action for tortious interference with a contract. Tortious
       interference with a contractual relationship consists of the following elements: (1) the existence of a valid and
       enforceable contract; (2) the defendants’ knowledge of the existence of the contract; (3) the defendants’
       intentional inducement of breach of the contract; (4) the absence of justification; and (5) resultant damages.
       Sheets v. Birky, 54 N.E.3d 1064, 1072 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                        Page 25 of 27
       Sperro and Fenner intentionally or recklessly induced the Borrowers to default

       on their Installment Contracts is speculative. They argue that Fenner testified

       that he never personally financed a vehicle and that none of the Borrowers

       testified at the hearing regarding why they entered into a TSAA with Sperro.


[30]   We observe that Appellants do not challenge the trial court’s finding that

       Fenner worked in the repossession business for twenty years. Also, Sperro’s

       business was to transport and store collateral, and therefore Fenner had to

       know that all the vehicles surrendered to Sperro pursuant to the TSAAs have

       been financed and are subject to the liens. Fenner’s business experience

       supports the trial court’s conclusions that he had or should have had general

       knowledge that the Borrowers purchased the Vehicles pursuant to retail

       installment contracts and the provisions generally included therein.

       Accordingly, the trial court did not err in concluding that Sperro and Fenner

       intentionally induced the breach of the Installment Contracts between the

       Borrowers and FMCC or proceeded with reckless disregard of the contractual

       relationship between the Borrowers and FMCC. 11 Therefore, we affirm the trial

       court in all respects.




       11
           Appellants also argue that the trial court erred in concluding that FMCC did not abandon the Vehicles.
       They argue that they reasonably believed that FMCC abandoned the Vehicles because FMCC had previously
       recovered six other vehicles by paying the towing and storage fees. However, Appellants do not explain how
       abandonment is relevant to the trial court’s decisions to grant prejudgment possession or a preliminary
       injunction. FMCC suggests that “Sperro asserts that FMCC abandoned the Vehicles as the sole ‘good faith’
       justification why it should not be held liable for [civil] conversion.” Appellee’s Br. at 35. FMCC correctly
       states that “no mens rea is required and good faith is not a defense in a civil conversion action.” Id. at 34
       (citing Schrenker v. State, 919 N.E.2d 1188, 1194 (Ind. Ct. App. 2010)). Therefore, we conclude that
       Appellants’ abandonment argument is without merit.

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016                    Page 26 of 27
[31]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1601-PL-187 | November 17, 2016   Page 27 of 27
