MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 15 2019, 7:32 am

court except for the purpose of establishing                        CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR
Kristin A. Mulholland                                    APPELLEES/CROSS-APPELLANT
Crown Point, Indiana                                     Mary P. Lake
                                                         LaPorte, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jacob M. Pasternac and                                   May 15, 2019
Rainbow Community, Inc.,                                 Court of Appeals Case No.
Appellants-Defendants,                                   46A05-1704-MI-816
                                                         Appeal from the LaPorte Superior
        v.                                               Court
                                                         The Honorable Michael S.
Robert A. Harris, TWG Merrill,                           Bergerson, Judge
LLC, BPRS Green Acres, LLC,                              Trial Court Cause No.
and Weiner Green Acres, LLC,                             46D01-1702-MI-229
Appellees/Cross-Appellants-Plaintiffs.



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019      Page 1 of 11
                                       Statement of the Case
[1]   This appeal returns to our Court following a remand to the trial court for a new

      order containing specific findings of fact and conclusions thereon in its

      preliminary injunction ruling involving a mobile home. The trial court’s order

      following remand: (1) granted the preliminary injunction request sought by

      Plaintiffs/Appellees, TWG Merrill, LLC, BPRS Green Acres, LLC, and

      Weiner Green Acres, LLC (collectively, “Green Acres”); and (2) denied the

      preliminary injunction request sought by Plaintiff/Appellee, Robert A. Harris

      (“Harris”), after determining that he was no longer the owner of the mobile

      home at issue.


[2]   Defendants/Appellants, Jacob M. Pasternac (“Pasternac”) and Rainbow

      Community, Inc. (“Rainbow Community”), appeal the trial court’s grant of the

      preliminary injunction to Green Acres. Harris cross-appeals the trial court’s

      denial of his request for a preliminary injunction. Because neither Green Acres

      nor Harris met their burden of showing the necessary factors for obtaining a

      preliminary injunction, we reverse the trial court’s grant of a preliminary

      injunction to Green Acres and affirm the trial court’s denial of a preliminary

      injunction to Harris.


[3]   We reverse in part and affirm in part.


                                                    Issues
              Appeal Issue: Whether the trial court abused its discretion when it
              granted Green Acres’ motion for a preliminary injunction.


      Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 2 of 11
               Cross-Appeal Issue: Whether the trial court abused its discretion
               when it denied Harris’ motion for a preliminary injunction.

                                                         Facts1
[4]   This appeal involves a mobile home in the Green Acres mobile home

      community. A non-party, Sandra Clements (“Clements”)—who had received

      the mobile home from Harris, had the title to the mobile home, had lived in the

      mobile home for over ten years, and had a mobile home site rental agreement

      (“rental agreement”) containing a right-of-first-refusal clause2 with Green



      1
       The underlying facts of this appeal can be found in our previous memorandum decision. See Pasternac v.
      Harris, No. 46A05-1704-MI-816 (Ind. Ct. App. May 31, 2018).
      2
        The right-of-first-refusal clause in the rental agreement between Green Acres and Clements provided as
      follows:
             15. Management Right of First Refusal: If Resident desires to sell his or her manufactured
             home located within the Community, Resident shall serve written notice upon [Green Acres] of
             Resident’s attempt to sell his or her manufactured home. The written notice must contain the
             names and addresses of the bona fide prospective purchasers, the proposed purchase price, and
             full and exact disclosure of the material terms and conditions of such sale (if available, a copy of
             the then existing purchase Contract or bill of sale shall be submitted to [Green Acres] with said
             notice). Upon actual receipt of the written notice, [Green Acres] shall have SEVENTY[-]TWO
             (72) hours thereafter, not including Saturdays, Sundays or Legal Holidays, in which to
             INSPECT THE MANUFACTURED HOME, SHED AND ATTACHMENTS, AND TO
             notify Resident of [Green Acres’] intent to purchase based upon the PURCHASE PRICE, terms
             and conditions as set forth in said offer. If [Green Acres] rejects that offer or fails to notify
             Resident with Seventy[-] Two (72) hours, such failure shall be construed as a rejection and
             Resident may sell his or her manufactured home to the prospective purchaser named in the
             Notice upon the terms and conditions set forth so long as any prospective purchaser desiring to
             lease the Home Site meets the other reasonable requirements of [Green Acres], including those
             listed in the site rental agreement, the Community Rules and Regulations and/or the
             Requirements For Installing or Removing a Home From the Community Disclosure. . . . If
             [Green Acres] matches the terms of the offer, [Green Acres] shall pay Resident according to
             those terms within seven (7) days (Saturday, Sunday, or Legal Holidays shall not be included in
             the seven (7) day time requirement) upon Resident delivering clear title and possession of the
             manufactured home to [Green Acres]. If Resident sells the home in violation of this provision
             [or] this site rental agreement, this site rental agreement, the Community Rules and Regulations
             and/or the Requirements For Installing or Removing a Home From the Community
             Disclosure, or applicable law, then the buyer will be deemed to be a Trespasser and will be
             evicted from [Green Acres’] property and the Resident will remain responsible for the payment
             of home site fee(s) and other charges through the end of the initial term of Agreement or, after
             this Agreement is renewed on a month-to-month basis, the rental period.
      (Appellees’ Ex. 3(b)).

      Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019                  Page 3 of 11
      Acres—sold the mobile home and gave the title to Pasternac and Rainbow

      Community. Clements did so without providing written notice to Green Acres

      or allowing Green Acres to exercise its right of first refusal as set forth in the

      rental agreement. Thereafter, Pasternac went to the Indiana Bureau of Motor

      Vehicles (“BMV”), had the title to the mobile home put in Rainbow

      Community’s name, and then attempted to move the mobile home from Green

      Acres’ premises. Pasternac was unable to remove the mobile home because an

      employee of Green Acres physically blocked him from doing so.


[5]   Thereafter, Harris and Green Acres filed a complaint against Pasternac and

      Rainbow Community but not against Clements. In their two-count complaint,

      they sought an injunction (Count 1) and damages based on a statutory violation

      of counterfeiting, forgery, and/or fraud (Count 2). 3 As to Count 1, Harris and

      Green Acres alleged that Harris was the owner of the mobile home at issue and

      had not authorized the sale of it to Pasternac and Rainbow Community. At the

      same time, they alleged that Green Acres was entitled to exercise its right of

      first refusal pursuant to its rental agreement with Clements.4 For Count 1,

      Harris and Green Acres sought injunctive relief and monetary damages.

      Specifically, they sought: (1) to enjoin Pasternac and Rainbow Community

      from removing the mobile home from Green Acres until ownership of the




      3
       Specifically, Harris and Green Acres alleged that Pasternac and Rainbow Community had violated
      INDIANA CODE § 35-43-5-2 and/or § 35-43-5-3.
      4
       As we noted in our prior memorandum decision, Harris and Green Acres “seemed to have [had]
      conflicting interests in their joint complaint.” See Pasternac, No. 46A05-1704-MI-816 at *2 n.1.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019            Page 4 of 11
      mobile home had been determined by the trial court; (2) an order directing

      Pasternac and Rainbow Community to rescind their title to the mobile home;

      (3) an order allowing Green Acres to exercise its right of first refusal for the

      purchase of the mobile home; (4) an award of monetary damages to Harris and

      Green Acres to compensate them for any damages; and (5) court costs. As for

      Count 2, Harris and Green Acres alleged that Pasternac and Rainbow

      Community had fraudulently obtained a mobile home title from the BMV by

      “misrepresenting their own interest[s] in the mobile home with full knowledge

      that Plaintiffs’ [Harris and Green Acres] rights and ownership interests were

      being fraudulently terminated and misrepresented.” (App. Vol. 2 at 7). For

      Count 2, Harris and Green Acres alleged that they had “suffered a pecuniary

      loss as a result of” Pasternac and Rainbow Community’s statutory violations,

      and, pursuant to INDIANA CODE § 34-24-3-1, they sought treble damages,

      attorney fees, and costs.


[6]   The trial court initially issued a temporary restraining order, directing Pasternac

      and Rainbow Community that they were not to remove the mobile home from

      the Green Acres premises until the issues in the action were fully determined.

      Thereafter, the trial court held a preliminary injunction hearing. During this

      hearing, the parties agreed that the trial court should determine the underlying

      ownership issue at the same time that it considered Harris’ and Green Acres’

      requests for a preliminary injunction. The trial court ultimately determined that

      Clements, not Harris, was the owner of the mobile home. The trial court’s

      initial order, however, did not cite nor address the relevant factors for


      Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 5 of 11
      determining whether to grant a preliminary injunction. Nor did the trial court’s

      order contain specific findings of fact and conclusions of law as required by

      Indiana Trial Rule 52(A).5 As a result, our Court remanded this case to the trial

      court to issue a new order.


[7]   Thereafter, the trial court issued an order containing specific findings of fact

      and conclusions of law. The trial court again determined that Clements, not

      Harris, was the owner of the mobile home. The trial court also addressed the

      factors that Green Acres and Harris needed to show in order to obtain a

      preliminary injunction, and it granted Green Acres’ request for a preliminary

      injunction and denied Harris’ preliminary injunction request. Pasternac and

      Rainbow Community now appeal the trial court’s grant of Green Acres’ request




      5
          The trial court’s initial order provided as follows:
               Notwithstanding the fact that the Plaintiff, Robert A. Harris, created the situation wherein his
               interest in the mobile home had been effectively transferred to Ms. Sandy Clements, [Pasternac],
               though not guilty of any fraud or actual misrepresentation, cannot be deemed to be a bona fide
               purchaser in good faith.
               If anything, [Pasternac’s] knowledge of the “Right of First Refusal” provision of the Site Rental
               Agreement as well as prior dealings with agents of [Green Acres] would have been sufficient to
               place [Pasternac] on notice that, in addition to buying a mobile home, he was running the risk
               of “buying a lawsuit[,”] which he could have avoided by the placement of a telephone call to the
               offices of the Plaintiff, Green Acres.
               THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that [Pasternac] shall cause
               the title to the mobile home, . . . to be restored to Ms. Sandy Clements within 10 days of its
               receipt of the $1,000.00 downpayment made to said owner; whereupon Green Acres may
               exercise its Right of First Refusal.
               Any determination of damages is hereby reserved for a future hearing to be scheduled at the
               request of the parties.
               Plaintiff’s [sic] request for assessment of attorney fees is DENIED.
      (App. Vol. 2 at 24-25).



      Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019                  Page 6 of 11
       for a preliminary injunction, and Harris cross-appeals the trial court’s denial of

       his preliminary injunction request.


                                                   Decision
[8]    We first address Pasternac and Rainbow Community’s argument on appeal that

       the trial court abused its discretion by granting Green Acres’ request for a

       preliminary injunction.


[9]    “The power to issue a preliminary injunction should be used sparingly, with

       such relief granted only in rare instances in which the law and facts are clearly

       within the movant’s favor.” City of Charlestown v. Charlestown Pleasant Ridge

       Neighborhood Ass’n Corp., 111 N.E.3d 199, 204 (Ind. Ct. App. 2018). We review

       a trial court’s grant or denial of a preliminary injunction for an abuse of

       discretion. Leone v. Comm’r, Ind. Bureau of Motor Vehicles, 933 N.E.2d 1244,

       1248 (Ind. 2010). To obtain a preliminary injunction, the moving party must

       demonstrate by a preponderance of the evidence: (1) a reasonable likelihood of

       success at trial; (2) the remedies at law are inadequate, thus causing irreparable

       harm pending resolution of the substantive action; (3) the threatened injury to

       the movant outweighs the potential harm to the nonmovant from the granting

       of an injunction; and (4) the public interest would not be disserved by granting

       the requested injunction. Id. If the movant fails to prove any one of these

       factors, the trial court is required to deny the injunction. Id.


[10]   When determining whether to grant or deny a preliminary injunction, the trial

       court is required to issue special findings of fact and conclusions thereon. City

       Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 7 of 11
       of Charlestown, 111 N.E.3d at 204; Ind. Trial Rule 52(A). We review the special

       findings and conclusions for clear error. Ind. Trial Rule 52(A). In doing so, we

       must determine whether the evidence supports the trial court’s findings and

       whether the findings support the judgment. Clark’s Sales & Serv., Inc. v. Smith, 4

       N.E.3d 772, 780 (Ind. Ct. App. 2014), trans. denied. “We will reverse the trial

       court’s judgment only when it is clearly erroneous, that is, when our review of

       the record leaves us with a firm conviction that a mistake has been made.”

       Great Lakes Anesthesia, P.C. v. O’Bryan, 99 N.E.3d 260, 268 (Ind. Ct. App. 2018).

       When assessing whether the judgement is clearly erroneous, we will not

       reweigh the evidence or judge witness credibility. City of Charlestown, 111

       N.E.3d at 204. Rather, we will consider only the evidence favorable to the

       judgment and the reasonable inferences to be drawn therefrom. Id.


[11]   Pasternac and Rainbow Community argue that the trial court abused its

       discretion by granting Green Acres’ preliminary injunction request.

       Specifically, they argue that Green Acres failed to prove that it met the

       necessary factors that would entitle it to the extraordinary relief of a preliminary

       injunction.


[12]   In regard to Green Acres’ burden of showing the “reasonable likelihood of

       success at trial” factor, the trial court concluded as follows:


               Notwithstanding Harris’ inability to prevail at trial, Green Acres
               has proven that it can make its prima facie case against Pasternac
               and Rainbow Community (and Clements) on it[s] breach of
               contract case based upon the right of first refusal clause. Though
               Pasternac was never a party to that agreement, Pasternac was

       Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 8 of 11
                aware of the Right of First Refusal Clause and chose to avoid
                insisting upon compliance by Clements; thereby taking the risk
                that Green Acres would seek to invalidate the sale and enforce its
                Right of First refusal. Though Green Acres may have [a] claim
                against Clements, it also has a viable interference claim against
                Pasternac and Rainbow Community. Therefore, Green Acres
                has met its burden of proving that it would be successful at trial.

       (Trial Court’s Order from Remand at 9).6


[13]   Here, the trial court concluded that Green Acres had shown that it would have

       a reasonable likelihood of success at trial against Pasternac and Rainbow

       Community for the claims of breach of contract and tortious interference with a

       contract. Green Acres, however, did not raise either of these claims against

       Pasternac and Rainbow Community in its underlying complaint in this case.

       Thus, the trial court essentially concluded that Green Acres had a likelihood of

       success at trial on potential or future claims. It is axiomatic that a party cannot

       show a reasonable likelihood of success on a claim that was not raised before

       the trial court.7 The trial court’s conclusion that Green Acres had shown a

       reasonable likelihood of success at trial is clearly erroneous. Accordingly, we

       reverse the trial court’s grant of the preliminary injunction to Green Acres. See




       6
         The parties did not file an amended appendix to include the trial court’s order that was issued following
       remand.
       7
         Even if Green Acres had raised a breach of contract claim against Pasternac and Rainbow Community in
       its complaint, Green Acres would not have a reasonable likelihood of success at trial because Pasternac and
       Rainbow Community were not parties to the rental agreement between Clements and Green Acres. See
       Young v. Tri-Etch, Inc., 790 N.E.2d 456, 459 (Ind. 2003) (holding that a contract did not impose any
       obligations or limitations on a person who was not a party to the contract), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019                 Page 9 of 11
       Leone, 933 N.E.2d at 1248 (holding that failure to prove any one of the

       preliminary injunction factors requires the trial court to deny a preliminary

       injunction request); Stoffel v. Daniels, 908 N.E.2d 1260, 1272 (Ind. Ct. App.

       2009) (concluding that the dismissal of a plaintiff’s underlying claim

       “preempt[ed] the entry of injunctive relief” because the plaintiff did not show a

       reasonable likelihood of success at trial).


[14]   We now turn to Harris’ cross-appeal issue. Harris contends that the trial court

       abused its discretion by denying his request for a preliminary injunction.

       Because Harris bore the burden of proof when seeking a preliminary injunction,

       he now appeals from a negative judgment. Accordingly, he “‘must demonstrate

       that the trial court’s judgment is contrary to law; that is, the evidence of record

       and the reasonable inferences therefrom are without conflict and lead

       unerringly to a conclusion opposite that reached by the trial court.’” Great Lakes

       Anesthesia, 99 N.E.3d at 268 (quoting PrimeCare Home Health v. Angels of Mercy

       Home Health Care, LLC, 824 N.E.2d 376, 380 (Ind. Ct. App. 2005)).


[15]   During the preliminary injunction hearing, the parties agreed that the trial court

       should determine the underlying ownership issue at the same time that it

       considered Harris’ and Green Acres’ requests for a preliminary injunction. The

       trial court ultimately determined that the evidence presented during the hearing

       showed that Harris had “effectively transferred” his “interest” and “ownership”

       of the mobile home to Clements and that he had made an inter vivos gift. (Trial

       Court’s Order from Remand at 8, 9). As a result, the trial court concluded that



       Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 10 of 11
       Harris could not meet his burden of showing he was entitled to a preliminary

       injunction.


[16]   Here, Harris challenges the trial court’s determination, made as finder of fact,

       that he was no longer the owner of the mobile home. Harris contends that his

       testimony showed that he had no intent to make an inter vivos gift of the mobile

       home to Clements. Harris’ argument is essentially a request to reweigh the

       evidence and the trial court’s determination of witness credibility, which we

       will not do. See City of Charlestown, 111 N.E.3d at 204. Because the evidence

       favorable to the judgment and the reasonable inferences to be drawn therefrom

       support the trial court’s ownership determination, Harris cannot show that the

       trial court abused its discretion by denying his preliminary injunction request.

       Thus, we affirm the trial court’s denial of Harris’ request for a preliminary

       injunction.


[17]   Reversed in part and Affirmed in part.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1704-MI-816 | May 15, 2019   Page 11 of 11
