SPERRO LLC d/b/a Sperro Towing and Recovery, Fenner & Associates LLC, Brian Fenner, and AMI Asset Management, Inc., Appellants-Defendants, and Indiana Bureau of Motor Vehicles, Declaratory Defendant, v. FORD MOTOR CREDIT COMPANY LLC, Appellee-Plaintiff.
No. 49A02-1601-PL-187
Court of Appeals of Indiana
Nov. 17, 2016
64 N.E.3d 235
CRONE, Judge.
[12] Our Supreme Court has noted that “[t]he legislature has provided an extended statute of limitations for certain sex offenses in
[13] Essentially, Pavan asks us to transform a tolling provision located within the statute of limitations into an additional element the State must prove to secure a conviction for incest---that the victim or, as in this case, other willing participant, is under thirty-one years old. To accept Pavan‘s request would be to embrace an absurd and illogical interpretation of both the statute of limitations and the incest statute. See In re J.S., 48 N.E.3d 356, 359-60 (Ind.Ct.App.2015) (explaining that “[w]e presume that the General Assembly intended that the language used in [a] statute be applied logically and not to bring about an unjust or absurd result” (quoting Alvey v. State, 10 N.E.3d 1031, 1033 (Ind.Ct.App.2014), aff‘d of reh‘g, 15 N.E.3d 72 (Ind.App.2014)), trans. denied.) If the legislature had wished to place such limitations on the reach of the incest statute, it would have done so explicitly and in the statute defining the offense, not impliedly and by way of the statute of limitations.
[14] In sum, Pavan‘s statute-of-limitations argument is without merit, and trial counsel cannot be deemed ineffective for failing to pursue a meritless defense. Accordingly, the post-conviction court properly denied Pavan‘s PCR petition.
[15] Judgment affirmed.
[16] BRADFORD, J. and PYLE, J., concur.
Harley K. Means, John J. Petr, Steven E. Runyan, Kroger, Gardis & Regas, LLP Indianapolis, IN, Attorneys for Appellee.
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
[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
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.
[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 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
[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, 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
[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,
[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 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
[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:
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 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. ....
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.
....
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 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
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);
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,
[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
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 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). “A possessory lien on a motor vehicle is 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
(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 auction on a specified date to satisfy the mechanic‘s lien imposed by this section.
(Emphases added.)6
[22] Here, the trial court concluded that Sperro failed to satisfy the statutory requirements by advertising the sales of the Group 1 Vehicles within thirty days after the date they came into Sperro‘s possession. The trial court concluded that
[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 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
[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
[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
[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 P.O. Box is merely a mailing address and not a place of business. Cf.
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
(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).
[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 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
[31] Affirmed.
KIRSCH, and MAY, JJ., concur.