Indianapolis Car Exchange, Inc. v. Randall Alderson, and ...

FOR PUBLICATION

ATTORNEY FOR APPELLANT: J. KENT MINNETTE Kirtley Taylor Sims Chadd & Minnette, P.C. Crawfordsville, Indiana

FILED

Aug 05 2009, 8:58 am

CLERK

of the supreme court, court of appeals and

tax court

ATTORNEY FOR APPELLEES:

MICHAEL P. SHANAHAN Stewart & Irwin, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

INDIANAPOLIS CAR EXCHANGE, INC. Appellant-Defendant, vs.

RANDALL ALDERSON, and CHRISTINA ALDERSON,

Appellees-Plaintiffs, INDIANAPOLIS CAR EXCHANGE, INC.

Counterclaim Plaintiff, vs.

RANDALL ALDERSON and CHRISTINA ALDERSON,

Counterclaim Defendants,

) ) ) ) ) No. 80A02-0902-CV-116 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

INDIANAPOLIS CAR EXCHANGE, INC.

)

)

Third-Party Plaintiff,

)

)

vs.

)

)

MICHAEL J. THURMAN, individually and

)

d/b/a Top Quality Auto Sales, and MICHAEL L. )

THURMAN, individually and d/b/a Top Quality )

Auto Sales,

)

)

Third-Party Defendants.

)

APPEAL FROM THE TIPTON CIRCUIT COURT The Honorable Thomas R. Lett, Judge Cause No. 80C01-0710-CC-400

BARNES, Judge

August 5, 2009 OPINION - FOR PUBLICATION

Case Summary Indianapolis Car Exchange ("ICE") appeals the trial court's grant of summary judgment in favor of Randall and Christina Alderson. We affirm.

Issue ICE raises four issues, which we consolidate and restate as whether the trial court properly entered summary judgment on the issue of title in favor of the Aldersons and ordered the BMV to release a lien held by ICE.

2

Facts Mike Thurman operated Top Quality Auto Sales ("Top Quality"), a used car dealership. Top Quality financed the majority of its inventory through a financing agreement with ICE, an auto auction house. Pursuant to ICE's agreement with Thurman, ICE filed a financing statement with the Indiana Secretary of State. Although Top Quality had cash flow problems and ICE's insurance company would not cover transactions between ICE and Top Quality, ICE continued its financing arrangement with Top Quality. On March 9, 2007, Top Quality purchased a 2004 Ford truck using its financing arrangement with ICE. On March 21, 2007, immediately following an auction at another auction house, Thurman sold the truck to Lightly Used Trucks ("Lightly"), another used car dealership operated by Bonnie Chrisman. Chrisman had arranged with Randall to purchase the truck for him. At some point, Chrisman mentioned to Randall that Thurman told her "he was running on Danny Hockett money[,]" implying that Thurman "operate[s] financially somehow through Danny Hockett." App. pp. 89, 124. Danny Hockett is the proprietor of ICE. Chrisman wrote a check to Thurman for the truck that day. Thurman did not inform ICE of the sale or repay ICE for the truck. On March 23, 2007, the Aldersons paid Chrisman for the truck. Chrisman tried to retrieve the title for the Aldersons and discovered that Thurman had not paid ICE for the truck. On March 28, 2007, ICE requested that the BMV place a lien in its favor on the title of the truck. ICE refused to release the lien on the truck, and the Aldersons refused to return the truck to ICE.

3

On October 25, 2007, the Aldersons filed a complaint against ICE.1 On December 19, 2007, ICE filed its answer, affirmative defense, counterclaim, and third-party complaint against Thurman and Top Quality. ICE claimed that Thurman breached his contract with ICE, that Thurman and the Aldersons committed conversion and theft, that Thurman committed fraud, and that it was entitled to replevin. On January 1, 2008, Thurman answered the third-party complaint. On February 4, 2008, the Aldersons answered the counterclaim.

On March 28, 2008, the Aldersons filed a motion for summary judgment on the issue of title. On October 20, 2008, ICE filed a partial motion for summary judgment regarding its replevin action against the Aldersons and responded to the Aldersons' motion for summary judgment. Both parties filed reply briefs regarding their respective motions for summary judgment. On December 30, 2008, after a hearing, the trial court granted the Aldersons' motion for summary judgment as to the issue of title and denied ICE's motion for partial summary judgment. ICE now appeals.

Analysis ICE argues that the trial court improperly granted summary judgment for the Aldersons on the issue of title. When reviewing the grant or denial of summary judgment, we use the same standard of review as the trial court. Naugle v. Beech Grove City Schs., 864 N.E.2d 1058, 1062 (Ind. 2007). "Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving

1 ICE did not include a copy of the complaint in the Appendix, but it is clear that the parties dispute the issue of title.

4

party is entitled to judgment as a matter of law." Id. (citing Ind. Trial Rule 56(C)). "All

facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party." Id. Our review is limited to those materials designated in the trial court

under Indiana Trial Rule 56(C). Id. We will affirm summary judgment if it may be

sustained on any theory or basis found in the record. Yates v. Johnson County Bd. of Comm'rs, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008).

We begin our analysis with Indiana Code Section 26-1-9.1-320(a), which provides in part: "Except as otherwise provided in this subsection and subsection (e), a buyer in ordinary course of business takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence."2 Indiana Code Section 26-1-1-201(9) defines "buyer in ordinary course of business" as:

a person that buys goods in good faith without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course of business if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices. . . .

To the extent ICE argues that there are genuine issues of material fact regarding

whether Chrisman and the Aldersons were buyers in the ordinary course of business because they knew of ICE's interest in the truck, this argument misses the mark.

Comment 3 to Indiana Section 26-1-9.1-320 explains:

2 Because of our disposition today, it is unnecessary to determine whether ICE's lien was perfected. We assume for the sake of argument that it was.

5

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download