Towne & Terrace Corporation; Glen Timmons, in his capacity as President of the Towne & Terrace Corporation Board of Directors; Darren Kirkland, in his Capacity as a Member of the Towne & Terrace Corporation Board of Directors; Jacqueline Timmons, in her Capacity as a Member of the Towne & Terrace Corporation Board of Directors; and Ella Means, in her Capacity as a Member of the Towne & Terrace Corporation Board of Directors, Appellants-Defendants and Counter-Claimants,
City of Indianapolis, Appellee-Plaintiff and Counter-Defendant.
from the Marion Superior Court The Honorable Cynthia J.
Ayers, Judge Trial Court Cause No. 49D04-1311-OV-42187
ATTORNEYS FOR APPELLANTS Clifford R. Courtney Indianapolis,
Indiana Frederic C. Sipe Indianapolis, Indiana Robert A.
Smith SmithWade, LLC Noblesville, Indiana
ATTORNEYS APPELLEE James J. Ammeen, Jr. Mark J. Liechty
Ammeen Valenzuela Associates, LLP Indianapolis, Indiana
Deborah L. Law Donald E. Morgan Office of Corporation Counsel
of the Case
Towne & Terrace Corporation; Glen Timmons, in his
capacity as President of the Towne & Terrace Corporation
Board of Directors; Darren Kirkland, in his Capacity as a
Member of the Towne & Terrace Corporation Board of
Directors; Jacqueline Timmons, in her Capacity as a Member of
the Towne & Terrace Corporation Board of Directors; and
Ella Means, in her Capacity as a Member of the Towne &
Terrace Corporation Board of Directors (collectively
"T&T"), appeal the trial court's order granting
an unverified motion filed by the City of Indianapolis
("the City") for the appointment of a receiver over
T&T. T&T presents several issues for our review,
which we consolidate and restate as whether the trial court
abused its discretion when it appointed a receiver to
"have control over all of [T&T]'s assets, both
real property and the common areas, real property owned by
individual board members, and if found to be unsafe, all
other privately-owned properties." Appellants' App.
Vol. III at 13.
The City cross-appeals and contends that the trial court
abused its discretion when it granted T&T's verified
motion to appoint a receiver over the City-owned properties
located in the Towne & Terrace complex.
We affirm in part and reverse in part.
and Procedural History
We set out some of the relevant facts and procedural history
in a prior appeal:
Towne & Terrace is a residential complex near the
intersection of East 42nd Street and Post Road in
Indianapolis, Indiana. Incorporated in 1964 for the purpose
of owning and maintaining the common areas of the condominium
development, [T&T] is a private, nonprofit Indiana
corporation with volunteer directors. . . . As of 2017, the
City owned at least 49 units in Towne & Terrace. Thirteen of
the units were acquired as part of a settlement in an
unrelated nuisance action. The remainder of the units became
the City's possession after they were not purchased at
tax sales. Since being acquired, each of the City's
homes in Towne & Terrace has been left vacant and boarded
Over the years, the East side of Marion County has suffered a
major crime wave. In 2015, the Federal Bureau of
Investigation, the United States Attorney's Office, the
Indiana State Police, the Marion County Sheriff, and [the]
Indianapolis Metropolitan Police Department conducted raids
throughout Indianapolis, leading to the arrest of thirty-five
criminals-the vast majority on the East side.
On December 16, 2014, the City filed an Amended Complaint
against [T&T] and four members of its board in their
representative capacities, alleging that [T&T]
"failed to provide, maintain, and ensure that all common
areas of the  residential complex are safe from hazardous
conditions, including but not limited to general lawlessness
and the threat of reasonably foreseeable criminal
intrusions." Specifically, the City noted that
"[s]ince January 1, 2008, there have been at least
excessive [sic] police runs and numerous reports filed by the
Indianapolis Metropolitan Police Department at the 
residential complex involving crimes such as homicide, rape,
fraud, arson, domestic battery, public intoxication, child
abduction, child abuse, larceny, burglary, armed robbery,
aggravated assault, vandalism, intimidation, invasion of
privacy, and trespass." As such, the City requested the
trial court, among other things, to
[a]ward the City compensatory damages against [T&T],
jointly and severally, to compensate the City for all damages
caused by [T&T's] operation, management and
maintenance of the [Towne & Terrace] residential complex
and individual units, including but not limited to:
i. All resources expended by the City, including but not
limited to the Department of Public Safety[ and] IMPD . . .
in response to the unreasonable volume of investigations,
reports, and citations caused by [T&T's] neglect of
the  residential complex and individual units, and
ii. Any and all other public resource expenditures resulting
from [T&T's] neglect of the  residential complex.
On January 30, 2015, [T&T] filed an Answer and
Counterclaim, denying the allegations in the Amended
Complaint and asserting that the City owed [T&T]
maintenance fees on the individual units owned by the City.
On October 3, 2016, [T&T] moved for summary judgment on
its counterclaim against the City.
Prior to the trial court issuing a ruling, [T&T] filed a
second motion for summary judgment on the City's Amended
Complaint[, and] the City responded on July 17, 2017. After a
hearing on [T&T]'s second motion for summary
judgment, the trial court issued its ruling on October 18,
2017, granting summary judgment to [T&T] on the
City's Amended Complaint and partial summary judgment on
City of Indianapolis v. Towne & Terrace Corp.,
106 N.E.3d 507, 509-10 (Ind.Ct.App. 2018) (citations omitted;
emphasis added) ("Towne & Terrace I").
On appeal, we affirmed the trial court's grant of summary
judgment in favor of T&T on the City's amended
complaint, and we affirmed the court's partial summary
judgment in favor of T&T on T&T's counterclaim
for the payment of maintenance charges assessed against the
City. Id. at 513, 515.
While the summary judgment motions were pending in the trial
court, on September 11, 2017, the City filed a motion for the
appointment of a receiver over T&T. In that motion, the
City alleged that one of T&T's board members, Walter
Timmons, had died the week before, on September 7. And the
City stated further as follows:
4. Mr. Timmons and his wife, Jacqueline Timmons, have been
the only Directors serving on T&T's Board, and they
have served as the only officers for years. Mr. and Mrs.
Timmons also are defendants in this civil action with respect
to City's claims of breach of fiduciary duty.
5. Under the circumstances, it is impossible for T&T to
proceed in this civil action without a functioning Board of
Directors and an Officer appointed to appear and act for the
corporation. T&T also is in peril of not being able to
discharge its obligations to its constituents and the
residents living at T&T as a direct and proximate result
of Mr. Timmons' untimely death.
6. Should the City prevail on its nuisance claims,
likely will render T&T insolvent or in imminent danger of
insolvency such that it will be unable to pay debts as they
become due in the ordinary course of business.
7. A meeting of members must be called, notice given,
nominations obtained, and an election held to appoint new
directors and officers to succeed Mr. Timmons and fill
vacancies on the Board. Without a functioning Board of
Directors or Officers to direct them, T&T's attorneys
are incapable of re[pre]senting the corporation effectively.
8. The immediate appointment of a receiver over T&T is
necessary in order to protect City's rights, but not only
to protect the City's rights. Most important, appointment
of a receiver is necessary to protect the rights of all
property owners and to assure the people living at T&T
that basic services will be performed. It is necessary to
preserve the corporation from failure caused by sudden,
unexpected, and un-prepared circumstances that have befallen
T&T and the Timmons family.
App. Vol. II at 36.
On September 26, T&T filed a response stating in relevant
part that, following Walter Timmons' death, "the
remaining [T&T] board member[s] promptly proceeded to
elect two (2) new directors, bringing the total board to
three (3) members as required by its By Laws."
Id. at 41. And on November 20, after the trial
court's entry of summary judgment but prior to our
opinion on appeal, T&T filed a verified petition for
appointment of a receiver alleging that the City had not paid
"maintenance fees, assessments, late charges, interest
and attorney fees" owed to T&T. Id. at 64.
The verified petition alleged further:
14. That [T&T] is a judgment lien creditor of [the City].
15. That [I.C. §] 32-30-5-1, et seq. provides for the
appointment of a Receiver in an action by a creditor to
subject any property or fund to the creditor's claim.
16. That [T&T] is a creditor of [the City] within the
meaning of [I.C. §] 32-30-5-1, et seq., and seeks to
subject [the City]'s properties within Towne &
Terrace to said lien to recover the amounts due it from the
17. That [I.C. §] 32-30-5-1 provides for the appointment
of a receiver in actions between persons jointly interested
in any property or fund.
18. That [the City] as an owner and [T&T] as a lienholder
are jointly interested in the properties within Towne &
Terrace owned by [the City] that are subject to the lien of
19. Said judgment further holds that the Towne & Terrace
properties owned by [the City] are in a state of neglect and
deterioration, and said properties have been deteriorating
and continue to deteriorate and to be neglected by [the
20. That [I.C. §] 32-30-5-1 provides for the appointment
of a receiver in actions when it is shown that the property,
fund, rent and profits in controversy are in danger of being
lost, removed or materially injured.
21. That properties within Towne & Terrace owned by [the
City] that are subject to the lien of [T&T] are in danger
of being lost, removed or materially injured due to the