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Burelli v. Martin

Court of Appeals of Indiana

August 15, 2019

Gino Burelli, Appellant-Intervenor,
Larry Martin, Appellee-Plaintiff, and Kevin Mackay, Appellee-Intervenor.

          Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge, Trial Court Cause No. 64D02-1507-MI-6414

          Attorney for Appellant Russell T. Clarke, Jr. Emswiller, Williams, Noland & Clarke, LLC Indianapolis, Indiana

          Attorneys for Appellee Larry Martin Kathleen A. DeLaney Annavieve C. Conklin DeLaney & DeLaney LLC Indianapolis, Indiana

          Attorney for Appellee Kevin Mackay Ryan J. Schoffelmeer Crown Point, Indiana

          ROBB, JUDGE.

         Case Summary and Issues

         [¶1] Gino Burelli and Kevin Mackay are currently co-owners of a vintage Corvette worth several million dollars. Larry Martin is a judgment creditor seeking satisfaction of his judgment through the sale of the Corvette. A lengthy attempt to obtain satisfaction of the judgment ultimately resulted in the trial court appointing a receiver at Martin and Mackay's request. The receiver was ordered to take possession of the Corvette and sell it for the highest possible price. The receiver was not required to post a bond but was ordered to insure the Corvette. The trial court denied Burelli's subsequent motion to vacate the receivership order. Burelli appeals the trial court's order denying his motion to vacate and raises several issues for our review. Of those issues, we find the following dispositive: 1) whether the trial court erred in failing to vacate the receivership; and 2) whether the trial court erred by not requiring the receiver to post a bond. We conclude the trial court did not abuse its discretion in ordering and continuing the receivership. However, we also conclude the trial court erred in not requiring the receiver to post a bond as required by statute. Therefore, we affirm in part and reverse and remand in part.

         Facts and Procedural History

         [¶2] The following persons and entities are involved in this litigation:

• 1960 Briggs Cunningham Corvette #1 ("Corvette"), one of three identical cars that, in 1960, were the first Corvettes to compete in the 24 Hours of Le Mans race in France; after going missing for more than thirty years, the Corvette was found in 2012 and an ensuing ownership dispute resulted in a 2015 agreed order out of the United States District Court for the Middle District of Pennsylvania that Gino Burelli and Dominico Idoni together own seventy percent of the Corvette, with Kevin Mackay owning the remaining thirty percent ownership interest; purportedly worth millions of dollars
• Gino Burelli, part owner of the Corvette and owner of several businesses including Harbor Motor Company, Inc., doing business as Harbor Buick GMC, and Top Flight Corvettes, LLC; obtained the full seventy percent interest in the Corvette when Dominco Idoni signed over his interest to Burelli and Top Flight Corvettes, LLC, subject to a lien held by Larry Martin; possessor and insurer of the Corvette at most relevant times
• Dominico Idoni, part owner of the Corvette until he signed his interest over to Burelli and Top Flight Corvettes, LLC during this litigation; indebted to Larry Martin in the amount of $250, 600
• Kevin Mackay, Corvette restorer and thirty percent owner of the Corvette
• Larry Martin, obtained a judgment in Maryland for $250, 600 plus interest against Idoni in 2009; domesticated the judgment in the Porter Superior Court in July 2015 and obtained a lien against the Corvette to satisfy the debt
• Charles Goldsborough, a broker contracted by Burelli to market and sell the Corvette
• Harbor Motor Company, Inc., doing business as Harbor Buick GMC ("Harbor Buick GMC"), a car dealership owned by Burelli; located in Portage, Porter County, Indiana; the Corvette was stored in a trailer here at most relevant times
• Top Flight Corvettes, LLC ("Top Flight"), another business owned by Burelli; co-owner with Burelli of Idoni's interest in the Corvette
• NextGear Capital, Inc. ("NextGear"), which held certain loan documents executed by Harbor Buick GMC and Top Flight and personally guaranteed by Burelli; filed a complaint for replevin and damages in Hamilton Superior Court during the pendency of this litigation

         [¶3] The opening salvos in this litigation were described in Martin v. Burelli, 18A-MI- 25 (Ind.Ct.App. May 29, 2018):

[Gino] Burelli, Dominico Idoni, and Kevin MacKay [sic] are owners of a rare Briggs Cunningham Corvette that is valued at several million dollars. Burelli and Idoni each owned thirty-five percent of the vehicle, and MacKay [sic] owned the remaining thirty percent. The vehicle is currently located in Indiana.
In June 2009, Martin obtained a judgment in Maryland against Idoni for $250, 600 plus ten percent interest per annum. In July 2015, Martin filed a notice of filing a foreign judgment in Indiana and a praecipe for writ of attachment and order for execution of the judgment. Martin alleged that Idoni had a thirty-five percent ownership interest in the vehicle that was sufficient to satisfy the judgment. The trial court entered a writ of attachment and order for execution of the judgment and ordered the Porter County Sheriff's Department to seize the vehicle.
Burelli filed a motion to intervene in the action, which the trial court granted. Burelli also filed a motion to vacate the writ of attachment and order for execution of judgment. Burelli alleged that he held an insurance policy on the vehicle with Zurich Insurance and that a condition of the policy was that the vehicle remain in Burelli's care, custody, and control. Burelli requested that the vehicle be returned to his possession to avoid cancellation of the insurance policy. Burelli also argued that the vehicle should not be sold because Idoni owned only a minority interest in the vehicle. After a hearing, the trial court ordered that the vehicle be returned to Burelli's care "during the pendency of this action or until further order of the Court." The trial court also found that a lien existed on the vehicle in the amount of Martin's judgment. Finally, the trial court ordered Burelli to provide a report to Martin and the court on January 1, 2016, and quarterly after that date regarding "[g]ood faith efforts to restore, market and sell such vehicle and report of vehicle location." The trial court noted that Martin had the right to apply for further relief if the vehicle was not sold by August 2017. Burelli filed reports in January 2016, April 2016, July 2016, October 2016, January 2017, and May 2017.
On September 18, 2017, Martin filed a verified motion for proceedings supplemental. He alleged that, with interest, he was now owed almost $430, 000 and that Idoni had not satisfied the judgment. He also asserted that Burelli had filed late reports, failed to file a July 2017 report, failed to sell the vehicle, and failed to satisfy the lien. Burelli responded by filing a "Verified Motion for Temporary Restraining Order and Permanent Injunction." Burelli asserted in his motion that, in September 2017, Idoni conveyed his interest in the vehicle to Burelli [and Top Flight] to satisfy a debt of more than $1, 376, 699 and that Burelli now controlled seventy percent ownership of the vehicle. Martin then filed a petition for contempt and sanctions against Burelli.
At a hearing on the motions [in November 2017], Burelli testified that he had retained ...

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