FILED
Mar 22 2019, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Brad A. Council Christopher J. McElwee
Slovin & Associates Co., LPA Monday McElwee Albright
Cincinnati, Ohio Indianapolis, Indiana
Michael J. Feiwell
Bryan K. Redmond
Feiwell & Hannoy, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Collins Asset Group, LLC, March 22, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CC-1160
v. Appeal from the Hamilton
Superior Court
Alkhemer Alialy, The Honorable Steven R. Nation,
Appellee-Defendant. Judge
The Honorable Darren J. Murphy,
Magistrate
Trial Court Cause No.
29D01-1704-CC-3957
Riley, Judge.
OPINION ON REHEARING
Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019 Page 1 of 3
[1] Appellant-Plaintiff, Collins Asset Group, LLC (CAG), filed a petition for
rehearing, requesting us to reconsider our memorandum decision issued on
December 6, 2018. In our decision, we affirmed the trial court’s dismissal,
finding that CAG’s action was barred by the six-year statute of limitation
pursuant to Ind. Code § 34-11-2-9. We grant CAG’s petition for the limited
purpose of clarifying footnote 1 in our decision.
[2] CAG requests this court to reconsider the part of its argument that we waived
in footnote 1, in which we noted that:
In an effort to circumvent the application of I.C. § 34-11-2-9,
CAG asserts that I.C. § 26-1-3.1-118 governs the case at bar.
However, as CAG failed to raise this issue before the trial court,
it waived the argument for our review. See VanWinkle v. Nash,
761 N.E.2d 856, 859 (Ind. Ct. App. 2002) (Failure to raise an
issue before the trial court will result in waiver of that issue).
In its petition for rehearing, CAG references case law noting that even though
the argument was not brought before the trial court, “[t]he crucial factor . . . in
determining whether [the plaintiff] may interject what appears to be a new issue
into the appeal is whether [the defendant] had unequivocal notice of the
existence of the issue and, therefore, had an opportunity to defend against it.”
See CAG Pet. Reh’g p. 8 (quoting Mory v. Ransone, 4 N.E.3d 1133, 1136 (Ind.
2014).
Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019 Page 2 of 3
[3] However, at the time we issued our opinion, a review of the record revealed
that CAG’s counsel had asserted in his memorandum in opposition to Alialy’s
motion to dismiss that “the statute of limitations to collect the entire debt does
not begin to run immediately upon the debtor’s default, but when the creditor
exercises the optional acceleration clause.” (Appellant’s App. Vol. II, p. 21).
CAG’s counsel never specifically mentioned I.C. § 26-1-3.1-118, and only
partially paraphrased it in his memorandum. He never raised the argument
during the hearing.
[4] These casual references to a partial argument without specific attribution to the
statute cannot be considered sufficient notice of the issue such that it warranted
this court’s analysis.
[5] Our opinion is hereby affirmed in all other respects.
[6] Vaidik, C. J. and Kirsch, J. concur
Court of Appeals of Indiana | Opinion on Rehearing 18A-CC-1160 | March 22, 2019 Page 3 of 3