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COA affirms ruling for lender in Shelbyville low-income housing dispute

December 21, 2016

A general partner developing Shelbyville low-income apartments lost its appeal of rulings that it misappropriated or was in breach of nearly $2.75 million guaranteed for the project and that it should be liable for the lenders’ legal fees of more than $385,000.

Richard Deckard Jr., Marilyn Deckard and Deckard Realty & Development Co. were parties involved with Shelby’s Landing-II Inc., which was general partner in a plan to profit from a tax-credit system designed to encourage private investment in low-income housing developments. Richard Deckard was president of Shelby’s Landing and Deckard Realty.

PNC Multifamily Institutional Fund XXVI Limited Partnership and other parties were limited partners who extended credit to Shelby’s Landing for the project that began in 2005. Over the years, delays led to PNC removing Shelby’s Landing as general partner, after PNC claimed breach of contract in 2011.

A special judge in Shelby Superior Court ruled in favor of PNC, awarding $1,140,428.87 plus interest for breach of an adjuster note; $1,596,290.46 for breach of the partnership agreement; and legal fees of $385,125.26.

The Shelby Landing partners appealed, arguing that trial court conclusions and findings of misappropriation and theft were erroneous because the PNC parties did not raise such allegations.  The trial court found Shelby Landing had breached the agreement by impermissibly lending money to Deckard Realty and others, and commingling assets of the partnership with other parties, for instance.   

“We find that, regardless of the trial court’s misappropriation and theft findings and conclusions, there were adequate uncontested findings and conclusions to support the trial court’s judgment,” Judge Rudolph R. Pyle III wrote in Shelby's Landing-II, Inc., Richard Deckard, Jr., Marilyn Deckard, and Deckard Realty & Development Co. v. PNC Multifamily Capital Institutional Fund XXVI Limited Partnership, et al., 73A01-1509-CC-1403.

The panel also held the award of PNC’s attorney fees was not an abuse of discretion based on time and labor involved, the novelty and difficulty of the questions involved, and the amount in controversy.
 

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