Christopher J. McElwee and Monday McElwee Albright f/k/a Monday Jones Albright, Attorneys at Law v. Michael Fish ( 2020 )

FILED
OPINION ON REHEARING Jan 21 2020, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Alice M. Morical R. Brock Jordan
Michael A. Dorelli Christopher M. Trapp
Patrick A. Ziepolt Katz Korin Cunningham PC
Hoover Hull Turner LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher J. McElwee and January 21, 2020
Monday McElwee Albright Court of Appeals Case No.
f/k/a Monday Jones Albright, 18A-CT-2664
Attorneys at Law, Appeal from the Marion Superior
Appellants-Defendants, Court
The Honorable Gary L. Miller,
v. Judge
Trial Court Cause No.
Michael Fish, 49D03-1803-CT-8543
Appellee-Plaintiff
Sharpnack, Senior Judge.
[1] Michael Fish (“Fish”) has petitioned for rehearing, which we grant for the
limited purpose to address the argument of the petition. Fish contends that we
wrongly decided that the statute of limitations on his cause of action against
Christopher J. McElwee and Monday McElwee Albright f/k/a Monday Jones
Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 1 of 5
Albright, Attorneys at Law (collectively “McElwee”) began to run on February
29, 2016, the date he learned that McElwee had transferred to 2444
Acquisitions, LLC (“Acquisitions”) the surplus tax sale funds he had been
ordered by the bankruptcy court to hold pending court order. Fish contends
that the correct date for the beginning of the limitations period was May 9,
2016, the date the trial court in the foreclosure action ordered Acquisitions to
turn the surplus funds over to Fish.
[2] Fish argues, in effect, that until the foreclosure court ordered the turn over, he
had no cause of action against McElwee.
[3] We do not agree.
[4] In the bankruptcy court, Fish made claim against the county officials who held
the surplus tax sale funds and Acquisitions to have the surplus funds paid over
to Fish. The bankruptcy court order directed the county officials to deposit the
surplus funds with McElwee to hold pending further court order. The county
treasurer and auditor were thus relieved of any further responsibility for the
funds.
[5] Transfer of the surplus by McElwee to his firm and Acquisitions effectively
created two causes of action for Fish: one against Acquisitions for the surplus
funds now in its possession; and one against McElwee for unlawful transfer of
the funds to Acquisitions. Success in each had a common requirement that
Fish was entitled to the surplus funds.
Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 2 of 5
[6] Because the surplus tax sale funds were no longer held by the county treasurer
and auditor, the administrative procedure set out in Indiana Code section 6-1.1-
24-7 did not apply. As this court noted in affirming the trial court order against
Acquisitions to turn over to Fish the surplus tax sale funds, the administrative
process was not the only way to claim surplus tax sale funds and a claimant
could go directly to the trial court. 2444 Acquisitions, LLC v. Fish, 84 N.E.3d
1211, 1215 (Ind. Ct. App. 2017).
[7] Indiana Trial Rule 20(A)(2) permits joinder of defendants,
if there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect or, or arising out of, the
same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
defendants will arise in the action.
[8] Indiana Trial Rule 18(A) permits joinder of claims as follows:
A party asserting a claim for relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join, either
as independent or as alternate claims, as many claims, whether
legal, equitable, or statutory as he has against an opposing party.
[9] Acquisitions had the surplus tax sale funds claimed by Fish because McElwee
had transferred them to it. McElwee was no longer holding those surplus tax
sale funds because he had transferred them to Acquisitions.
[10] Under the rules, Fish could have made his claims against McElwee and
Acquisitions as a consequence of the transfer by McElwee and Fish’s claim to
the surplus tax sale funds in one action. There was nothing to prevent Fish
Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 3 of 5
filing an action against McElwee prior to an adjudication of his right to the
surplus tax sale funds. Judicial economy would be served by joining the claims
in one action.
[11] Fish’s cause of action against McElwee accrued on February 20, 2016. His
claim filed on March 1, 2018 is barred by the statute of limitations.
[12] With this additional discussion, we affirm our opinion of October 31, 2019. See
McElwee, et al. v. Fish, 134 N.E.3d 1057 (Ind. Ct. App. 2019). We remand to the
trial court to grant McElwee’s motion to dismiss.
Bradford, C.J., concurs.
Brown, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 4 of 5
FILED
OPINION ON REHEARING Jan 21 2020, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Alice M. Morical R. Brock Jordan
Michael A. Dorelli Christopher M. Trapp
Patrick A. Ziepolt Katz Korin Cunningham PC
Hoover Hull Turner LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher J. McElwee and January 21, 2020
Monday McElwee Albright Court of Appeals Case No.
f/k/a Monday Jones Albright, 18A-CT-2664
Attorneys at Law, Appeal from the Marion Superior
Appellants-Defendants, Court
The Honorable Gary L. Miller,
v. Judge
Trial Court Cause No.
Michael Fish, 49D03-1803-CT-8543
Appellee-Plaintiff
Brown, J., dissenting from grant of petition for rehearing. I would grant
rehearing for the purpose of affirming the trial court, in accordance with my
dissent expressed in the October 31, 2019 opinion in this case.
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