Thomas N. Eckerle v. Katz & Korin, P.C., and Michael W. Hile (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 14 2017, 8:34 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Thomas N. Eckerle Douglas D. Church
Carmel, Indiana Alexander P. Pinegar
Kevin S. Smith
Church Church Hittle & Antrim
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas N. Eckerle, November 14, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1704-CT-735
v. Appeal from the Marion Superior
Court
Katz & Korin, P.C., and Michael The Honorable James B. Osborn,
W. Hile, Judge
Appellees-Defendants Trial Court Cause No.
49D14-1510-CT-35444
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 1 of 11
Case Summary
[1] Attorney Thomas N. Eckerle, pro se, appeals the trial court’s grant of summary
judgment in favor of Katz & Korin, P.C. (“Katz”), and attorney Michael W.
Hile (collectively “Appellees”) on Eckerle’s claim for abuse of process, as well
as the denial of his cross motion for summary judgment on that claim. Because
Eckerle was not a party to the process at issue, we affirm.
Facts and Procedural History1
[2] The essential facts are as follows. In 1995, Newland Resources, LLC, and The
Branham Corporation “entered into a contract whereby Branham agreed to
assist Newland with negotiating contracts and obtaining certifications needed to
operate a waste water and water supply utility[,]” Boone County Utilities, LLC
(“BCU”), which was wholly owned by Newland. Appellant’s App. Vol. 3 at
146. “In return, Newland agreed to pay Branham a ‘success fee’ based upon
the sale price ultimately paid for the utility.” Id.
1
Indiana Appellate Rule 46(A)(5) provides that an appellant’s statement of the case “shall briefly describe the
nature of the case, the course of the proceedings relevant to the issues presented for review, and the
disposition of these issues by the trial court ….” (Emphasis added.) Eckerle’s statement of the case is ten
pages long, presumes familiarity with past and present litigation, and is inappropriately argumentative.
Appellate Rule 46(A)(6) provides that an appellant’s statement of facts “shall describe the facts relevant to the
issues presented for review” “shall be stated in accordance with the standard of review appropriate to the
judgment or order being appealed[,]” and “shall be in narrative form ….” Instead of presenting a coherent
narrative of relevant facts, Eckerle quotes extensively from bankruptcy court orders and attempts to
incorporate facts by reference to other documents, which he may not do. Cf. Oxley v. Lenn, 819 N.E.2d 851,
855 n.2 (Ind. Ct. App. 2004) (rejecting appellee’s attempt to incorporate argument by reference to summary
judgment brief filed with trial court). The statement of facts is also inappropriately argumentative. Eckerle’s
failures to comply with the appellate rules and his discursive writing style have made it difficult for us to
decipher his arguments. Appellants’ objections to Eckerle’s statement of the case and statement of facts are
well taken, and we appreciate their efforts to clarify the relevant factual and procedural history.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 2 of 11
[3] BCU was investigated by the Indiana Utility Regulatory Commission
(“IURC”). In March 2003, the IURC ordered BCU to cease all payments to
Newland. Later that year, BCU filed for Chapter 11 bankruptcy. In February
2004, the IURC issued an order staying all proceedings and recognizing the
bankruptcy court’s “full power and exclusive jurisdiction” to sell BCU’s assets.
Appellant’s App. Vol. 6 at 156. The bankruptcy court directed the sale of
BCU’s assets and confirmed BCU’s liquidation plan, which called for the
distribution of approximately $3,000,000 to Newland per its allowed equity
interest. Those proceeds were distributed to Newland’s shareholders and
members, leaving Newland and BCU with joint assets of less than $10,000.
Pursuant to a bankruptcy court order, Eckerle was authorized to represent
Newland during the bankruptcy proceeding and receive compensation for his
services. Newland did not pay Branham its success fee.
[4] In 2005, based on the theory that BCU’s confirmed liquidation plan did not
preempt enforcement of the IURC’s March 2003 order, Branham sued
Newland and other defendants (including BCU as a garnishee defendant) in
Boone Circuit Court, alleging conversion, conspiracy, and breach of contract
(“Cause 517”). The conversion and conspiracy claims were dismissed. After a
jury trial on its contract claims, Branham obtained a judgment against Newland
for almost $400,000, which was affirmed on appeal. Newland Res., LLC v.
Branham Corp., 918 N.E.2d 763 (Ind. Ct. App. 2009).
[5] In 2011, Branham, represented by Stewart & Irwin (“S&I”), sued Newland and
other defendants, including Eckerle, in Boone Circuit Court, alleging criminal
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 3 of 11
offenses and seeking treble damages related to the distribution of BCU-related
funds in the bankruptcy proceeding (“Cause 001”). Branham also sought to
collect from the defendants in Cause 517 via a proceedings supplemental and
named Eckerle as a garnishee defendant. Beginning in June 2013, Katz
represented Branham in both proceedings. Ultimately, Eckerle was dismissed
from Cause 517, Branham Corp. v. Newland Res., LLC, 44 N.E.3d 1263, 1273
(Ind. Ct. App. 2015), and was granted summary judgment in Cause 001.
Branham Corp. v. Newland Res., LLC, 17 N.E.3d 979, 994 (Ind. Ct. App. 2014).
[6] In April 2012, BCU reopened its bankruptcy proceeding and filed a complaint
against Branham and S&I, asking the bankruptcy court to declare that all
distributions made under the confirmed plan were legal and to impose sanctions
against Branham and S&I for suing BCU in state court (“AP-128”). In May
2012, Hile (a Katz attorney) entered an appearance for S&I and filed a motion
to dismiss S&I from AP-128. In October 2012, the bankruptcy court granted
the motion and also ruled that any issues involving Newland’s “actions upon or
after receipt of the distribution” from BCU were to be decided in Boone Circuit
Court. Appellant’s App. Vol. 3 at 217.
[7] In August 2013, BCU filed an amended complaint. On October 7, 2013,
Branham filed a counterclaim against BCU, seeking to garnish BCU’s assets to
satisfy Branham’s judgment against Newland in Cause 517. On October 21,
2013, Eckerle filed a motion to intervene as a plaintiff against Branham.
Eckerle alleged that, at an August 2012 hearing, Hile stated that Newland
engaged in “monkeyshines” during BCU’s original bankruptcy proceeding and
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 4 of 11
that Newland’s “professionals” (which included Eckerle) were retained to assist
Newland in “its fraudulent transfer of assets.” Appellant’s App. Vol. 5 at 101.
Eckerle further alleged that his intervention would allow Branham and
Appellees “to prove their fiendish allegations against [him] and to explain why
these allegations do not contradict” the bankruptcy court order authorizing
Eckerle to perform legal services for Newland and receive compensation for
them. Id. at 102. Eckerle posited, “If Branham … gets its way, it will have
been allowed to simply walk away from heinous charges of criminal conduct
against … me, without ever having had to introduce an iota of evidence in
support of those charges and without allowing … me the opportunity to defend
[myself] against Branham’s defamatory and outrageous accusations on the
merits.” Id. at 103.
[8] On December 23, 2013, Appellees entered an appearance for Branham in AP-
128 and filed a response to Eckerle’s motion to intervene, asserting that any
claims that Branham might have against Eckerle were “time barred” and
“dead.” Id. at 153. The bankruptcy court denied Eckerle’s motion to intervene
but allowed him to file an amicus brief in which he voiced his suspicions that
Branham and its attorneys wanted to keep him out of the case, obtain BCU’s
and Newland’s claims against third parties, and then assert those claims against
him in another forum. In May 2015, the bankruptcy court entered summary
judgment for BCU. In August 2015, the court ordered Branham to pay almost
$39,000 in sanctions to BCU’s counsel, finding that Branham had “crossed the
line from exploring novel theories [for reversing the bankruptcy distribution to
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 5 of 11
Newland] to harassment of BCU and manipulation of these proceedings to
badger BCU.” Appellant’s App. Vol. 3 at 140.
[9] On October 26, 2015, Eckerle filed a 123-page complaint against Appellees
alleging ten counts of defamation, one count of invasion of privacy, and one
count of abuse of process, which is based solely on Appellees’ actions in AP-
128. See id. at 5 (Eckerle’s complaint: “The conduct of [Appellees] specifically
directed towards Mr. Eckerle in AP-128 is the basis of Mr. Eckerle’s abuse of
process claim under Count XII of this Complaint.”); see also Appellant’s App.
Vol. 6 at 36 (Eckerle’s summary judgment memorandum: “[Appellees have]
moved for summary judgment in their favor on Count XII of Mr. Eckerle’s
complaint, which alleges abuses by [Appellees] of the federal Bankruptcy Court
processes in AP-128.”).2 Eckerle alleged that, although he was not a party to
AP-128, “Branham (through its attorneys) repeatedly attempted to inject [him]
into those proceedings through their defamatory statements and hectoring
comments[,]” and that he was “required to maintain a constant vigil over the
proceedings in AP-128, in order to protect his interests from [Appellees’]
abuses.” Appellant’s App. Vol. 3 at 120. Eckerle further alleged that he
“detected an ulterior motive in [Appellees’] seemingly innocuous attempts … to
obtain a general attachment, garnishment and involuntary assignment” of
BCU’s and Newland’s “causes of actions against third parties and against each
2
In light of these unequivocal statements, Eckerle’s assertion in his reply brief that his abuse of process claim
is also based on Appellees’ actions in Causes 517 and 001 and a third cause is not well taken.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 6 of 11
other[,]” which could then be used as a basis for asserting “additional claims
against Newland’s professionals, including [himself].” Id. at 120, 121.
[10] In February 2016, the trial court issued a case management order that
established November 1, 2016, as the deadline to file summary judgment
motions, which could be filed only by leave of court. In April 2016, the parties
filed cross motions for partial summary judgment on Eckerle’s defamation and
invasion of privacy claims. In August 2016, the trial court granted Appellees’
motion and denied Eckerle’s motion. Eckerle appealed, and another panel of
this Court affirmed the trial court’s ruling. Eckerle v. Katz & Korin, P.C., 81
N.E.3d 272 (Ind. Ct. App. 2017), modified on reh’g, ___ N.E.3d ___, 2017 WL
4455655 (Ind. Ct. App. Oct. 6, 2017), trans. pending.
[11] On October 20, 2016, Appellees filed a motion for summary judgment as to one
of the two elements of Eckerle’s abuse of process claim: “ulterior motive or
purpose[.]” Appealed Order at 3 (citing Estate of Mayer v. Lax, Inc., 998 N.E.2d
238, 256 (Ind. Ct. App. 2013), trans. denied (2014)). Appellees also argued that
many of the alleged acts or omissions were committed by other parties and/or
fell outside the two-year statutory limitation period. See Ind. Code § 34-11-2-
4(a) (providing that an action for injury to person or character “must be
commenced within two (2) years after the cause of action accrues.”).
[12] On October 28, 2016, Eckerle filed a motion for enlargement of time to respond
to Appellees’ summary judgment motion, and the trial court gave him until
January 23, 2017, to file a response. On December 27, 2016, Eckerle filed a
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 7 of 11
response to Appellees’ summary judgment motion. He also filed a cross motion
for summary judgment as to both the first element and the second element (“a
willful use of process not proper in the regular conduct of proceedings”) of his
abuse of process claim, as well as to the alleged preclusive effect of findings
made by the bankruptcy court regarding the legitimacy of Branham’s claims
and litigation tactics in AP-128. Appealed Order at 3 (citing Estate of Mayer, 998
N.E.2d at 256).
[13] Appellees filed a motion to strike Eckerle’s cross motion as to any issue other
than ulterior motive as untimely, which the trial court granted in January 2017.
In April 2017, the trial court issued a final judgment granting Appellees’
summary judgment motion and denying Eckerle’s cross motion. Eckerle now
appeals.
Discussion and Decision
[14] Eckerle contends that the trial court erred in granting Appellees’ motion for
summary judgment and denying his cross motion for summary judgment on his
abuse of process claim.3 “Summary judgment is appropriate only when there is
no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law.” Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d
263, 267 (Ind. 2014) (citing Ind. Trial Rule 56(C)). We review the grant or
3
Eckerle also contends that the trial court erred in granting Appellees’ motion to strike his cross motion for
summary judgment as to any issue other than ulterior motive. Given our resolution of this appeal, we need
not address this contention.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 8 of 11
denial of a summary judgment motion de novo. Layne v. Layne, 77 N.E.3d
1254, 1264 (Ind. Ct. App. 2017), trans. denied. The filing of cross motions for
summary judgment does not alter our standard of review, as we consider each
motion separately to determine whether the moving party is entitled to
judgment as a matter of law. Roberts v. Henson, 72 N.E.3d 1019, 1026 (Ind. Ct.
App. 2017). We may affirm a grant of summary judgment on any theory
supported by the designated evidence. Alva Elec., 7 N.E.3d at 267.
[15] “A plaintiff claiming abuse of process must show a misuse or misapplication of
process for an end other than that which it was designed to accomplish.” Estate
of Mayer, 998 N.E.2d at 256 (footnote omitted). As stated above, Eckerle’s
abuse of process claim is based on Appellees’ actions in AP-128, to which he
was not a party. Eckerle cites no authority for the proposition that an abuse of
process claim may be brought by someone who was not a party to the process at
issue. In fact, case law from Indiana and elsewhere holds otherwise.
[16] In Strutz v. McNagny, 558 N.E.2d 1103 (Ind. Ct. App. 1990), trans. denied, Strutz
was an attorney and the beneficiary of certain trusts. The trusts brought an
accounting action that was maintained by Strutz, who was “not technically a
party to the action[,]” rather than the trustee of the trusts. Id. at 1106.
“Because of facts which were unearthed in that action,” attorneys McNagny
and Boggs filed suit “against Strutz for professional malpractice and unjust
enrichment. The malpractice/unjust enrichment action was voluntarily
dismissed, with the court instructing that the claims could be pursued in the
original accounting action to avoid unneeded litigation.” Id. at 1105-06. Strutz
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 9 of 11
then filed a complaint alleging, among other things, that McNagny and Boggs
were guilty of abuse of process in both actions. The trial court granted the
defendants’ motion for summary judgment, and Strutz appealed. This Court
affirmed, holding that Strutz’s abuse of process claim for the malpractice/unjust
enrichment action was barred by the two-year statute of limitations. As for the
abuse of process claim for the accounting action, this Court stated,
Strutz alleges that McNagny and Boggs were guilty of abuse of
process … for asserting [malpractice and unjust enrichment]
claims against him in the accounting action but without making
him a party to the lawsuit. Clearly, this allegation on its face fails
to meet the requirement that an action or process be instituted against
the plaintiff in order to sustain [this] cause of action.
Id. at 1107 (emphasis added). Cf. Boyle v. Barnstable Police Dep’t, 818 F. Supp. 2d
284, 304 (D. Mass. 2011) (granting summary judgment for defendants on abuse
of process claim, where record did not include sufficient facts to create genuine
issue concerning their participation in criminal proceedings against plaintiff:
“[A]n abuse of process claim requires that the defendants participate in judicial
proceedings against the plaintiff.”).
[17] Here, Eckerle was not a defendant (and was not allowed to intervene as a
plaintiff) in AP-128, and the mere threat of him being named as a defendant in
future litigation is insufficient to support an abuse of process claim. See Pruitt v.
Chow, 742 F.2d 1104, 1109 (7th Cir. 1984) (affirming summary judgment for
defendants on Pruitt’s abuse of process claim, which was based on their threat
to initiate civil suit against company that allegedly paid Pruitt for fundraising
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 10 of 11
assistance in possible violation of securities law: “[T]he plaintiff has not cited,
nor can we find, any Illinois cases in which a person such as Pruitt has made a
successful claim of abuse of process where there has been no legal action
actually brought against him.… Here, not only is Pruitt’s abuse of process
claim based entirely [on] a mere threat of a lawsuit, but the threat was not even
directed at him.”) (citing, inter alia, RESTATEMENT (SECOND) OF TORTS § 682
(1977)); State v. Rendelman, 947 A.2d 546, 557 n.9 (Md. 2008) (noting that “the
mere threat of the initiation of meritless or frivolous litigation” does not
constitute abuse of process, which requires “the actual pursuit of litigation to be
applicable.”). Therefore, we affirm the trial court’s judgment.
[18] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CT-735 | November 14, 2017 Page 11 of 11