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

• Court: Indiana Court of Appeals
• Decided: January 21, 2020
• Docket: 18A-CT-2664
• Status: Published

Opinion

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

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.

Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 5 of 5