Thomas N. Eckerle v. Katz & Korin, PC and Michael W. Hile , 84 N.E.3d 722 ( 2017 )


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  •                                                                          FILED
    Oct 06 2017, 10:55 am
    OPINION ON REHEARING
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
    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,                                         October 6, 2017
    Appellant-Plaintiff,                                       Court of Appeals Case No.
    49A02-1608-CT-1894
    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
    May, Judge.
    Court of Appeals of Indiana | Opinion on Rehearing 49A02-1608-CT-1894 | October 6, 2017      Page 1 of 4
    [1]   Thomas N. Eckerle requests we reconsider our opinion for a variety of reasons.
    We grant rehearing for the sole purpose of correcting two immaterial factual
    errors.
    [2]   Paragraph 4 of Eckerle v. Katz & Korin, P.C. and Michael W. Hile, 49A02-1608-
    CT-1894 (Ind. Ct. App., Aug. 9, 2017), reads:
    Branham filed bankruptcy in 2004. Eckerle represented Newland
    in those bankruptcy proceedings. At the same time, Branham
    sued Newland and various defendants related to the BCU [Boone
    County Utilities, Inc.] transaction, including Eckerle, in Boone
    County, alleging conversion, conspiracy, and breach of contract
    (“Claim 517”). The claims alleging conversion and conspiracy
    were dismissed, and Branham was awarded approximately
    $390,000 from Newland on its breach of contract claims.
    Id. at *1.
    [3]   The parties now agree Branham did not file bankruptcy and Eckerle was not a
    defendant in Claim 517. Therefore, that paragraph should read:
    Branham sued Newland and various defendants related to the
    BCU transaction in Boone County, alleging conversion,
    conspiracy, and breach of contract (“Claim 517”). The claims
    alleging conversion and conspiracy were dismissed, and
    Branham was awarded approximately $390,000 from Newland
    on its breach of contract claims.
    [4]   Paragraph 5 of our opinion also indicates Eckerle was a defendant in Claim
    517:
    Court of Appeals of Indiana | Opinion on Rehearing 49A02-1608-CT-1894 | October 6, 2017   Page 2 of 4
    In 2011, Branham, represented by Stewart & Irwin (“S&I”), sued
    Newland and thirty-one other defendants, including Eckerle, in
    Boone County (“Claim 001”), asserting criminal offenses related
    to distribution of certain BCU-related funds as part of BCU’s
    bankruptcy proceedings, from which Branham claimed it was
    entitled to treble damages under the Indiana Crime Victim’s
    Recovery Act (“ICVRA”) and Indiana’s Racketeer Influenced
    and Corrupt Organizations Act (“RICO”) statutes. Via a
    Proceedings Supplemental, Branham also sought to collect from
    the defendants in Claim 517, including Eckerle. Branham was
    not successful in any of its actions in Claim 001 or the
    Proceedings Supplemental to Claim 517.
    Id. As noted above, the parties agree Eckerle was not a defendant in Claim 517.
    Instead, Branham named him as a garnishee-defendant in its Proceedings
    Supplement in 2011. (Appellant’s App. Vol III at 148-9.) Therefore, the
    paragraph should read:
    In 2011, Branham, represented by Stewart & Irwin (“S&I”), sued
    Newland and thirty-one other defendants, including Eckerle, in
    Boone County (“Claim 001”), asserting criminal offenses related
    to distribution of certain BCU-related funds as part of BCU’s
    bankruptcy proceedings, from which Branham claimed it was
    entitled to treble damages under the Indiana Crime Victim’s
    Recovery Act (“ICVRA”) and Indiana’s Racketeer Influenced
    and Corrupt Organizations Act (“RICO”) statutes. Via a
    Proceedings Supplemental, Branham also sought to collect from
    the defendants in Claim 517. Eckerle was included as a
    garnishee-defendant in Branham’s motion for Proceedings
    Supplemental in Claim 517. Branham was not successful in any
    of its actions in Claim 001 or the Proceedings Supplemental to
    Claim 517.
    Court of Appeals of Indiana | Opinion on Rehearing 49A02-1608-CT-1894 | October 6, 2017   Page 3 of 4
    [5]   These corrections are necessary to clarify the history of the proceedings leading
    up to the issues in this case, but they do not affect our analysis. The case from
    which this rehearing stems concerns Appellees’ use of the affirmative defense of
    absolute privilege in response to Eckerle’s claims of defamation. The alleged
    defamatory statements were published in Appellees’ responsive pleading to
    Eckerle’s motion to intervene in an adversary proceeding filed by BCU in the
    U.S. Bankruptcy Court. The alleged defamatory statements mentioned Claim
    517, however, our holding that those statements were protected by absolute
    privilege does not turn on the facts we amend in this rehearing.
    [6]   We affirm our earlier opinion in all other respects.
    Brown, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Opinion on Rehearing 49A02-1608-CT-1894 | October 6, 2017   Page 4 of 4
    

Document Info

Docket Number: 49A02-1608-CT-1894

Citation Numbers: 84 N.E.3d 722

Filed Date: 10/6/2017

Precedential Status: Precedential

Modified Date: 1/12/2023