Thomas N. Eckerle v. Katz & Korin, P.C., and Michael W. Hile (mem. dec.) ( 2017 )


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  • 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