Thomas N. Eckerle v. Katz & Korin, PC and Michael W. Hile

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