                                                                                       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

                                                                                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



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
