Split COA reaffirms original decision for lawyers in dispute over tax sale proceeds

An Indiana Court of Appeals panel has once again split over matters concerning a lawsuit brought against two lawyers, this time granting a petition for rehearing to reaffirm a prior split decision.

In October 2019, a majority of the Indiana Court of Appeals reversed the denial of a motion to dismiss filed by attorneys in Christopher J. McElwee and Monday McElwee Albright f/k/a Monday Jones Albright, Attorneys at Law v. Michael Fish, 18A-CT-2664. The former Monday Jones Albright law firm, now Monday McElwee Albright, had represented 2444 Acquisitions, which was sued in a foreclosure action by owner Michael Fish that continued through 2444’s bankruptcy proceedings.

The firm distributed the proceeds to its clients after the property sold at a tax sale, then notified Fish of the distribution. Fish sued, but the appellate majority ruled that the lawsuit — filed one day outside the two-year statute of limitations — should be dismissed.

In granting Fish’s petition for rehearing, the appellate panel addressed Fish’s argument of that it had wrongly decided  the statute of limitations on his cause of action against McElwee began to run on the date Fish learned that McElwee had transferred to 2444 Acquisitions the surplus tax sale funds he had been ordered by the bankruptcy court to hold pending court order.

Fish argued the correct date for the beginning of the limitations period was the date the trial court in the foreclosure action ordered 2444 to turn the surplus funds over to Fish. Essentially, he said that until that until the foreclosure court ordered the turnover, he had no cause of action against McElwee.

The appellate majority, however, disagreed with Fish’s assertion Tuesday in Christopher J. McElwee and Monday McElwee Albright f/k/a Monday Jones Albright, Attorneys at Law v. Michael Fish, 18A-CT-2664.

“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 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,” the majority, including Senior Judge John Sharpnack and Chief Judge Cale Bradford, wrote.

“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.”

The majority therefore affirmed its original opinion and remanded to the Marion Superior Court to grant McElwee’s motion to dismiss.

But Judge Elaine Brown again dissented from the majority’s grant of the petition for rehearing in a separate opinion, stating she would grant rehearing for the purpose of affirming the trial court in accordance with her original dissent in the case. In that dissent, Brown wrote that Fish filed his claims within the statute of limitations.

Tuesday’s opinion marks the third time the COA has ruled in this litigation. Back in 2015, the appellate court reversed the grant of Acquisition 2444’s request for relief from judgment in the foreclosure action.