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Eckerle v. Katz & Korin, P.C.

Court of Appeals of Indiana

August 9, 2017

Thomas N. Eckerle, Appellant-Plaintiff,
Katz & Korin, P.C. and Michael W. Hile, Appellees-Defendants

         Appeal from the Marion Superior Court The Honorable James B. Osborn, Judge Trial Court Cause No. 49D14-1510-CT-35444

          APPELLANT PRO SE Thomas N. Eckerle Carmel, Indiana.

          ATTORNEYS FOR APPELLEES Douglas D. Church Alexander P. Pinegar Kevin S. Smith Church Church Hittle & Antrim Noblesville, Indiana.

          MAY, JUDGE.

         [¶1] Thomas N. Eckerle ("Eckerle") appeals the trial court's grant of partial summary judgment in favor of Katz & Korin, P.C. ("Katz") and Michael W. Hile ("Hile") (collectively, "Law Firm"). He presents several issues for our review, one of which we find dispositive: whether the trial court erred when it determined Law Firm was immune from liability under the absolute privilege doctrine for any statements made about Eckerle. We affirm.

         Facts and Procedural History

         [¶2] This action was born of a more-than-a-decade-long series of claims centered around a failed utility company, the history of which is required to understand the defamation issues raised herein. In 1995, Newland Resources, LLC ("Newland") and Branham Corp. ("Branham") entered into an agreement to form Boone County Utilities, LLC ("BCU"), a "small sewer/water utility to service real estate developments in the southeastern corner of Boone County, Indiana." (Br. of Appellant at 17.) BCU was subject to enforcement proceedings before the Indiana Utility Regulatory Commission ("IURC") and subsequently filed for bankruptcy in 2003.

         [¶3] Eckerle is an attorney licensed to practice law in Indiana and represented one of BCU's investors, White River Venture Partners, LLC ("White River") in BCU's bankruptcy proceedings. The bankruptcy court ordered and consummated the sale of BCU's utility assets to the Town of Whitestown and confirmed BCU's liquidation plan. The liquidation plan "called for BCU's creditors to be paid 100% of their allowed claims and for the distribution of $3.0 million to Newland, BCU's sole member, per its allowed equity interest." (Id.)

         [¶4] 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 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.

         [¶5] 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.[1] Branham was not successful in any of its actions in Claim 001 or the Proceedings Supplemental to Claim 517.

         [6] On April 12, 2012, BCU reopened its bankruptcy action and filed a complaint ("AP-128") against Branham and S&I, asking the bankruptcy court to declare its rulings in the BCU bankruptcy had a preclusive effect relating to the claims set forth in Claim 517 and Claim 001. In May 2012, Law Firm entered its appearance for S&I and, in June 2012, filed a motion to dismiss S&I from the proceedings. On October 4, 2012, the bankruptcy court granted S&I's motion to dismiss without prejudice, subject to BCU's right to later seek sanctions against S&I.

         [¶7] BCU filed an amended complaint in bankruptcy court on August 5, 2013. On October 7, 2013, Law Firm filed an appearance for "Stewart & Irwin, PC, unnamed Defendant." (Appellee's App. Vol. III at 66.) Law Firm also filed a motion to dismiss BCU's amended complaint. On October 21, 2013, Eckerle moved to intervene as a plaintiff in AP-128. In his motion to intervene, Eckerle alleged:

One other cause for my intervention in this AP relates directly to Mr. Hile's defamatory, despicable and completely unfounded charges of bankruptcy fraud leveled against me during the August 22, 2012 Hearing before this Court. At that hearing, Mr Hile stated that, "What occurred respecting Newland" should be characterized as "monkeyshines." The context of that statement clearly reveals that, included in the "monkeyshines, " which occurred concerning Newland, were the actions "of the professionals who appeared in this Court [the bankruptcy court], " referencing me specifically. Mr. Hile followed that "monkeyshines" characterization with the following unabashed statement with respect to the real reason I was allegedly hired by Newland:
Mr. Hile: ... They [the Eckerle Defendants] were professionals retained by Newland to assist it in, pardon my liberal description of its terms, its fraudulent transfer of assets. "Intentional fraudulent transfer of assets."
Mr. Hile's per se defamation of me is actionable and will be the subject of future litigation against Mr. Hile and his firm. The relevance of Mr. Hile's statements to this AP is that they represent yet another assault on this Court's May 16, 2005 Order, which authorized me to perform the services, which Mr. Hile now characterizes as "monkeyshines" and participation in "intentional fraudulent transfer of assets." At the time that Branham had sought to disqualify my representation of Newland and its members in connection with the claims allowance proceeding, Branham had argued that my actions as Newland's attorney were merely "in violation of the Adversary Stay, in violation of Branham's due process rights and in callous disregard for Newland's lack of standing." (See Docket 337, paragraph no. 8.) Judge Metz's May 16, 2005 Order completely rejected these charges. In defiance of Judge Metz's May 16, 2005 Order, Mr. Hile is essentially renewing Branham's objections to my participation in the Branham's claims allowance proceedings, while now upping the ante by claiming "monkeyshines" and actual fraud. My intervention will allow Branham, Stewart & Irwin, Katz & Korin, Mr. Wray and Mr. Hile to prove their fiendish allegations against me and to explain why these allegations do not contradict this Court's May 16, 2005 Order.

(Appellant's App. Vol. V at 171-2) (errors and emphasis in original). Eckerle also filed a third-party complaint on October 21, 2013, further discussing his claims of defamation and requesting sanctions against Law Firm.

         [¶8] On November 4, 2013, Law Firm filed S&I's response to Eckerle's Motion to Intervene ("November 4 Document"). On November 12, 2013, the bankruptcy court denied Eckerle's Motion to Intervene and his third-party complaint.[2]Eckerle subsequently filed a motion to strike a footnote in the November 4 Document, and on November 27, 2013, the bankruptcy court entered an order striking the November 4 Document "since it was filed by an entity not a party to this adversary proceeding." (Appellant's App. Vol. VI at 181.)[3]

         [¶9] On October 26, 2015, Eckerle filed the action against Law Firm that is at issue in this appeal. In that complaint, he alleged multiple counts of defamation, one count of invasion of privacy, and one count of abuse of process. Eckerle alleged the following statements, made by Law Firm as part of the November 4 Document, were libelous:

(a) "To be clear, counsel's statements in this adversary proceeding have always been aimed at explaining to this Court . . . that probable cause exists for all allegations contained therein. . . . "
(b) "The point of this discourse was to establish that probable cause existed for Branham, through its counsel Stewart & Irwin, to state the claims in Boone County . . . "
(c) "[P]robable cause existed for all claims asserted by Branham in Boone County."

(Appellant's App. Vol. III at 105) (emphasis in original omitted). For each defamation, Eckerle provided "the meanings ascribed to them by context." (Id.) For example, Eckerle incorporated language from Claim 001 and Claim 517 wherein Branham accused the defendants in each action of theft, conversion, receiving stolen property, fraud, deception, ICVRA liability, and RICO activity. The "context" statements generally referenced "the defendants, " (e.g., id. at 106), in the individual claim and not Eckerle by name, though Eckerle was a defendant in each claim.

         [¶10] Eckerle also alleged Law Firm committed libel when it stated, as part of the November 4 Document:

[C]ounsel stated that . . . Newland had undertaken 'Monkey shines' to rid it of all of its assets (nearly $2.4 million transferred from BCU) and left Newland bereft to pay Branham as a judgment creditor. Counsel further advised . . . that professionals were retained and paid by Newland, Newland intentionally fraudulently transferred all of its assets to, among others, its insiders and the Boone County Complaint asserted all possible claims that could derive from those facts.

(Id. at 113) (footnotes omitted). Eckerle explained the quote was a "re-publication by Mr. Hile of his defamatory statement at the August 22, 2012 Hearing, albeit with greater specificity[.]" (Id.) That entire exchange, as quoted by the trial court in its order, included the statements:

MR. HILE: Your honor, if you read the [Claim 001] complaint fully --
THE COURT: Yes, okay.
MR. HILE: -- I will grant you that in the one particular paragraph there are some real quotable quotes but it's in the context of three or four paragraphs before that where it talks about distributions to Newland, which Newland then spun off to third parties and then it says such distributions, in that final phrase which catches the eye and ...

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