Court of Appeals of Indiana | Opinion on Rehearing 18A-CT-2664 | January 21, 2020 Page 1 of 5

OPINION ON REHEARING

ATTORNEYS FOR APPELLANTS

Alice M. Morical

Michael A. Dorelli

Patrick A. Ziepolt

Hoover Hull Turner LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

R. Brock Jordan

Christopher M. Trapp

Katz Korin Cunningham PC

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher J. McElwee and 

Monday McElwee Albright 

f/k/a Monday Jones Albright,

Attorneys at Law,

Appellants-Defendants,

v.

Michael Fish,

Appellee-Plaintiff

January 21, 2020

Court of Appeals Case No.

18A-CT-2664

Appeal from the Marion Superior 

Court

The Honorable Gary L. Miller,

Judge

Trial Court Cause No.

49D03-1803-CT-8543

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 2 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 3 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 4 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 5 of 5

OPINION ON REHEARING

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE

Alice M. Morical

Michael A. Dorelli 

Patrick A. Ziepolt 

Hoover Hull Turner LLP 

Indianapolis, Indiana

R. Brock Jordan 

Christopher M. Trapp

Katz Korin Cunningham PC 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher J. McElwee and 

Monday McElwee Albright 

f/k/a Monday Jones Albright, 

Attorneys at Law,

Appellants-Defendants,

January 21, 2020

Court of Appeals Case No. 

18A-CT-2664

Appeal from the Marion Superior 

Court

v.

The Honorable Gary L. Miller, 

Judge

Michael Fish,

Trial Court Cause No. 

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.