Branham Corp. v. Newland Res., LLC
Decision Date | 23 September 2014 |
Docket Number | No. 06A05–1311–CT–572.,06A05–1311–CT–572. |
Citation | 17 N.E.3d 979 |
Parties | The BRANHAM CORPORATION, Appellant–Plaintiff, v. NEWLAND RESOURCES, LLC ; Samuel Sutphin; White River Funding Corp.; White River Venture Partners, L.P.; Gene Tanner; David Knall; Madeira Partners, L.P. ; Mike Henderson; Brian Henderson; Tim DeBruiker; Driver Solutions, LLC ; Archie Leslie; Fifth Third Bank; Ecoholdings, LLC; Dorothy Alig; Greenleaf, LLC; Royal Run Partners, L.P.; John Michael Kensill; Susan Kensill, and Ecosource, LLC, Appellees–Defendants. Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp., Appellants–Defendants, v. The Branham Corporation, Appellee–Plaintiff. |
Court | Indiana Appellate Court |
Donn H. Wray, Marc A. Menkveld, Katz & Korin, PC, Mickey J. Lee, McGinnis Wutscher Beiramee, LLP, Indianapolis, IN, Roger L. Burrus, Burrus & Sease, LLP, Zionsville, IN, Attorneys for Appellant the Branham Corporation.
Dina M. Cox, Neal Bowling, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellants Thomas N. Eckerle and Thomas N. Eckerle Prof. Corp.
Paul D. Vink, Bryan H. Babb, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee White River.
Robert V. Clutter, Sergey G. Grechukhin, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, Attorneys for Appellee Newland Resources, LLC and Dorothy Alig.
Julia Blackwell Gelinas, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Fifth Third Capital Holdings, LLC.
Melissa R. Garrard, Melissa R. Garrard, Attorney at Law, P.C., Lebanon, IN, Attorney for EcoHoldings, LLC.
Thomas E. Densford, Bauer & Densford, Bloomington, IN, Attorney for John Michael Kensill and Susan Kensill.
Donn H. Wray, Marc A. Menkveld, Katz & Korin, PC, Mickey J. Lee, McGinnis Wutscher Beiramee, LLP, Indianapolis, IN, Roger L. Burrus, Burrus & Sease, LLP, Zionsville, IN, Attorneys for Appellee the Branham Corporation.
In 2007, The Branham Corporation (Branham) obtained a judgment against Newland Resources, LLC (Newland) and related entities for breach of contract. The judgment was uncollectible in light of 2004–2005 distributions by Newland that had depleted corporate assets available for creditors. In 2011, Branham filed proceedings supplemental and new claims for relief under the Indiana Crime Victims Relief Act, Indiana Code section 34–24–3–1 (Victims Relief Act)1 and Indiana's Corrupt Business Influence Act, Indiana Code section 34–24–2–6 (RICO).2 In addition to Newland, named defendants included the appellees: Samuel Sutphin (Sutphin), White River Funding Corp., White River Venture Partners, L.P., Gene Tanner, David Knall, Madeira Partners, L.P., Mike Henderson, Brian Henderson, Tim DeBruiker, Driver Solutions, LLC, Archie Leslie, Fifth Third Bank, EcoHoldings, LLC (EcoHoldings), Dorothy Alig, Greenleaf, LLC (Greenleaf), Royal Run Partners, L.P., John Michael Kensill (Kensill), Susan Kensill, and Ecosource, LLC (Ecosource).3 Summary judgment was granted to the majority of the defendants4 on the new claims, on statute of limitations and res judicata grounds. Branham appeals the grant of summary judgment.
The appeal of the grant of summary judgment has been consolidated with an appeal by Thomas Eckerle, a past provider of legal services to Newland, and the Thomas Eckerle Professional Corporation (collectively, Eckerle). Eckerle appeals the denial of a motion to correct error which challenged the February 4, 2013 dismissal, without prejudice, of Eckerle as a defendant. We affirm the trial court's summary judgment order but remand for inclusion of Eckerle as a prevailing defendant. We reverse the order dismissing Eckerle.
Branham presents three issues for review, which we consolidate and restate as the following issue: whether summary judgment was improvidently granted.
Eckerle presents a single, consolidated issue: whether he, like the other defendants, was entitled to a grant of summary judgment as opposed to a dismissal that deprived him of the opportunity to protect his professional reputation and seek attorney's fees from Branham for frivolous litigation.
To date, Branham has not been paid a 2007 judgment obtained against Newland. Branham has alleged that funds that would have been available to pay the judgment were wrongfully depleted by Newland's 2004–2005 distributions of proceeds Newland received upon the 2004 sale of its wholly-owned subsidiary, Boone County Utilities, LLC (BCU). The distributions to shareholders and members, which took place during BCU's bankruptcy proceedings, left Newland and BCU with joint assets of less than $10,000.
The facts surrounding the September 15, 2004 commencement of litigation5 and the November 2, 2007 jury verdict were recited by this Court in a prior appeal:
Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763, 767–69 (Ind.Ct.App.2009) (“Newland I ”). The Newland I Court determined that the trial court did not err in its interpretation of the contractual provisions triggering the entitlement to and calculation of the success fee, and that there was sufficient evidence before the jury on the issue of the purchase price to support the jury's calculation of the success fee. Id. at 771. The matter was remanded for the calculation of post-judgment interest owed to Branham. Id. at 773.
On cross-appeal, Branham argued that the trial court erred by dismissing counts alleging a civil...
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