801 N.E.2d 642 (Ind.App. 2003), 49A02-0304-CV-300, Gorski v. DRR, Inc.

Docket Nº:49A02-0304-CV-300.
Citation:801 N.E.2d 642
Party Name:James B. GORSKI, Personal Representative of the Estate of Jennifer M. Gorski, Appellant-Plaintiff, v. DRR, INC., d/b/a Hots Show Club, Appellee-Judgement-Defendant, L.M.B. JR. INC. a/k/a LMB Jr., Inc. and Leonard M. Birk, Jr., Appellees-Garnishees-Defendants.
Case Date:December 24, 2003
Court:Court of Appeals of Indiana
 
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Page 642

801 N.E.2d 642 (Ind.App. 2003)

James B. GORSKI, Personal Representative of the Estate of Jennifer M. Gorski, Appellant-Plaintiff,

v.

DRR, INC., d/b/a Hots Show Club, Appellee-Judgement-Defendant,

L.M.B. JR. INC. a/k/a LMB Jr., Inc. and Leonard M. Birk, Jr., Appellees-Garnishees-Defendants.

No. 49A02-0304-CV-300.

Court of Appeals of Indiana

December 24, 2003.

Rehearing Denied March 1, 2004.

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C. Dennis Wegner, Jeffrey K. Orr, C. Dennis, Wegner & Assoc., P.C., Indianapolis, IN, Attorneys for Appellant.

Richard M. Malad, Eric S. Pavlack, Cohen & Malad, LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

James Gorski's wife was killed in a collision with an intoxicated motorist. Gorski, as personal representative of his wife's estate, filed a wrongful death complaint against a club, arguing that the club served alcohol to the motorist after the motorist was already visibly intoxicated. Prior to the trial, the owners of the club sold their interest to Leonard M. Birk, Jr., and LMB Jr., Inc. ("LMB"). Following a jury trial, judgment was entered in favor of Gorski and against the club and its original owners. Gorski filed a garnishment complaint against Birk and LMB. Birk and LMB filed a Motion to Dismiss which the trial court granted. Gorski now appeals. We reverse.

Issue

Gorski raises two issues for our review which we consolidate and restate as whether the trial court properly granted Birk and LMB's Motion to Dismiss.

Facts and Procedural History

On February 12, 1997, Gorski's wife Jennifer was killed in a head-on collision with a vehicle operated by Ronald Onkst. Onkst was intoxicated at the time of the collision. As personal representative of Jennifer's estate, Gorski filed a wrongful death action under the Dram Shop Act against DRR, Inc., d/b/a HOTS Show Club (the "club"). The action alleged that DRR breached its statutory and common law duty by serving alcoholic beverages to Onkst when he was visibly intoxicated. The action also alleged that the breach of duty was the proximate cause of Jennifer's death.

At the time of the accident and Jennifer's death, DRR was the sole owner of the club. DRR's stock was owned by two individuals, Ronald Solgot and Paul Oliphant, each of whom owned fifty per cent. On or about March 6, 1998, Birk entered into a contract with Solgot (the "Solgot contract") for the purchase of Solgot's shares. LMB, Birk's company, purchased Solgot's fifty per cent share of DRR stock including Solgot's fifty per cent interest in the furniture, equipment, and good name of the club.

In the Solgot contract, LMB and Birk agreed to assume responsibility and liability for all debts, liabilities, and obligations of DRR incurred on or after April 6, 1998, including the cost of defending actual or

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threatened litigation. LMB also agreed to timely pay all debts and obligations of DRR and the club incurred prior to April 6, 1998. LMB began operating the club on March 6, 1998. Gorski filed the wrongful death action against DRR and the club on June 12, 1998.

On August 26, 1998, LMB and Birk entered into a contract with Oliphant (the "Oliphant contract") for the sale of Oliphant's fifty per cent interest in DRR's stock and assets. The Oliphant contract provided that LMB and Birk agreed to assume and become solely responsible for all the debts of DRR including all operational debts and expenses and all other liabilities and claims of every kind. Upon the execution of the Oliphant contract, LMB and Birk owned all the stock in DRR and all of DRR's assets.

On February 15, 2000, DRR advised Gorski that DRR's stock had been sold. DRR refused to disclose any additional information until June 15, 2000, when DRR acknowledged delivery to Gorski's counsel of stock purchase agreements between LMB and DRR.

On January...

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