Kirchoff v. Selby

• Decision Date: 10 December 1997
• Docket Number: No. 26A01-9601-CV-34,26A01-9601-CV-34
• Citation: Kirchoff v. Selby, 688 N.E.2d 1284 (Ind. App. 1997)
• Parties: Ralph KIRCHOFF and Wilma Kirchoff, Appellants/Cross-Appellees-Defendants/Counterclaimants, v. Jeff W. SELBY and Daniel L. Selby, Appellees/Cross-Appellants-Plaintiffs/Counterdefendants.
• Court: Indiana Appellate Court

Page 1284

688 N.E.2d 1284

Ralph KIRCHOFF and Wilma KirchoffAppellants/Cross-Appellees-Defendants/Counterclaimants, v.Jeff W. SELBY and Daniel L. SelbyAppellees/Cross-Appellants-Plaintiffs/Counterdefendants.

No. 26A01-9601-CV-34.

Court of Appeals of Indiana.

Dec. 10, 1997.

Patrick A. Shoulders, Robert L. Burkart, Ziemer, Stayman, Weitzel & Shoulders, Evansville, for Appellants/Cross-Appellees-Defendants/Counterclaimants.

Dean E. Richards, Indianapolis, for Appellees/Cross-Appellants-Plaintiffs/Counterdefendants.

OPINION ON REHEARING

BAKER, Judge.

Appellant-defendants Ralph and Wilma Kirchoff have petitioned this court for rehearing, arguing, among other things, that we improperly addressed an issue in our opinion that was not raised by the parties on appeal.In our opinion, 686 N.E.2d 121, we stated, in pertinent part, as follows:

As a result, we hold that the Selbys can maintain a cause of action against the Kirchoffs only under the following circumstances: (1) the Selbys purchased Worthington Bank stock directly from the Kirchoffs, as the Selbys contend [direct theory]; or (2) the Selbys bought Bancshares stock from Bancshares and the Kirchoffs participated in soliciting the Selbys' purchase with the motivation or desire to serve their own or Bancshares' financial interests [indirect theory].

686 N.E.2d at 129.According to the Kirchoffs, we should not have considered whether the Selbys could maintain their cause of action for securities fraud pursuant to an indirect theory because the Selbys advanced only a direct theory of liability at trial.As a result of our discussion regarding the direct and indirect theories, the Kirchoffs argue that we erroneously permitted the Selbys to advance an additional theory on remand which they never asserted in the trial court.We disagree.

The Kirchoffs correctly note that the Selbys advanced a direct theory of liability during trial and in their appellate brief.As we noted in footnote nine of our opinion, however, the evidence regarding whether the Selbys purchased either Worthington Bank or Bancshares stock was conflicting.In fact, the parties used considerable portions of their briefs disputing whether the Selbys purchased Worthington Bank stock or Bancshares stock.686 N.E.2d at 129 n.9.Given the conflicting evidence on this issue, we stated that the trial court should determine, on remand, whether the Selbys purchased stock from Worthington Bank or Bancshares, and the extent of the Kirchoffs'...