Koors v. Great Southwest Fire Ins. Co., No. 29A02-8708-CV-00315
| Docket Nº | No. 29A02-8708-CV-00315 |
| Citation | 530 N.E.2d 780 |
| Case Date | December 01, 1988 |
| Court | Court of Appeals of Indiana |
Page 780
v.
GREAT SOUTHWEST FIRE INSURANCE COMPANY, Appellee (Defendant).
Donald E. HEDRICK, et al., Appellant (Defendant),
v.
Edward H. KOORS, et al., Appellee (Plaintiff).
Second District.
Page 781
Michael J. Tosick, Free, Brand, Tosick & Allen, Greenfield, for Edward H. Koors, et al.
Vance Hartke, Hartke & Hartke, Falls Church, Va., for Donald E. Hedrick, et al.
Robert W. Geddes, Michael E. Simmons, Hume, Smith, Geddes & Green, Indianapolis, for Great Southwest Fire Ins. Co.
BUCHANAN, Judge.
This is a consolidated appeal arising from an action brought by a class of investors, Edward H. Koors, et al. (Investors), against certain directors and officers of Brown County Ski Mountain Resort (the Resort) to recover their investment, based on allegations that the sale of the securities of the Resort was in violation of the Indiana Securities Act. The trial court granted summary judgment in favor of the Investors and against Donald E. Hedrick (Hedrick), awarding $584,448.82 in damages. The Investors then sought recovery of the judgment through proceedings supplemental against Great Southwest Fire Insurance Company (the Garnishee). The trial court entered judgment in favor of the Garnishee.
We reverse.
Hedrick served as an officer and director of the Resort, an Indiana corporation, from the time of its incorporation in June of 1979. As a means of financing the Resort, several investment notes were sold to individuals. Unfortunately, the Resort experienced financial difficulties and was unable to meet its obligations on the investment notes. The Investors filed a class action suit on January 9, 1985, claiming the investment notes were sold in violation of the Indiana Securities Act.
The procedural setting in this case is vital to our resolution and requires some elaboration. On March 12, 1985, the trial court conducted a hearing on the Investors' request for class certification. While the Investors were present and represented by counsel, Hedrick and the other named defendants failed to appear. On March 27, 1985, the trial court certified the cause as a class action pursuant to Ind. Rules of Procedure, Trial Rule 23. On April 4, 1985, Gregory F. Hahn (Hahn), a defendant, moved to set aside the class certification, claiming that no defense counsel of record received notice of the class certification hearing. The trial court denied Hahn's motion the following day. On April 9, 1985, Hedrick moved to set aside the class certification, also claiming lack of notice of the hearing. The trial court denied Hedrick's motion on November 6, 1985.
The Investors moved for summary judgment on May 1, 1985, and asserted additional grounds for summary judgment on July 12, 1985. Hedrick and James Haley (Haley), a defendant, failed to appear for the August 14, 1985, hearing on the summary judgment motion. The trial court eventually set aside its entry of summary judgment in favor of the Investors, apparently due to lack of notice to Hedrick and Haley.
The hearing on the summary judgment motion was reset for October 23, 1985. Due to scheduling conflicts of the court and counsel for the plaintiffs and defendants, the hearing on the summary judgment motion was continued on six occasions. Hedrick's counsel, John S. Pearce (Pearce) and John R. Price (Price), requested a continuance on three of the six occasions. The final continuance granted was requested by Hedrick's counsel on February 6, 1986, due to a conflict in schedule.
Pearce and Price perceived a potential conflict of interest because they knew the corporate attorney who had been hired to secure approval of the sale of the investment
Page 782
notes from the Indiana Securities Commissioner. Therefore, on February 24, 1986, Pearce moved for leave to withdraw his appearance as Hedrick's attorney. That same day, the trial court granted Pearce's motion. The following week, Price also requested leave to withdraw his appearance as Hedrick's attorney. The trial court approved Price's withdrawal on Friday, March 7, 1986. Nothing in the record shows that Hedrick was aware of the potential conflict of interest.On Tuesday, March 11, 1986, the law firm of Hartke & Hartke (Hartke) of Falls Church, Virginia, contacted the court administrator by telephone, requesting the court to enter its appearance for Hedrick 1 and requesting a continuance of the hearing scheduled for March 12, 1986. Hartke claims the requests were made with the court administrator because the trial judge...
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Martin v. Amoco Oil Co., No. 56A03-9409-CV-333
...they petitioned to intervene after the verdict to pursue a separate motion to correct error. 6 Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780 (Ind.Ct.App.1988), reh'g denied; CSX Transp., Inc. v. Rabold, 593 N.E.2d 1277 (Ind.Ct.App.1992), trans. denied; CSX Transp., Inc. v. Clark, 6......
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Aikman v. City of Indianapolis, No. 49A04-1209-OV-470
...for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988)[,] [(abrogated on other grounds by Martin v. Amoco Oil Co., 679 N.E.2d 139, 144 (Ind. Ct. App. 1997)]; see Ind. Tria......
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Marriage of Snemis, In re, No. 56A03-8910-CV-432
...of New Castle, Inc. (1979), 271 Ind. 286, 392 N.E.2d 459, reh. denied; Koors v. Great Southwest Fire Ins. Co. (1988), Ind.App., 530 N.E.2d 780, reh. denied, 538 N.E.2d 259 While it is unquestionably the case that the timely filing of the original record is a jurisdictional act for an appell......
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Fetner v. Maury Boyd & Associates, Inc., No. 49A04-9001-CV-11
...of a continuance is clearly within the discretion of the trial court. Koors v. Great Southwest Fire Insurance Co. (1988), Ind.App., 530 N.E.2d 780, 783, reh. denied, 538 N.E.2d 259. Denial of the motion is an abuse of discretion only if the movant shows good cause for granting the motion. I......
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Martin v. Amoco Oil Co., No. 56A03-9409-CV-333
...they petitioned to intervene after the verdict to pursue a separate motion to correct error. 6 Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780 (Ind.Ct.App.1988), reh'g denied; CSX Transp., Inc. v. Rabold, 593 N.E.2d 1277 (Ind.Ct.App.1992), trans. denied; CSX Transp., Inc. v. Clark, 6......
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Aikman v. City of Indianapolis, No. 49A04-1209-OV-470
...for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988)[,] [(abrogated on other grounds by Martin v. Amoco Oil Co., 679 N.E.2d 139, 144 (Ind. Ct. App. 1997)]; see Ind. Tria......
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Marriage of Snemis, In re, No. 56A03-8910-CV-432
...of New Castle, Inc. (1979), 271 Ind. 286, 392 N.E.2d 459, reh. denied; Koors v. Great Southwest Fire Ins. Co. (1988), Ind.App., 530 N.E.2d 780, reh. denied, 538 N.E.2d 259 While it is unquestionably the case that the timely filing of the original record is a jurisdictional act for an appell......
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Fetner v. Maury Boyd & Associates, Inc., No. 49A04-9001-CV-11
...of a continuance is clearly within the discretion of the trial court. Koors v. Great Southwest Fire Insurance Co. (1988), Ind.App., 530 N.E.2d 780, 783, reh. denied, 538 N.E.2d 259. Denial of the motion is an abuse of discretion only if the movant shows good cause for granting the motion. I......