*1 Nelson SKALBANIA and 1977, Inc., Appellants
(Defendants Below), Hockey Association, England
World New Quebec
Whalers, Nordiques, Winnepeg
Jets, Stingers, Cincinnati Edmonton Oil
ers, Bulls, Birmingham Appellants
(Defendants Below),
Indianapolis Racers, Indianapolis Racers
Limited, Hockey Inc., Management World,
Hockey Ltd., Non-Appealing De
fendants, SIMMONS,
Al Keith Marshall and Kelly, Appellees
Michael
(Plaintiffs Below).
No. 2-382A71. Indiana, Appeals
Court of
Second District.
Dec. *2 Columbus, Stone, Jones & H. William A1 Through representatives their Simmons Nelson Loveall, Franklin, appellants (Kelly), (Simmons) Kelly and Michael Racers Indianapolis corporate Skalbania suit the various brought Inc. owning operating the Racer entities They also sued Nelson Skalba- franchise.1 Barnard, Pittenger, L. Gordon William C. Racers, (Skalbania), owner of the nia Barnard, Indianapolis, appel- Sommer & (WHA), Hockey the World Association Ass’n. Hockey lants World competed, Racers league which the Locke, Zoccola, Boyd Reynolds, F. Robert comprised which the constituent teams A1 Weisell, Indianapolis, appellees & during the Racers’ final season. league Kel- Simmons, and Michael Keith Marshall In complaint, plaintiffs ly- request damages from Skalbania and the Racers for (Count II, breach of 16); contract R. at BUCHANAN, Judge. Chief breach warranty (Count III, 17); R. at and negligent operation of the Racer fran- CASE SUMMARY (Count VI, 18-19). chise WHA, R. at Against the Hockey Team Racers Indianapolis teams, Skalbania, its constituent Skalbania, the owner, (Racers), its Nelson Racers, plaintiffs request damages for Association, and its constitu- Hockey World (Count I, common law 15); fraud R. at interlocutory bring teams ent common law fraud and breach of fiduciary a class of certification of appeal from the (Count IV, duty 17-18); R. at tortious in- sea- 1978-79 Racers consisting of plaintiffs terference rights with the of the Racers and holders, the trial arguing son ticket plaintiffs in the services and contracts of granting abused its discretion V, players (Count Racer 18); R. at negli- individual because gent and reckless operation negli- of and over matters common predominate gent failure to disclose facts indicative of class. and reckless (Count VII, Racer franchise 19-20); R. at We affirm. tortious interference with the contractual FACTS relationship between and the Rac- ers upon merger negotiations based This case arose from the collapse of the WHA, were conducted between the Indianapolis professional hockey Racers, and the Hockey League National franchise during the 1978-79 season. At (Count 20); VIII R. at support- and conduct the time the team ceased operation, only 13 ing (Count an award of punitive damages of 40 scheduled games home had been IX, R. at played. For clarity we list these various claims on Plaintiffs are a class persons compris- following scorecard: ing 1978-79 Racers season ticket holders. COUNT DEFENDANTS CLAIM
I All Fraudulent and failure to disclosure poor financial condition of disclose the franchise. II Skalbania Breach of contract. express implied
III Racers and Skalbania Breach of warran- ties. Conspiracy misappropriate IV All and mis- funds; appropriation of season ticket fiduciary duty. breach of (cid:127) V Conspiracy All to interfere with and inter- player with Racer contracts. ference Negligent operation VI Racers and of Racer franchise. purposes opinion, Inc., 1977, Inc., Indianapolis 1. For the of this the term and Hock- Racers, World, ey “Racers” includes the dianapolis In- Ltd. Ltd., Hockey Management, DEPENDANTS COUNT CLAIM franchise; supervise Racer Failure All
VII poor operation of nondisclosure franchise. merger negotia- Negligent conduct of All VIII *3 tions. damages. Punitive All IX a “motion 22,1981 filed plaintiffs also owned the Edmonton Oilers. May Skalbania On class action” the conflict of interest ramifica- propriety Despite the to determine hearing 1981 a ownership, dual the WHA let 26). December tions of such (R. at On (R. to determine that motion the two teams at once. held own was certified. Dur- 353). should be the class at whether of Simmons hearing depositions the ing that merger nego- testified that Plaintiffs also elicit- Evidence published. Kelly and were WHA, Racers, and tiations between that out of established hearing at the ed were harmful Hockey League the National (R. at played only 13 games, promised uncertainty to the Racers because class consists of 270) proposed and that the garding the team’s continued 3,500 sea- (id.), holding about 1,140 persons negotiations engendered de- which those Kelly’s (R. 269). Supporting at son tickets (R. at games. attendance at Racers pressed is his representative as a class appointment 401). tickets at a total season of two purchase Kelly testified that Both and Simmons four bought (Id.). Simmons cost $580. expenditures they want their season 275). $1,160 (R. at tickets for 403, 435). all (R. Kelly at described back court, in the included before Evidence “being ticket holders as in the same season advertis- that Racers’ indicates depositions, having in that far as lost the seat as I’m logo the WHA which featured ing appeared 441). (R. invested.” at dollars that was the the WHA 351) and that (R. at court, hearing, the trial on Following the Racers franchise for the sanctioning body 12, 1982, as a February certified this case WHA, sanctioning (R. 380). The at of Proce- pursuant class action Ind.Rules exist and team to league, permitted dure, Trial Rule 23: the Racers 432). allowing (R. By at operate season, plain- 1978-79 upon the to embark least, league at allege tiffs pos- the Racers ORDER CERTIFYING implicitly asserted CLASS ACTION to com- wherewithal the economic sessed matter, having come before represen- 444). Such (R. at plete the season 4, 1981, court on December hearing purchase to the prior were made tations propriety permitting determine the (R. of the class members tickets season proceed action, this action to as a class opera- continued 384). WHA itself at having and the court heard the evidence league Racers folded tion after the following findings now makes the (R. at question. season completed the entry: 272). (cid:127) plaintiffs, 1. The named A1 Simmons the WHA allege that Plaintiffs also Kelly, and Michael are owners of season players for teams received member Indianapolis tickets for the Racers 1978- compensation inadequate or non-existent hockey season. transfers, (R. 457). player at Such 1,140 2. There were approximately in- began, were after the season commenced dividual season ticket owners and a total play- Racers because detrimental 3,500 approximately pur- season tickets disbanding of a er sales constituted Indianapolis chased for the Racers 1978- (R. team. competitive season, hockey including aforemen- vis-a-vis plaintiffs, joinder conduct tioned Insofar as of all such Skalbania’s concerned, shows the evidence owners of 1978-79 the WHA is season tickets is im- that, acquired practicable. at the time he to other superior damages A has filed A action claim for been 3. fair effi- County Superior with the methods for Marion available S178-1491, controversy Court, be- Cause No. in Indian- adjudication cient Indiana, ticket owners season certain apolis, the 1978-79 individuals tween named defendants. who are owners of season tickets for and the Racers 1978-1979 Mi- plaintiffs A1 Simmons 4. damages This claim hockey season. the class of represent seek to Kelly chael has been filed the individuals on owners in season ticket 1978-79 behalf of and all own- themselves other recover com- against defendants claims ers of tickets for the 1978-1979 pu- interest and plus pensatory damages season. of the cessa- damages result as a nitive 1978-79 Racers. operations tion of This suit seeks an award are typical The claims of plus adequately interest compensate season ticket claims 1978-79 1978-1979 Racer season ticket owners owners, and involve common for their economic loss as a result of *4 any over predominate fact which law operations cessation of of the Indi- individual mem- involving only anapolis Racers on or about December bers. 1978, a substantially prior date to and Mi- A1 Simmons plaintiffs 6. The the scheduled end of the Racers’ 1978- adequately rep- Kelly fairly chael season. The hockey suit also 1978-79 season of all resent the interests seeks an punitive damages. award of owners. ticket being claims are aforementioned litigation known There is no other 7. following individuals made ticket wherein a 1978-79 pending organizations: any from of seeking is owner 1. Nelson Skalbania. of the cessa- a result defendants as these Hockey 2. World Association. 1978-79 Racers. of the operations tion of England 3. New Whalers. AS THEREFORE ORDERED IT IS Quebec Nordiques. 4. FOLLOWS: 5. Winnepeg Jets. as a maintained This case shall be 1. Stingers. A1 6. Cincinnati Simmons plaintiffs, class action of representatives as Kelly, and Michael 7. Edmonton Oilers. season ticket Racer the class 1978-79 Bulls. Birmingham 8. 23(B)(3). Rule owners, Trial pursuant 9. Racers. Indianapolis be action shall Notice this class 2. Limited. 10. Racers Indianapolis each individu- mail to by first-class Inc. Management, 11. Hockey identity and whose member the class al 1977, Inc. Indianapolis 12. Racers ap- from the be can determined address World, LTD. Hockey 13. Indianapolis Rac- records propriate The defendants other defendants. ers or judgment entered as a result of and addresses make such identities are to case, this or not to whether favorable on plaintiffs counsel available plaintiffs’ claim on behalf of the class March, 1982, and day the 1st before holders, of season ticket will include all thereafter, counsel sixty (60) days within members request who do not exclusion out Notice send plaintiffs shall from class. As a season own- class. member of the each er, you are a member of un- the class each member The Notice to 3. you less request Any exclusion. class following form: be shall class request member not who does exclusion Indianapolis Racer Sea- 1978-79 Dear will be represented by attorneys desires, son Ticket Owner: the class. member he If a class his by may appearance through maintained enter an From certain records will any listed counsel. The court exclude you are Indianapolis class, member if he or she re- or more season owner of one as the If quests you your exclusion. want tickets action, claim your If ad- excluded from class season. 1978-1979 County you notify must the Marion incorrectly your or if dress listed Court, No. notify Superior City-County please changed, has address Building, Indianapolis, Indiana regarding your attorneys listed below June, day the 1st 1982. writing by proper address. All represented by 5. the trial court Did abuse its discretion following attorneys who are counsel for by certifying Count IV of the amend- the class: complaint, alleging ed a breach defendants, fiduciary duty by all as a Robert F. Zoccola class action? Riggs Randall R. the trial court Did abuse its discretion
Mark J. Roberts certifying V, VII, VIII Locke, Reynolds, Boyd & Weisell IX, alleging tortious interference Square, One Indiana Suite contracts, Racers player failure Indianapolis, Indiana 46204 prevent (317) 639-5534 franchise, merger wrongful Applegate. Judge s/Charles negotiations, punitive damages, Court, Superior Marion County action? as Room No. 1 (R. Appendix 16-18). Yol. at The defend- DECISION ants obtained of this in- a class two action case in which terlocutory appeal pursuant 4(B)(6) to A.R. designated season ticket holders have been urge that the trial court’s certification representatives similar- all those of the class was error. ly Although expect- situated. it is not to be represent many ed that ISSUES heroically prompt Winston Churchill’s *5 and the present Skalbania the fol- Royal during tribute Air Force lowing issues: Britain, “never so much Battle of ... was 1. Did the trial its court abuse discretion many few,” so by owed to so by certifying Count II of amend- been proper certified trial court as ed complaint, seeking damages representatives pursuant to T.R. against the Racers Skalbania for and 23(B)(3). contract, breach of as a class action? interlocutory appeal requires us Did the 2. trial court its discretion abuse only question proprie consider by certifying Count III of amend- ty of the certification of the plaintiffs’ ed complaint, seeking damages parties agree class. All seem to against the Racers and Skalbania applied standard review to be whether is express implied breach of war- trial abused its discretion in ranties, as a class action? granting sup certification. The authorities Did the 3. trial court its discretion abuse port conclusion. State ex rel. Harris v. by certifying Count VI of amend- Court, (1982) Ind., Scott Circuit 437 N.E.2d ed complaint, claiming damages 952, (“[I]t is well 953 settled that Federal against the Racers and Skalbania vests the judge Rule 23 trial with wide negligent operation in his application discretion of the rule’s franchise, as a class action? guidelines.”); various Bowen v. Sonnen The WHA and join its constitutent teams burg, (1980) Ind.App., 411 390. N.E.2d Skalbania and the Racers in presenting considering When a trial court decision following issues: which the abuse of discretion is standard Did 4. the trial court its applicable, abuse discretion will not the evi reweigh
by certifying
I,
and VII
appeal
IV
of' dence. “On
where the
is
evidence
the amended complaint, seeking
conflicting
dam-
and an abuse of the trial court’s
ages from all
for common
alleged,
only
defendants
we shall consider
law
judg
fraud and
failure to
most
the evidence
favorable to the
disclose facts
the condition
all reasonable
to be
regarding
ment and
inferences
franchise,
as a
McMahan Construction
drawn therefrom.
Brothers, Inc.,
Wegehoft
(1976)
action?
170
Co. v.
to over-
plainly requires litigants
The rule
(b)
litiga-
of any
the extent and nature
based
presents
individual
son
already
concerning
controversy
assumption
tion
upon
plaintiffs’
individual
II of
against
respond
commenced
or
members
that Count
risk. Plaintiffs
class;
compen
only seeks
complaint
the amended
interest
thereon
satory damages and
(c)
desirability
undesirability
presents
case
of contract
that a mass breach
concentrating
litigation
a claim suitable
example of
a textbook
forum;
particular
claims in the
treatment.
class action
(d)
likely
the difficulties
to be encoun-
alleg-
complaint
amended
II of the
management
tered in the
of a class
Count
contract was
breach of
that
the Racers’
action.
es
plaintiffs
detrimental
the breach
Implied Warranty.”
in that
Rac-
(Appellant
their
season tickets worthless.”
at
that
respond
ers’ brief
Plaintiffs
“rendered]
pleading,
which was
the trial
ticket sold
that 40
every
represented
before
season
when
court
it
II
games
played
determined that Count was
would be
that
it is un-
—and
proper
certification,
a
candidate for .class
controverted that the Racers
survived
supports the
enough
play
conclusion reached. We fail to
long
see how it can be said that
II asks for
Count
The trial court had before it evidence
more than compensation for the amount
showing
every
plaintiffs’
that
member of
paid for the
previously
tickets. We have
a
purchased
Every
class had
season ticket.
held that differences in
the amount
was
for 40
purportedly good
ticket
covery will not bar class treatment
in a case
games
no ticket
to see
holder was able
which,
whole,
viewed as a
suitable for
more than 13. Thus the trial court had
an approach.
such
Boehne v. Camelot Vil- before it evidence of the breach of at least
lage Apartments,
Ind.App.
universally expressed warranty
one
—that
The Racers’ their there argument pre Accordingly, supportive that was evidence discretionary determination that position carious financial in the fall of early upon 1978 bestows them should action. proceed a defense based Count III as a class purchasers’ Summerlot, assumption supra. of risk See not does defeat Assuming class treatment. abuse ISSUE THREE —Did trial court trial argument court finds such an le by certifying VI of its discretion Count meritorious, gally flexibility, it has the un dam- complaint, claiming the amended der Rule to order trials on separate ages the Racers and Skalbania issue, particular as on question dam of the Racers if ages, necessary. Corp., (2d Green v. Wolf franchise, as a class action? Cir.1968) 406 F.2d 291. As said in trial not court did CONCLUSION —The Boehne, supra, “once the court is convinced by certifying abuse discretion Count VI its there plaintiff’s is substantial merit treatment. class action claim, and that the class action device is the The Racers recite evidence favorable to practicable vindicating method of these without position consideration claims, it will procedural not let difficulties supporting the trial exer- evidence court’s way.” stand its Id. 288 N.E.2d Assuming, cise of its discretion. as we deleted). (emphasis Count was properly II purpose interlocutory of this must for certified for class treatment. appeal, negligent operation TWO—Did the trial abuse its ISSUE vests in a cause of ac- franchise by certifying III of the tion, obviously question it common to complaint, seeking damages amended *7 One set of circum- plaintiffs. operative the Racers and Skalbania management stances —the warranties, of express breach and implied under inquiry the sole focus of team —is a class as action? presents example this a count. classic CONCLUSION —The trial did not nucleus fact” operative of “the common its by certifying abuse discretion Count III which touchstone of class certification is a for class action treatment. Dirrim, (1979) Ind.App., analysis. Arnold 426, 436. 398 N.E.2d regarding The Racers’ entire argument this issue is that: “Again questions arise as the trial court abuse its ISSUE FOUR—Did IV, representations I, to what by certifying or warranties were discretion Counts made, seeking what the quality hockey, complaint, constitutes VII of amended damages plaintiff damages what each Cf. from all defendants for common suffered. 26-1-2-313, to dis- Express negligent Ind.Code Section War- law fraud and failure by Affirmation, Promise, Descrip- regarding ranties close the condition facts franchise, and Sample; tion 26-1-2- as a class action? Ind.Code Section counts, the common law court did not As to fraud we trial CONCLUSION —The I, by certifying its abuse matter law com- say cannot that a a IY, for class action treatment. and YII plaint alleging group persons that a has by been the same acts of defend- defrauded join its constituent teams The WHA and maintained as a class action. ants cannot be the in this and suc- allowed such class Indiana has actions of this ceeding issues. Under the umbrella Boehne, to the trial challenges past. supra. issue we resolve the That the suitabil- for class treatment of court’s certification ity of a fraud case class treatment is an IV, I, and VII which portions of Counts essentially inquiry factual entrusted to the fraud, law failure to disclose allege common trial court is by discretion of the indicated Racers, financial poor condition discussing In T.R. commentators. proceeds, and fail- misuse of season ticket actions, 23(B)(3) Harvey Professor states: or prevent ure to correct find, required “The court is condi- of the Racers. The chal- reckless holding may tion of that a class action be IV which lenge portion to that subdivision, that maintained under this fiduciary is dealt alleges duty a breach of predo- common to the class Five, with as Issue infra. affecting indi- minate over in order to All defendants claim this vidual members. It is where fraud, plaintiff prove each member of can predominance exists that economies representa- questioned class must be class-action by be achieved means of the And, tions made to him defendants. view, perpetrated In this a fraud device. claim that individual determinations they persons by the use of similar on numerous necessary will be as to what constitutes may appealing be an misrepresentations upon any representa- reliance reasonable action, may a class and it situation for plaintiff to each member of the tions made need, liability if despite remain so respond by citing class. Plaintiffs authori- found, separate determination of that re- support proposition ties which within suffered individuals fraud, may liance be inferred in actions hand, although the class. On the other regarding presumption even when core, case a fraud having some common group made to a misrepresentations similar as a class for treatment may be unsuited alleging mis- persons. As to the counts material variation action if there was prevent failure to or proceeds, use of kinds negligent operation of the made or in the representations correct franchise, conspiracy, and failure to disclose persons degrees of reliance regarding facts assert addressed.” they whom were certified properly these claims at 349 Indiana Practice Harvey, 2 Wm. each involve a common nucle- because (1970). fact. operative us of cite constituent teams The WHA and its our sole Again emphasize decisions federal trial court plethora to a is to de interlocutory appeal function in rejected. certification was in which class of the trial court’s propriety termine enlightening precedent is Although federal the trial court order. Neither cases under the Indiana analyzing when any ques presented nor we have been our rule, Harris, reiterate that supra, we of the claims regarding tions merits allow us does not standard of review goes not to the presented. analysis Our *8 discretionary determination substitute our claim, any given of the success of likelihood facts court. That the that of the trial whether, time but rather to when it comes non-certifi- may supported of this case to make a determination of the merits as well as certification the class cation of claim, common of law and questions each point. this at solace to defendants of no predominate fact over affect court, is not to our function a trial Unlike T.R. ing plaintiffs. individual support- opposing and the factors Bowen, look at all 23(B)(3); supra.
360
certification,
ing class
law,
but rather to focus
accepted
Indiana,
This rule of
in
upon
there
whether
are
supporting
factors
Boehne, supra,
the
supports
trial court’s
the
litany
trial court’s action. The
of re-
certification of the common law fraud
ported federal
trial court decisions which
by providing
counts
class treatment
an
reach different results upon facts similar to
of inquiry
avenue
which does not focus
change
does not
the
fact that
trial
upon
the individual
of receipt of
court determination herein was within the
upon representations.
and reliance
As in
bounds of the law.
Boehne and
Vasquez, we
confronted
least,
At
very
the trial court had
allegation
with an
that defendants made
before it
supportive
evidence
of its discre-
some identical misrepresentations. Because
tionary determination which
showed
those identical misrepresentations may be
advertising
team
promoting the
dur-
proven,
because if that core of identical
ing
question
the season in
featured
it
misrepresentation
proven
provide
could
WHA logo, that
the WHA
the sanc-
was
sufficient evidence
support recovery,
to
tioning
for the
league
and that at
cannot reverse the trial court’s decision.
the time
being
the season ticket sales were
initial
Our
focus is
whether defend-
made the
was
organization
WHA
in
recklessly
knowingly
ants
or
made certain
which the Racers
compete.
were to
Evi-
misrepresentations. Thus,
identical
under
dence shows that season
advertising
this approach,
questions predomi-
common
and the tickets
represented
themselves
to
nate and class
was permissible.
purchasers
season ticket
that the tickets
23(B)(3); Arnold,
T.R.
supra.
were good for a full season
league
of WHA
if it is
that separate
Even
determined
competition. By inducing purchasers, on
members,
must be
inquiry
made of class
representations,
pay
basis of those
to
flexibility of T.R. 23
games
for a full
ensnares
defeats
which were not
be,
to
plaintiffs’
claim that
supports
evidence
an inference of
certification was error.
'
fraud.
In Brennan v. Midwestern United Life In
Co., (7th Cir.1971)
999,
surance
450 F.2d’
Superior
As
in Vasquez
observed
denied,
921,
957,
92
cert.
30
U.S.
S.Ct.
Court,
(1971)
800, Cal.Rptr.
4 Cal.3d
L.Ed.2d
a decision
the United
States
Boehne,
(cited
approval
not Bowen, success, abilities but rath- supra, Moreover, ‘absent’ class members. ade- er to the nature of evidence which so quate given notice must be that such claim, we con- support theory persons fully are informed the dis- by clude trial court did not err possible order and the conse- covery fiduciary this count. Whether a certifying their quences noncompliance with it. relationship exists between case requirements In this both were ob- The the issue us. defendants is not before served.” through relationship evidence which such a Id. at may represen- be will deal with established WHA, Skalbania, by tations made questions regarding misappropriation in and, teams possibly, constituent funds, pre- of season ticket the failure to Perhaps plaintiffs will not be the WHA. vent or reckless of the establish, factually legally, to able facts regard- Racers and failure to disclose fiduciary relationship predomi- exists. The precarious ing position the Racers’ will also however, still, nant question common by focusing be resolved on the conduct of defendants, ques- conduct a common presently postured, the defendants. As tion of fact. how predict appeal cannot these turn concern may claims out. Our is the upon by ease relied defendants resolved, will be by they method should fiduciary duty questions show that necessarily that method will consist of look- indi- not be treatment certified ing again to the conduct of defendants. So does, in flexibility cates that the of T.R. questions regarding factual common the de- fact, such actions. Moscarelli allow legal ques- conduct and common fendants’ Stamm, re- (E.D.N.Y.1968) F.Supp. supports tions as to whether that conduct misrepre- involving common fers cases legal predominate. relief The trial court tried may be separately sentations which properly exercised its discretion in cer- Even from issue of reliance. the individual these counts. tifying insistance correct in their if defendants are trial court abuse its ISSUE FIVE —Did the of re- there are individual IV certifying liance, try ability to those complaint, alleging amended a breach preponderance separately preserves defendants, fiduciary duty as a common issues. class action? separate We in the event such add that trial court acted with- CONCLUSION —The be- individual reliance inquiries regarding certifying in its discretion Count IV ques- necessary, the resolution come class treatment. fact, should, take tion as whether be de- this count should place, or whether argu- Defendants much of their address effi- upon “promoting focus “grave certified should regarding ment this issue doubts Friar judicial (WHA’s economy cient resources.” plaintiff’s theory.” about App. Holding (198.0) Corp., v. VanGuard Although some of their ply brief Econo- 698, 707. Div.2d 434 N.Y.S.2d points persuasive, defendants have di- uni- time, expense, mies of effort a non-existent rected efforts toward similarly persons formity decision goal. appeal are not in this We concerned *10 362
situated are the key to be con- elements The count regarding interference tortious Id. player sidered. The of the with flexibilities rule Racers contracts was not erro- provide the neously trial court certified for class treatment. with the tools it Again, considering without the claim on its procedural needs overcome difficulties. merits, Bowen, supra, we Boehne, observe that it supra; Wolf, supra. Thus we de- alleges, alia: inter cline reverse the of the certification fidu- ciary duty defendants, 2. That the individually claim. concert, conspired in acted and to act ISSUE SIX—Did the trial court abuse its tortiously so as to interfere the V, VII, certifying Counts rights of Racers and their season tick- IX, VIII and alleging tortious interfer- et in the holders services and contracts of contracts, ence with player Racers failure hockey including, players, Racers but prevent negligent way exclusion, not by Gretzky, Wayne franchise, Racers wrongful merger nego- Mio, Eddie and Peter Driscoll. tiations, punitive damages, as a class 3. That this only interference not se- action? verely compromised quality CONCLUSION —The trial court did not err played during the 1978- by certifying V, VII, VIII and IX season, but said also interference for class treatment. jeopardized greatly opera- the continued of, The tion the franchise. challenge to the allegation regarding tortious interference with player 4. That the ultimate disposition contracts is based on Long Strauss players by Island said the defendants was all Inc., Sports, 60 App.Div.2d accomplished benefit of de- 233, in N.Y.S.2d was de- fendants and to the detriment nied to a class of plaintiffs suing plaintiffs, because and that no funds re- the mid-season player. trade of a star ceived for services or contracts respond players, Plaintiffs which funds ulti- Strauss distin- would have guishable from been to the mately this case benefit of the season only because one traded, player was ticket holders. opposed to the disso- lution an entire again team. Defendants (B. 18). at record shows that Rac- raise defenses of “contributory negli- compensation ers received no whatsoever gence and (Racers’ incurred risk” brief at (R. for players the three named above at 25-26) individual questions purportedly 457) and that other WHA teams received removing prevent failure to negligent oper- premium (R. players question. ation of the Racers’ franchise the am- from allegations upon These focus com- bit of treatment. They also assail the fact, Arnold, mon of operative nucleus su- on claim its objection merits. Similar is pra, potentially involving all defendants. made to certification of the claim dam- Thus, allegations regarding before us ages wrongful merger negotiations. “trades” over- Defendants expressly appellate waive upon corporate tones of fraud the Racers view of the certification of the Count IX Given entities. the factual differences be- punitive demand damages.3 case Strauss, tween this where the page interpret 3. Footnote 1 at 37 in WHA’s brief We this to mean event that in the approve states: any forego- class certification of counts, ing challenge defendants waive their that, essentially alleges IX “Count as a result being IX certified Count for class treatment. alleged of the various sins them in do not IX in comment Count Complaint, other counts of the Amended generally, Shelby See Sav- brief. Federal punitive WHA Defendants are liable Doss, ings (1982) Ind.App., & Loan Ass’n. v. damages. light nature, In of its derivative N.E.2d separately IX will not be discussed here —it seems clear that if other claims alleged against inappropriate the WHA are certification, so is Count IX.” of fact that the each without one was claim of operate, team continued to *11 except ticket holder was identical player, we will not reverse the trial star paid the amount for the tickets and the to discretionary court’s determination that of the seats. location Count Y be certified class treatment. only argument identify
The we can involved representations under Count I, however, are pertaining portions They VII are not standardized. are allege prevent many and VII failure to and varied. written which Some include They some are oral. media adver- Racers franchise articles, tisements, newspaper radio talk wrongful merger negotiations, again raises, form, public speech at least one programs, in conclusory somewhat are personal They informal conversations. contributory defenses incurred risk and to sufficiently not of the nature or similar negligence. already as we Insofar create a permit presumption an inference or claim rejected considered and defendants’ the class relied that all members of destroy that these individual defenses com- representations and the same each of the to questions, again mon supra, we not degree. Similarly, again address them. decline consider claims on merits.
to
these
their
connection,
In this
I believe that reliance
Bowen, supra.
Boehne
my colleagues upon
v. Camelot
by
Ind.
Apartments (1st Dist.1972) 154
Village
1982,
15,
On November
William H. Stone
21,
771 and
v.
Vasquez
288 N.E.2d
App.
Jones,
to
and Tom
counsel
Joaquin County
Superior Court of San
petition
a
leave to
filed
796,
Cal.Rptr.
94
484
(1971) 4 Cal.3d
petition
withdraw
That
appearances.
a
is
Boehne involved
misplaced.
P.2d 964
the date
granted
opinion.
effective
of this
to
representation made
all members
single
ex
rel. Durham
Marion Circuit
State
complaint
Vasquez
the class.
involved a
505;
Court, (1959) 240 Ind.
162 N.E.2d
were
representations
alleging
the same
Ind.
Kelly
Reynolds,
v. Bank of
case,
In the
plaintiff.
to each
latter
App.
spect complaint to Count I of the non, existence, or of sub degree vel fraud. alleges law I otherwise common reliance individual season jective concur. some, any, purchasers respect misrepresentations apparent alleged from record various It hearing questions. for class certification common fact predominates conducted over respect each of the class certification that with I would reverse purposes, Tober v. Charni complaint, plaintiffs’ complaint. I of of the amended counts F.R.D. 74 at 82-85. ta, (M.D.Pa.1973) 58 common Inc. predominance claim to the sole
To the same effect are Gilbert v. Woods
Marketing, Inc. (D.Minn.1978) F.Supp. 749-50;
745 at (N.D.Ill. Seiden v. Nicholson
1976)
686;
(N.D.Miss.1975)
414-17;
F.R.D. 343 at Banks v. Travelers In (E.D.Pa.1973)
surance Co.
162-63. See White v. Corp. (S.D. Deltona
Fla.1975)
562;
Committee's Note to Federal Rule of Civil
Procedure
FORT WAYNE EDUCATION ASSOCIA-
TION, Appellant INC.
(Plaintiff Below), GOETZ, Appellees
Henrietta M. et al.
(Defendants Below).
No. 4-1281A218. Indiana, Appeals
Court
Fourth District.
Dec. 3, 1983.
Rehearing Denied Feb.