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08/31/87 ELLENSTEIN ENTERPRISES v. CONTINENTAL

Filed: August 31, 1987.

ELLENSTEIN ENTERPRISES, INC., APPELLANT (DEFENDANT AND CROSS-PLAINTIFF)
v.
CONTINENTAL BASKETBALL ASSOCIATION, APPELLEE (DEFENDANT AND CROSS-DEFENDANT) AND CLYDE BRADSHAW, CARLOS, CLARK, GREG JONES, KEVIN LODER, KENNY PERRY, DEWAYNE SCALES, APPELLEES (PLAINTIFFS)



APPEAL FROM THE VANDERBURGH CIRCUIT COURT, The Honorable William H. Miller, Judge, CAUSE NO. 637.

Robertson, J., Neal, J., And Sullivan, J., Concur.

Author: Robertson

ROBERTSON, J.

The plaintiff-appellees Bradshaw et al., collectively referred to as the "players" hereafter, filed their complaint for an injunction against the defendant-appellee Continental basketball Association (CBA) and the defendant-appellant Ellenstein Enterprises, Inc. (Ellenstein). Ellenstein was the owner of the Evansville Thunder franchise granted by the CBA. The players sought an injunction to allow them and the team to play in the CBA league playoffs. The CBA had attempted to terminate the franchise several days before the playoffs were scheduled to begin.

An attorney entered his appearance for the CBA and filed a motion to dismiss the complaint for an injunction. Among other things, CBA alleged lack of personal jurisdiction and subject matter jurisdiction. The motion was denied.

Ellenstein then filed an answer to the players' complaint and a cross-claim against the CBA. The answer and cross-claim were hand-delivered to CBA's attorney. The cross-claim stated statutory and common law claims against the CBA based upon the attempted termination of the franchise by the CBA and statutory and common law claims stemming from the original sale of the franchise by CBA to Ellenstein.

The issues raised by the players' complaint for an injunction were eventually resolved with the agreement of the parties and was subsequently dismissed. The cross-claim of Ellenstein was not a part of this dismissal and remained pending.

The CBA then filed a motion to dismiss Ellenstein's cross-claim. The motion for dismissal was based upon T.R. 12(B)(1) through (B)(6) including insufficiency of service of process.

After a hearing on the motion to dismiss the trial court ruled that the personal service on counsel of record of the cross-claim was not sufficient pursuant to T.R. 12(B)(4) and (5) and ordered the cross-claim dismissed.

Ellenstein states the sole issue as being:

Did the trial court err in granting [CBA's] motion to dismiss [Ellenstein's] cross-claim on the ground that personal service of the cross-claim upon counsel of record for [CBA] was insufficient and thus defective.

We reverse for the reasons stated below. It is Ellenstein's argument, and we agree, that the service, made pursuant to T.R. 5(B), is sufficient. That rule provides in pertinent part:

Service: How Made. Whenever a party is represented by an attorney of record, service shall be made upon such attorney . . . .

Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him ...


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