Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Destination Yachts, Inc. v. Fine

Court of Appeals of Indiana

November 21, 2014

DESTINATION YACHTS, INC., and SHELDON GRABER, Appellants-Defendants,
v.
JIM R. FINE, Appellee-Plaintiff

APPEAL FROM THE DAVIESS CIRCUIT COURT. The Honorable Lynne E. Ellis, Special Judge. Cause No. 14C01-1305-SC-128.

ATTORNEY FOR APPELLANT: CLAY W. HAVILL, Evansville, Indiana.

MAY, Judge. VAIDIK, C.J., and FRIEDLANDER, J., concur.

OPINION

Page 612

MAY, Judge

Destination Yachts, Inc., (" Destination" ) and Sheldon Graber[1] appeal the entry of

Page 613

judgment in favor of Jim R. Fine. Although they raise two issues, we find one dispositive: Whether the trial court abused its discretion by denying Destination's and Graber's request for a continuance and entering judgment in favor of Fine because Destination was not represented by counsel. Finding the trial court abused its discretion, we reverse and remand for further proceedings.[2]

FACTS AND PROCEDURAL HISTORY

Fine purchased a houseboat from Destination. On May 23, 2013, Fine filed a small claims action in Daviess Circuit Court, against " Sheldon Graber -- President c/o Destination Yachts," (App. at 7), claiming " warranty work not completed -- my Destination Yacht was delivered Dec. 2006, within 15 months of delivery the roof develop blisters & delamination. Repeated requests by Sheldon to 'repair or replace' have not happened." ( Id.) Fine did not attach a Purchase Agreement or warranty document to the Statement of Claim.

The first hearing date was scheduled for June 25, 2013. Fine filed a motion for continuance, which was granted, and the first hearing date was reset for September 3. The seated trial judge recused himself, and Judge Lynn E. Ellis was appointed as special judge. Judge Ellis accepted the appointment as special judge on September 9, 2013.

On September 12, Fine filed an Amended Notice of Claim adding Destination as a defendant, and the court set a hearing on the Notice of Claim for November 18. On November 18, Fine appeared in person, and Graber appeared in person without counsel, on behalf of himself and Destination. At that hearing, the following colloquy took place:

THE COURT: . . . We have Small Claims Trial Rule 8(C)(3), corporate entities, limited liability companies, limited liability partnerships. All corporate entities, limited liability companies are [sic] companies and limited liability partnerships may appear by a designated full time employ [sic] of the corporate entity in the presentation or defense of claims arising out of the business if the claim does not exceed One Thousand Five Hundred Dollars ($1,500.00) However, claims exceeding One Thousand Five Hundred Dollars ($1,500.00) must be defended or presented by counsel.
MR. GRABER: Okay. I mean I'm playing dumb but how would I have known that before? . . . I just, I, I mean when I called my legal counsel I explained to him the situation, I explained to him the amount and he said Sheldon you just need to go present. He said there is no need for me to be there. And I would have, I am. We are where we are if that's . . . what do we do at this point?
COURT: Well, Mr. Fine, uh, it is my understanding you came in from out of town, is that correct?
FINE: Las Vegas, Nevada, Yes ma'am, about two thousand (2,000) miles.
COURT: Okay. I, I guess, Mr. Graber, are you disputing the claim?
GRABER: Yes ma'am.
COURT: Well, Mr. Fine; if you want to waive the requirement for legal counsel for him because you have come so far, although there is not a [sic] opportunity

Page 614

to do that in the Trial Rules, I would be willing to make an exception because of your travel. But if you don't wish to waive ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.