# Skalbania v. Simmons

> Indiana Court of Appeals · December 30, 1982 · 443 N.E.2d 352

URL: https://www.frixlaw.com/law-library/cases/9704075

## Case

- **Full name:** Nelson SKALBANIA and Indianapolis Racers 1977, Inc., Appellants (Defendants Below), and World Hockey Association, New England Whalers, Quebec Nordiques, Winnepeg Jets, Cincinnati Stingers, Edmonton Oilers, and Birmingham Bulls, Appellants (Defendants Below), and Indianapolis Racers, Indianapolis Racers Limited, Hockey Management Inc., and Hockey World, Ltd., Non-Appealing Defendants, v. Al SIMMONS, Keith Marshall and Michael Kelly, Appellees (Plaintiffs Below)
- **Court:** Indiana Court of Appeals
- **Decided:** December 30, 1982
- **Citations:** 443 N.E.2d 352; 1982 Ind. App. LEXIS 1542
- **Precedential status:** Published
- **Opinion:** Concurring in part by Sullivan
- **Judges:** Buchanan, Shields, Sullivan
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704075

## How later opinions describe it (automated extraction)

- holding that class action was properly certified where season ticketholders alleged that hockey team misrepresented its financial ability to finish the season in order to increase season- ticket sales, and then ceased operation after only 13 of 40 scheduled home games had been…
- affirming certification of season ticket-holder class where Indiana Racers did not finish season because of team’s business collapse

## Opinion text

SULLIVAN, Justice,
dissenting in part and concurring in part.
I dissent insofar as the majority opinion affirms certification of the class with respect to Count I of the complaint which alleges common law fraud. I otherwise concur.
It is apparent from the record of the hearing conducted for class certification purposes, that with respect to each of the counts of the amended complaint, plaintiffs’ sole claim to the predominance of common questions of fact was that the claim of each season ticket holder was identical except as to the amount paid for the tickets and the location of the seats.
The representations involved under Count I, however, are not standardized. They are many and varied. Some are written and some are oral. They include media advertisements, newspaper articles, radio talk programs, at least one public speech and informal personal conversations. They are not of the nature or sufficiently similar to permit an inference or create a presumption that all members of the class relied upon each of the representations and to the same degree.
In this connection, I believe that reliance by my colleagues upon Boehne v. Camelot Village Apartments (1st Dist.1972) 154 Ind. App. 21 , 288 N.E.2d 771 and Vasquez v. Superior Court of San Joaquin County (1971) 4 Cal.3d 800 , 94 Cal.Rptr. 796 , 484 P.2d 964 is misplaced. Boehne involved a single representation made to all members of the class. Vasquez involved a complaint alleging that the same representations were made to each plaintiff. In the latter case, the representations were standardized in that the appliance salesmen memorized a statement which was recited by rote to every member of the class. The two cases are clearly dissimilar from the case before us.
As noted by the majority in quoting from Professor Harvey’s commentary, fraud cases are unsuited for class action treatment if there is material variation in the kinds or degrees of reliance by members of the class. On the other hand, to contemplate separate and individualized mini-trials with respect to reliance is to emasculate the class action as to the common law fraud claim.
The existence, vel non, or degree of subjective reliance by individual season ticket purchasers with respect to any, some, or all of the various alleged misrepresentations predominates over common fact questions. I would reverse the class certification as to Count I of the complaint. Tober v. Charnita, Inc. (M.D.Pa.1973) 58 F.R.D. 74 at 82-85 . *364 To the same effect are Gilbert v. Woods Marketing, Inc. (D.Minn.1978) 454 F.Supp. 745 at 749-50 ; Seiden v. Nicholson (N.D.Ill. 1976) 69 F.R.D. 681 at 686 ; Gatzke v. Owen (N.D.Miss.1975) 69 F.R.D. 412 at 414-17 ; Seligson v. Plum Tree, Inc. (E.D.Pa.1973) 61 F.R.D. 343 at 345 ; Banks v. Travelers Insurance Co. (E.D.Pa.1973) 60 F.R.D. 158 at 162-63 . See White v. Deltona Corp. (S.D. Fla.1975) 66 F.R.D. 560 at 562 ; Advisory Committee's Note to Federal Rule of Civil Procedure 23, 39 F.R.D. 98 at 103.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704075. Public record. Not legal advice.