Patrick A. Shoulders
Dean E. Richards
Robert L. Burkart
ATTORNEY FOR APPELLEES
Patrick A. Shoulders
Dean E. Richards
RALPH KIRCHOFF and )
WILMA KIRCHOFF, )
Appellants (Defendants/ )
Counterclaimants Below), )
v. ) Supreme Court
) Cause No. 26S01-9812-CV-760
JEFF W. SELBY and )
DIANE L. SELBY, )
) Indiana Court of Appeals
Appellees (Plaintiffs/ ) Cause No. 26A01-9601-CV-34
Counterdefendants Below). )
authorized shares of the holding company for a total of $1,000 or 77¢ per share. Over the
next year the holding company sold additional shares of its own newly issued stock for
$2,300 each, and also exchanged some of its newly issued shares for Bank shares on a one
for one basis.See footnote
The holding company also borrowed $2,570,000 from Summit Bank.
Ultimately, the cash raised in these transactions was used to acquire all 2,000 shares of the
Bank's stock at $2,300 each.
At the end of these transactions, some of which are described in more detail later, the holding company had shareholders in five groups:
(1) Van Eaton, who acquired 65% of the equity for $1,000;
(2) former shareholders of the Bank who received cash for part of their Bank shares and also exchanged some Bank shares for holding company shares on a one to one basis;
(3) one Bank shareholder who exchanged all of his 1.25% of the Bank for 1.25% of the holding company;
(4) one Bank shareholder who exchanged all of his 1.25% of Bank shares for holding company shares and also purchased an additional 3% of the holding company for $138,000 cash; and
(5) Jeff and Diane Selby (the Selbys), who furnished cash (all of it borrowed from
either the Bank or the Kirchoffs) in the amount of $494,500 for 10.75% of the holding
Category (2) included the Kirchoffs who had owned 49.5% of the Bank and ended up with 13.75% of the holding company, $1,749,391 in cash and $630,000 in notes. All of those who exchanged shares received the same number of shares and percentage ownership in the holding company as they had held in the Bank, but their interests were now junior to the $2,570,000 debt to Summit Bank.
The Selbys acquired 215 of the 700 shares the holding company sold, but the route they took to that result is disputed. For reasons explained below, the parties contend that important legal results depend on whether the Selbys bought securities from the Kirchoffs or from the holding company. As also explained in more detail later, the paper trail is ambiguous on this issue as well as many others. There are plainly notes from the Selbys to the Kirchoffs for $244,000 and to the Bank for $250,000. The Kirchoffs contend that the Selbys purchased 215 newly issued shares (10.75%) of the holding company, and never bought shares from the Kirchoffs. Under this version, (1) the Selbys borrowed $250,000 from the Bank, (2) the Selbys borrowed $244,500 from the Kirchoffs, (3) the Selbys paid the total of $494,500 to the holding company to purchase their holding company shares and (4) the Selbys pledged the resulting 215 shares of the holding company to the Kirchoffs as security for the $244,500 note.
The Selbys maintain that they purchased 215 shares of the Bank directly from the Kirchoffs and later exchanged the Bank shares for shares in the holding company. They
contend that the $244,500 note to the Kirchoffs and the loan proceeds of their $250,000 note
to the Bank were the payment of the purchase price of Bank stock from the Kirchoffs. In
support of this view the Selbys point to a Stock Exchange and Subscription Agreement,
of which more later. It is sufficient at this point to note that there is no document that
directly supports a transfer of shares from the Kirchoffs to the Selbys.
The Kirchoffs are also unable to point to any document that conclusively supports their view that the Selbys purchased holding company shares in a Kirchoff-free transaction. They assert inferential support in the fact that the Bank's stock transfer ledger contained no record that any shares of the Bank were ever owned by the Selbys. The Kirchoffs also assert that the checks written by the Bank and the Kirchoffs evidence the proceeds of the loans to the Selbys and were endorsed by the Selbys to the holding company and deposited in its account at Summit bank. Some but not all of these checks are in the record.
However the parties arrived at that point, by November 1988, the holding company had obtained all of the 1,008 shares of Bank stock not owned by the Kirchoffs. The Kirchoffs' 992 shares of Bank stock were then transferred to the holding company and the holding company surrendered all of the certificates for Bank shares in exchange for a single certificate registered in the holding company's name for all 2,000 shares. This was then pledged as security for the holding company's loan from Summit Bank. At the same time, the Kirchoffs lent $630,000 to the holding company to finance its acquisition of Bank shares.
Operations under Van Eaton
In December 1988, Van Eaton replaced Ralph Kirchoff as Chairman of the Board of
the Bank. Van Eaton operated the Bank, at times with Kirchoff's help, until the Bank was
seized by the Indiana Department of Financial Institutions (DFI) on November 19, 1991
and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver. In 1993,
the FDIC initiated three administrative enforcement actions against Van Eaton, individually
and as the Bank's officer and director. These alleged unsafe and unsound banking practices,
breaches of fiduciary duty, excessive salary and bonus payments without board approval and
willful disregard for the Bank's safety and soundness. These proceedings were ultimately
settled by consent decrees that, inter alia, prohibited Van Eaton from further participation
in the affairs of a financial institution.
After the DFI seized the Bank, the Selbys sued the Kirchoffs. The Selbys' complaints asserted common law claims for fraud and breach of fiduciary duty and a claim for deception under Indiana Code § 35-43-5-3. Ultimately claims under the Indiana Securities Act were added, albeit in a rather oblique manner described in Part II.G. The Kirchoffs counterclaimed for the Selbys' default on the $244,500 promissory note. After a two week trial, the jury returned a verdict in favor of the Selbys for $730,000 and against the Kirchoffs on their counterclaim on the note.
Post Trial Developments
Shortly after trial, Donna Fink, a paralegal employed by the Selbys' attorney, Dean Richards, contacted Bruce Kirchoff, the Kirchoffs' son and an attorney. Fink met with Bruce Kirchoff and told him that she had assisted Richards in altering documents introduced
into evidence at the trial. Specifically, Fink stated that she assisted Richards, Jeff Selby and
Van Eaton in altering the Stock Exchange and Subscription Agreement by using whiteout
to cover portions of the document, photocopying it, and tracing signatures onto the
manufactured document. Fink also stated that shortly after a copy of the Bank Prospectus
was admitted at trial as Exhibit 10, she had witnessed the Selbys and their attorney alter it
in several critical respects, including removing some unspecified pages. The altered
document was then offered and admitted at trial as Exhibit 12 to support the theory that
Ralph Kirchoff failed to disclose the Bank's troubled loans. Fink also said she was present
when the Selbys, Richards and Van Eaton rehearsed false testimony.
In the meantime, the Selbys, in what may have been an attempted preemptive strike, filed a post trial motion for sanctions, requesting that a disciplinary action be initiated, and for assessment of damages and attorney fees against Ralph Kirchoff and his attorney, alleging that they had improperly communicated with the trial judge and had filed affidavits and documents prior to trial that Ralph Kirchoff admitted at trial were incorrect.
Based on the claim of altered evidence, the Kirchoffs filed a motion to correct error and requested a new trial. In the alternative, they moved for judgment on the evidence on the grounds that the Selbys failed to prove several elements of a claim under the Indiana Act, including privity between purchaser and seller, a purchase of the stock for value and the existence of a legal loss. The trial court heard evidence on October 30 and 31, 1995 on the Selbys' motion for sanctions and the Kirchoffs' motions to correct error and for judgment on the evidence. The court denied the Kirchoffs' motion for judgment on the evidence,
granted the Kirchoffs' motion to correct error, set aside the jury verdict and ordered a new
trial. The court also granted the Kirchoffs' motion to dismiss the Selbys' request for
The Kirchoffs appealed the trial court's denial of their motion for judgment on the evidence. The Selbys cross appealed, asserting that the trial court erred by setting aside the jury verdict, granting the Kirchoffs' motion for a new trial and dismissing their request for disciplinary action against Ralph Kirchoff and his attorney.
The Court of Appeals held that:
(1) the trial court did not err in setting aside the jury verdict and granting a new trial based on newly discovered evidence;
(2) Indiana's Act requires that a plaintiff purchaser such as the Selbys show either privity with the seller or that the Kirchoffs solicited the purchase by the Selbys to serve their own or the Bank's financial interest;
(3) value was given for stock;
(4) the Selbys suffered a legally cognizable loss;
(5) the pledge of the holding company stock to the Kirchoffs satisfied the tender requirements of a claim under § 19(a) of the Indiana Act; and
(6) the trial court properly dismissed the Selbys' motion for sanctions.
Kirchoff v. Selby, 686 N.E.2d 121 (Ind. Ct. App. 1997). In deciding that Indiana law requires either privity or a successful solicitation with a financial motive, the Court of
Appeals held that liability under § 19 of Indiana's Act is coextensive with liability under §
12 of the Securities Act of 1933 as fleshed out by the Supreme Court's decision in Pinter v.
Dahl, 486 U.S. 622, 108 S. Ct. 2063, 100 L. Ed. 2d 658 (1988). We grant transfer because
we conclude that certain aspects of the Court of Appeals' opinion as to the Indiana Act
credibility of the witnesses who testified to their authenticity or lack thereof. We agree that an examination of some of the documents in this record raises a number of questions of both form and substance. Indeed some of these documents are incomprehensible. The Stock Exchange and Subscription Agreement described above purports to be a subscription to Bank shares. A subscription agreement is usually understood to relate to an undertaking to buy newly issued shares from the corporation. Yet this document is dated at a time when, according to the record, the Bank had no authorized but unissued shares. The Selbys do not explain whether these were to be newly issued Bank shares, or, if this document was truly a subscription, how it relates to shares already issued to the Kirchoffs. The document is signed by the Selbys and by Van Eaton as Chairman of the holding company but not by the Kirchoffs or anyone purporting to be an officer of the Bank. If it is an erroneously titled agreement to subscribe to holding company stock, which would make more sense in some respects, we are given no explanation of how it supports the proposition that the Kirchoffs, who are not signatories, bought or sold anything pursuant to it. This Subscription Agreement includes some of the representations typically found in documents intended to qualify the subscribers as accredited investors to exempt the transaction from the registration requirements (but not the antifraud provisions) of both the Securities Act of 1933See footnote 2 and the Indiana Act. The second page, in a font that appears somewhat different from that on the first page, contains an apparent agreement by the Selbys to exchange Bank shares for holding
company shares at such time as the Bank pays $250,000 to the Kirchoffs, who are not parties
to the document. Although it apparently contemplates that funds will flow from the holding
company to the Kirchoffs it does not on its face obligate the Kirchoffs to do anything.
What to make of all of this is best left to the trier of fact who is in a position to judge the veracity of witnesses. It is impossible to reach a conclusion with any confidence based on the paper record before this Court. Accordingly, we leave it to the trial court to sort this out and summarily affirm the Court of Appeals' decision to affirm the trial court's denial of the motion for judgment on the evidence.
C. A New Trial was Properly Ordered
We summarily affirm the holding of the Court of Appeals that the trial court's grant of a new trial was well within its discretion. Ind. Appellate Rule 11(B)(3).
§ 12 of the Act. That section states:
It is unlawful for any person in connection with the offer, sale or purchase of any security, either directly or indirectly, (1) to employ any device, scheme or artifice to defraud, or (2) to make any untrue statements of a material fact or to omit to state a material fact necessary . . . or (3) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.
Ind. Code § 23-2-1-12 (1998). Although § 12 defines the conduct constituting a violation,
it does not expressly create a private right of action.See footnote
A. Privity under § 19(a)
The civil liability provision of the Uniform Act adopted in 1961 is now found in § 19 of the Indiana Act. For purposes of this case, it is essentially the same today as the version enacted in 1961. Subsection 19(a) imposes liability, subject to certain defenses, on a person who offers or sells a security in violation of the Act. The seller or offeror is liable to any other party to the transaction. Transaction is a defined term. It in turn includes purchase, also a defined term, which includes the direct or indirect acquisition of a security. Id. §§ 23-2-1-1(3)-(4). As a result of these nested definitions, § 19(a), when read literally in conjunction with the definitions in § 1 suggests that a seller may be liable to someone other than the person to whom title is passed. For example, reading acquisition literally, one who sells securities to a holding company could be viewed as liable to a purchaser of holding company shares as one who indirectly acquired the security.
However, the remedy provided by § 19(a) requires that the successful claimant either
rescind the transaction or recover the consideration paid or recover damages if the
security is no longer owned. Each of these seems rather plainly to contemplate that a seller
or offeror is liable only to a person who acquired the same security that was offered or sold.
Accordingly we agree with the Court of Appeals that § 19(a) requires either privity between
the seller and purchaser, or that the person charged have offered the security to the
purchaser. We also agree with the Court of Appeals that the legislature did not intend for
a remote purchaser of securities to have a cause of action against any seller within the chain
of title, i.e. if A sells to B who resells to C, as a general proposition, C's recovery is against
B, not A. Kirchoff v. Selby, 686 N.E.2d 121, 129 (Ind. Ct. App. 1997). This is not the end
of the story, however.
B. Potential Liability under other Subsections of § 19
Section 19 is based on § 410 of the Uniform Act, which in turn is based on § 12 of the Securities Act of 1933. Based on this genealogy of § 19(a), the Court of Appeals concluded that civil liability under the Indiana Act was essentially the same as under § 12 as explained in Pinter v. Dahl. 486 U.S. 622, 108 S. Ct. 2063, 100 L. Ed. 2d 658 (1988). In that case, the U.S. Supreme Court construed seller under § 12(1) of the Securities Act of 1933 (which creates liability for unregistered sales) to impose liability only on offerors or sellers who pass title or successfully solicit a purchase and are motivated at least in part by a desire to serve [one's] own financial interests. Id. at 647. The same term presumably has the same meaning under § 12(2), the antifraud provision that is the legislative parent of Indiana's § 19(a). There are, however, important differences between the language of
Indiana's § 19 and federal § 12 that clearly anticipate somewhat different liability under the
two statutes. Section 12 deals only with remedies against those who sell or offer. In addition
to § 19(a), Indiana's § 19 includes three subsections not found in the federal statute.
Subsection 19(b) gives those who sell securities similar remedies against purchasers who
violate the Act and § 19(c) deals with remedies against investment advisors. Finally, and
significantly for this case, § 19(d) imposes liability for violations of the Act on several other
categories of potential defendants.
1. Potential Liability under § 19(d)
Section 19(d) provides:
A person who directly or indirectly controls a person liable under subsection (a), (b), or (c), a partner, officer, or director of the person, a person occupying a similar status or performing similar functions, an employee of a person who materially aids in the conduct creating liability, and a broker-dealer or agent who materially aids in the conduct are also liable jointly and severally . . . .
Ind. Code § 23-2-1-19(d) (1998).
This provision imposes derivative liability on five groups. Some of these have exact parallels to, or are substantially similar to, provisions in the federal securities laws, but some are quite different from the federal statute. The five are:
(1) each person who directly or indirectly controls a person liable under subsection (a), (b), or (c);
(2) each partner, officer, or director of the person;
(3) each person occupying a similar status or performing similar functions;
(4) each employee of a person who materially aids in the conduct creating liability;
(5) each broker-dealer or agent who materially aids in the conduct.
Id. § 23-2-1-19(d); see also Paul J. Galanti, Business Associations, 14 Ind. L. Rev. 91 (1981). 2. Officers, Directors, Partners and Controlling Persons
As the Court of Appeals held in Arnold v. Dirrim, 398 N.E.2d 428 (Ind. Ct. App. 1979), only the fourth and fifth categories require personal participation in the transaction. The statute does not require a partner, officer, director or controlling person to materially aid a violation to be liable.
[I]t seems apparent that this statutory provision imposes absolute liability upon the director of a corporation to purchasers of securities sold in violation of the Securities Act based on his position as a director unless he proves the statutory defense. It should be observed that the clause in question [materially aids] obviously relates only to employees of the seller, broker-dealers or agents.
Id. at 433-34. Other jurisdictions have construed statutes identical to Indiana Code § 23-2-1- 19(d) in a similar fashion. See Moerman v. Zipco, Inc., 302 F. Supp. 439 (E.D.N.Y. 1969), aff'd 422 F.2d 871 (2d Cir. 1970) (employee must materially aid the sale to be liable but there are no restrictions on the liability of a partner, officer or director); Foelker v. Kwake, 568 P.2d 1369 (Or. 1977) (personal participation not necessary to impose liability on officer of corporation); Mitchell v. Beard, 513 S.W.2d 905 (Ark. 1974) (an employee, broker or agent must materially aid in the sale before becoming liable, but that requirement is not applicable to a partner); Rzepka v. Farm Estates, Inc., 269 N.W.2d 270 (Mich. Ct. App. 1978) (directors and officers liable where they did not establish statutory defense of lack of knowledge).
representation to be an agent, factual issues such as whether the attorney's conduct at a
meeting with potential investors made it more likely than not that the investors would
purchase securities precluded summary judgment in favor of the attorney. Id.
4. Conduct that Materially Aids a Violation
This Court has not addressed what conduct amounts to material aid under the Indiana Act. By 1994 the federal courts had developed a very substantial body of law dealing with the liability of those who aid or abet a violation of the federal securities laws.See footnote 5 However, in that year the Supreme Court made clear that neither the Securities Act of 1933, 15 U.S.C. § 77l (1994 & Supp. II 1996), nor the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1994 & Supp. II 1996), nor Rule 10(b)-5, 17 C.F.R. § 240.10b-5 (1998), supports a claim against aiders and abettors. In Central Bank v. First Interstate Bank, 511 U.S. 164, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994), the Court concluded that the text of section 10(b) of the Securities Exchange Act did not reach those who aid and abet a 10(b) violation and held that a private plaintiff may not maintain an aiding and abetting suit under § 10(b).
It is inconsistent with settled methodology in 10(b) cases to extend liability beyond the scope of the conduct prohibited by the statutory text. To be sure, aiding and abetting a wrongdoer ought to be actionable in certain instances. The issue, however, is not whether imposing civil liability on aiders and abettors is good policy but whether aiding and abetting is covered by the statute.
who are not sellers to the plaintiff purchaser.
C. Participation in a Transaction is not a Freestanding Basis for Liability
The Court of Appeals expressed the view that the term indirect as it appears in the definition of purchase refers to potential defendants who indirectly sell securities by participating in or soliciting their sale. Kirchoff, 686 N.E.2d at 129. The inclusion of direct or indirect in the definition of purchase does not appear in the Uniform Act and seems to be unique to Indiana's Act.See footnote 8 Indiana and other states also refer to controlling persons as those in direct or indirect control of a person liable. The same phrase originated in federal law as it related to direct or indirect use of the mails, a jurisdictional requirement that is irrelevant in state securities laws.
We do not believe direct or indirect in the definition of purchase relates to participation in the sale. Participation in a transaction is to some extent a term of art in securities laws. It was at one time used to describe the class of liable persons under Indiana's Act. [T]he person making such sale or contract for sale and every officer, director or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable. Burns Ind. Stat. Ann. § 25-847 (1960
Replacement). In some states the counterpart of § 19(d) includes those who participate.
See Or. Rev. Stat. § 59.115(3) (1995) (every person who participates or materially aids in
the sale is also liable). This difference has been the basis of significantly different scope of
liability of peripheral players. Compare Prince v. Brydon, 764 P.2d 1370 (Or. 1988)
(attorney who prepared documents may be liable under statute imposing liability on those
who participate or materially aid in a sale) with Agapitos v. PCM Investment Co., 809 F.
Supp. 939 (M.D. Ga. 1992) (attorneys who prepare documents, without more, are not agents
who materially aid a sale). However, participate was removed from the predecessor of §
19 in 1961 when the Uniform Act was adopted in Indiana. At the same time, what is now
found at § 19(d) was added, and covers this ground with more precision.
Section 19 in its current version contains a rather detailed iteration of categories of persons liable and the different degrees of involvement required of them. Participant or participate is not among either. As a result, we conclude that participation becomes relevant to these categories only to the extent that it is relevant to establishing that one fits into the categories. Thus if one's participation amounts to selling or offering under § 19(a), or to materially aiding under § 19(d), it is relevant. But participation adds nothing to these statutory categories. Otherwise stated, Indiana's omission of participation leaves free from statutory liability under § 19 peripheral players such as attorneys or accountants, unless they offer or sell, or fit one of the other categories. We conclude that participation as it is sometimes broadly construed is insufficient to impose liability under Indiana's Act.
does not hinge on compliance with corporate law requirements. A security is not only the
stock or the certificate that evidences it. Rather, a right to subscribe to or purchase any of
the listed items such as stock or bonds is itself a security by reason of the definition in the
Act. Ind. Code § 23-2-1-1(k) (1998). Thus, although plainly relevant, neither the name
given to the document nor the absence of the corporate documentation of the issuance or
transfer of shares is conclusive as to whether a security was purchased for value and if so by
whom from whom.
F. Legal Loss
The Court of Appeals held that the Selbys may have suffered a legal loss in the form of a decrease in the sale of their holding company stock as a result of the misrepresentations with regard to the Bank. If the Bank's financial condition was misrepresented within the meaning of the Indiana Act as of the time of the sale, the statute gives the buyer of the security (whether Bank or holding company shares) the right to recover the purchase price from the persons liable. Legal loss is not an element of the claim. Moreover, the holding company was apparently capitalized by, in effect, funding the 65% dilution created by Van Eaton's stock with debt to Summit Bank and a resulting subordination of the equity position of the existing shareholders. We cannot say as a matter of law that this in itself could not constitute a sizeable loss to exchanging or purchasing shareholders.
Finally, we are told that the holding company, according to its books, operated successfully for two years before seizure. If true, this is relevant, but not conclusive as to whether the shares were of equal value at the time of the exchange. Whether the losses
resulting in the seizure were the product of accounting practices or operating procedures that
predated the exchange but were discovered only later is a fact issue as well.
G. Liability in this Case
Information material to an evaluation of the Bank was also plainly material to investors in the holding company, which was expected to have no assets other than the Bank. Unresolved questions of fact as to the accuracy of the information in the Bank prospectus, and the role of the Kirchoffs in these events preclude reaching a determination on these issues by this Court. As the parties and the Court of Appeals concluded, if the Kirchoffs sold to the Selbys they may be liable under § 19 as sellers if a violation of § 12 is established. However, the Kirchoffs (or Ralph Kirchoff) may also be liable under § 19(c) or § 19(d) whether or not either or both of them is a seller or offeror with § 19(a) exposure. This will turn on whether either or both is found to be in one or more of the statutory categories with respect to the issuer (whether it is the Bank or the holding company), and if an agent, whether material aid was furnished to a violation. The Kirchoffs apparently financed the Selbys' purchase of Bank shares or holding company shares. Whether this or other contact with the Selbys or other activity in connection with these transactions constituted representation of an issuer in effecting or attempting to effect purchases or sales of securities on behalf of the holding company is an issue for trial. Similarly, what if any role either Kirchoff had in any actual offer or solicitation is unclear.
As the Court of Appeals noted, if the Kirchoffs have liability as a result of the Selbys' transactions with the holding company, either a derivative action or an action under the close
corporation doctrine of Barth v. Barth, 659 N.E.2d 559 (Ind. 1995), is procedurally possible.
See Kirchoff, 686 N.E.2d at 130 & n.10. Whether there was any such transaction and
whether the facts support any such claim is for the trial court to conclude.
Finally, we are unclear whether all or any of these theories other than liability as sellers of Bank shares should be available to the Selbys on retrial. The Kirchoffs' arguments proceed on the assumption that the Selbys rely solely on § 19(a). Perhaps that is a fair inference, but we leave it to the trial court to determine the extent to which liability under § 19(d) or the assertion of any other theory should be permitted on retrial.
The Selbys moved for leave to file a Second Amended Complaint on July 19, 1993. In the supporting memorandum, they specified that the amendment would add I.C. 23-2-1- 12, I.C. 23-2-1-12.1, I.C. 23-2-1-14 and I.C. 23-2-1-19. These are the antifraud and civil liability sections already discussed and the sections dealing with fraud by investment advisors and prohibiting misleading statements about a registered offering. Subsequently, the Chronological Case Summary recites that the trial court ordered that the plaintiff is to file within five days a full, non-interlineated complaint. On September 8, 1993 a Second Amended Complaint was filed, but it, like its predecessors, contains no reference to a securities law claim. There is no further amendment to the pleadings apparent from the record. The Kirchoffs observe in their brief that no securities law claim was ever pleaded. However, we take it from the foregoing and from the instructions discussed below, that either by reason of the motion quoted above or by reason of Trial Rule 15(B), some form of securities law claim was injected into this case.
this rule because it neither discusses the facts relevant to the issues presented for review nor presents the facts in an objective and nonargumentative manner. As the Court of Appeals in this case noted the Selbys' brief is filled with improper, anecdotal facts which are not part of the record and have no bearing on this appeal. Kirchoff v. Selby, 686 N.E.2d 121, 125 n.3 (Ind. Ct. App. 1997). Indeed, as the Kirchoffs point out, the Selbys' rendition of the facts contains several facts directly contradicted by the record.See footnote 9 It contains many other flat declarative statements that are at best an advocate's characterization at odds with the physical evidence without acknowledging or explaining the apparent inconsistency.See footnote 10 In sum, the Selbys' brief fails to present the objective facts of the case, including appropriate citations to the record that are required to facilitate appellate review.
expected to agree on one record with whatever is necessary to support the contentions of all
parties. The appellate rules outline the proper procedures if a difference as to the record
arises on appeal. Ind. Appellate Rule 7.2(C). In this respect as in the others noted, these
appear to have been disregarded.
purchase or sale of securities. Id.
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