Miller v. Strange

440 N.E.2d 710, 34 U.C.C. Rep. Serv. (West) 1325, 1982 Ind. App. LEXIS 1436
CourtIndiana Court of Appeals
DecidedOctober 14, 1982
DocketNo. 4-1181A177
StatusPublished
Cited by1 cases

This text of 440 N.E.2d 710 (Miller v. Strange) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Strange, 440 N.E.2d 710, 34 U.C.C. Rep. Serv. (West) 1325, 1982 Ind. App. LEXIS 1436 (Ind. Ct. App. 1982).

Opinion

CONOVER, Judge.

Ward W. Miller, as bankruptcy trustee of Garden & Turf Supply Corporation (Trustee), appeals the trial court’s denial of his motion for summary judgment and its entry of summary judgment in favor of Kelly Strange d/b/a Midwest Liquidators, and Midwest Liquidators, Inc. (Auctioneer).

We affirm.

ISSUES1

1. Did the trial court err in finding the notice given to creditors was adequate to satisfy the requirements of the Indiana Bulk Transfer Act?

2. Did the trial court err in finding Auctioneer prepared and retained a schedule of property which satisfies the requirements of the Indiana Bulk Transfer Act?

3. Did the trial court err in finding Auctioneer had obtained a certified list of creditors as required by the Indiana Bulk Transfer Act?

4. Did the trial court err in concluding the products of discovery were insufficient to prove damages?

5. Did the trial court err in refusing to strike an affidavit which was not based upon personal knowledge?

6. Did the trial court err when it failed to consider the Trustee’s motion for summary judgment and Auctioneer’s motion for summary judgment separately?

7. Did the trial court fail to decide certain issues which had to be resolved before summary judgment could properly be entered in favor of Auctioneer?

8. Did the trial court enter inaccurate and incomplete findings of fact in granting summary judgment in favor of Auctioneer and in denying summary judgment in favor of the Trustee?

FACTS

Garden & Turf Supply Corporation, an Indiana corporation, is a wholesale lawn and garden distributor. Michael J. Doherty owns all issued and outstanding stock of the corporation. Doherty also serves as president, chairman of the board and chief operating officer.

The unaudited monthly balance sheets of the corporation indicate its insolvency after September, 1977. On April 21, 1978, the corporation, by Michael J. Doherty, and Auctioneer entered into a “Contract to Sell Merchandise and Equipment at Public Auction.” The auction was conducted on June [713]*71310 and June 14, 1978. The net proceeds from the auction were $101,943.55.

On September 12, 1978, an involuntary creditor’s petition was filed in the United States District Court, Northern District of Indiana, Fort Wayne Division, seeking an adjudication of the corporation as bankrupt. It was so adjudged on January 13, 1979. Ward W. Miller was then appointed trustee in bankruptcy of the corporation.

Miller, as Trustee, brought this suit alleging Auctioneer failed to comply with the requirements of the Indiana Bulk Transfer Act.2 After discovery, the Trustee moved for summary judgment. Auctioneer then filed a response which the trial court treated as a motion for summary judgment. The trial court denied Trustee’s motion and entered summary judgment in favor of Auctioneer.3 Trustee appeals.

DISCUSSION AND DECISION

I. STANDARD OF REVIEW

When reviewing the trial court’s entry of summary judgment, this court must determine whether there is any genuine issue of material fact and whether the law was applied correctly. Zalewski v. Simpson, (1982) Ind.App., 435 N.E.2d 74; Carroll v. Lordy, (1982) Ind.App., 431 N.E.2d 118. As stated in Podgorny v. Great Central Insurance Co., (1974) 160 Ind.App. 244, 311 N.E.2d 640:

The burden is on the proponent to establish that no genuine issue as to any material fact exists. Accordingly, for purposes of determining whether to grant the motion: (a) facts set forth by the opponents’ affidavits will be taken as true; (b) the depositions, admissions, etc. are to be liberally construed in favor of the opponent; and (c) any doubt as to the existence of a genuine issue as to a material fact must be resolved against the proponent of the motion. Finally, to help insure that real factual issues may not be evaded, supporting and opposing affidavits must be made on personal knowledge, must show affirmatively that the affiant is competent to testify to the matters covered, and must set forth facts as would be admissible in evidence. TR 56(E); .... Similarly, under the process of construction favoring the opponent of the motion, matters contained in depositions and answers to interrogatories are to be considered in the light of their capability of being admitted into evidence at a trial, (citations omitted)

Id. at 254-55, 311 N.E.2d at 648.

II. ADEQUACY OF NOTICE

Trustee argues the trial court erred when it entered summary judgment in favor of Auctioneer because it failed to give adequate notice of the auction to the bankrupt corporation’s creditors. He argues the notice was inadequate because it was incomplete, inaccurate and was not sent by the proper person. We disagree.

Article 6 of the Uniform Commercial Code4 governs bulk transfers. Auctions which amount to bulk transfers are governed by IC 26-1-6-107.5 IC 26-1-6-107 requires the auctioneer to send notice to the creditors of the transferor named on the list of creditors prepared by the transferor and to any creditor of the transferor known to the auctioneer. The key questions presented in this case are 1) what information must be included in the notice to creditors, and 2) who may actually send the notice.

In this case, the notice sent to creditors 6 read as follows:

1. Kelly Strange d/b/a Midwest Liquidators (Auctioneer) intends to sell at auction the materials, supplies, merchan[714]*714dise, equipment, inventory and all other personal property belonging to Garden & Turf Supply Corporation.
2. The name and address of Garden & Turf Supply Corporation as known to the Auctioneer is 201 Main Street, New Haven, Indiana 46774.
3. The name and address of the Auctioneer is Kelly Strange d/b/a Midwest Liquidators, 1453 East Washington Street, Indianapolis, Indiana.
4. The auction will be held beginning at 9:00 A.M. to 9:00 P.M. on June 10, 1978, June 13,1978, and June 14,1978, at the principal office of Garden & Turf Supply Corporation, 201 Main Street, New Haven, Indiana 46774, and continue until concluded.

The notice was dated May 26,1978, and was signed Kelly Strange d/b/a Midwest Liquidators with Michael J. Doherty’s initials under the signature.

Trustee argues this notice is insufficient because it should have contained all the information required of a non-auctioneer transferee as set out in IC 26-1-6-106. Auctioneer responds section 107 does not require all section 106 information be given by the auctioneer to the creditors. Section 107 merely states notice of the auction is required.7

What must be included in a Section 107 notice? To answer that question we must determine the purpose of such notice.

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Related

Matter of Garden & Turf Supply Corp.
440 N.E.2d 710 (Indiana Court of Appeals, 1982)

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Bluebook (online)
440 N.E.2d 710, 34 U.C.C. Rep. Serv. (West) 1325, 1982 Ind. App. LEXIS 1436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-strange-indctapp-1982.