BUSH v. WINKER - November 20, 1995.

SCHOOL DIST. NO.... BUSH v. WINKER... View Case Cited Cases Citing Cases Comment (0) | Follow Leagle on Twitter |

BUSH v. WINKER 907 P.2d 79 (1995) Charles BUSH, Cliff Schroeder, James Yeros, Dennis Fish, Moreno Giannasi, Patricia Giannasi, and I. Leroy Likes, Petitioners,v.Kent WINKER, Respondent. No. 94SC363. Supreme Court of Colorado, En Banc. November 20, 1995. Rehearing Denied December 11, 1995. Bader & Villanueva, P.C., Gerald L. Bader, Jr., Randolph S. Dement, Denver, for Petitioners Charles Bush, James Yeros, Dennis Fish, Moreno Giannasi, Patricia Giannasi, and I. Leroy Likes. Clifton P. Schroeder, P.C., Clifton P. Schroeder, Denver, for Petitioner Cliff Schroeder. Robinson, Waters, O'Dorisio and Rapson, P.C., Peter A. Robinson, Martha J. Bohling, Denver, for Respondent.

Chief Justice VOLLACK delivered the Opinion of the Court. We granted certiorari to review the decision by the court of appeals in Bush v. Winker,892 P.2d 328 (Colo.App.1994), as modified on denial of reh'g (May 19, 1994), reversing the default judgment entered by the trial court in favor of the petitioners, Charles Bush, Cliff Schroeder, James Yeros, Dennis Fish, Moreno Giannasi, Patricia Giannasi, and I. Leroy Likes, and against the respondent, Kent Winker. We affirm the decision of the court of appeals. I. The petitioners brought an action against numerous individuals, partnerships, and corporations to recover losses they incurred after investing in a limited partnership. The defendants included the general partnerships of Wins-Quince, Mid-America Resources (MAR), and C & I Partnership (C & I). Kent Winker was named as a defendant, both individually and as a general partner of Wins-Quince and G & W Partnership (G & W). G & W was designated as a general partner of MAR, and MAR

also was named as a defendant. The case proceeded to trial on several individual claims1 asserted by the petitioners against Winker, and a jury verdict was entered against him in the amount of $23,750 for aiding and abetting a breach of fiduciary duty. Winker did not appeal this verdict. Before the trial, the petitioners had filed a motion for default judgment against C & I, Wins-Quince, and MAR based on those partnerships' failure to file answers to the complaint. After the trial, the petitioners amended the motion, requesting that joint and several judgment be entered against the partnerships, and against Winker individually. The amended motion also requested that petitioners be able to execute against Winker's non-partnership assets for the judgments against the partnerships if the petitioners were unable to obtain satisfaction from the partnerships. The trial court held an evidentiary hearing on these motions on October 23, 1991. Winker appeared at this hearing through counsel, who objected to the entry of a default judgment against the separate property of Winker. Pursuant to this hearing, the trial court entered joint and several judgment on June 10, 1992, against C & I, Wins-Quince, and MAR in the amount of $453,497.54. The court further ordered that the judgment be enforceable against the separate property of Winker, including G & W assets, upon a showing that the assets of C & I, Wins-Quince and MAR did not satisfy the judgment.2 [ 907 P.2d 81 ] In a separate order, the trial judge held that Winker was a general partner in MAR and G & W and also held that G & W was a partner in C & I and Wins-Quince. The court then concluded that because Winker was served with a copy of the summons and the complaint, Wins-Quince, C & I, and MAR were also properly served. The court also held that G & W was a named party in the suit because the caption of the complaint stated that Winker was being sued as a partner in G & W.

<<Prev 1 Next>>

10

Footnotes 1. The complaint alleged several causes of action against Winker: securities fraud violations, common law fraud, breach of fiduciary duty, fraud for failure to disclose, conversion, and civil conspiracy. Back to Reference 2. The order states in pertinent part: (1) Default judgment is

hereby entered in favor of Plaintiffs Charles Bush, Cliff Schroeder, James Yeros, Dennis Fish, Moreno Giannasi, Patricia L. Giannasi and I. Leroy Likes and against Defendants Mid-America Resources, Wins-Quince, and C & I Partnership, jointly and severally........(3) That Plaintiffs' judgment shall be enforceable against the separate, individual property of Defendant M. Kent Winker upon showing partnership assets do not satisfy the judgment. Back to Reference 3. The order states in pertinent part: Upon Plaintiffs' Renewed Motion For Order Directing Clerk To Enter Judgment Against M. Kent Winker and Showing Regarding Partnership Judgment, the Court hereby directs that the following judgment shall enter:1. Name of party in whose favor judgment is granted: Charles Bush2. Name of Party against whom judgment is entered: M. Kent Winker.... (The same language is contained in each plaintiff's judgment against Winker). Back to Reference 4. Section 13-50-105, 6A C.R.S. (1987), provides that "the separate property of any individual member thereof who is named as a party individually and over whom individually the court has acquired jurisdiction either by entry of appearance or by service of process may be bound by the judgment therein." Back to Reference 5. Although Winker is named, the other partner, John Gardner, is not mentioned anywhere in the complaint. Back to Reference Click here for unpaginated view

PEOPLE v. ESCAMILLA COLOPLAST A/S. v. GENERIC MEDICAL DEVICES, INC. HUANG v. MARRIOTT INTERNATIONAL, INC. STATE v. SPARKS WILLS v. ELLSWORTH MOTOR FREIGHTLINES, INC. OPTIGEN, LLC v. INTERNATIONAL GENETICS, INC. STATE v. MATTHEWS JONES v. LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS STATE v. McKENZIE SALAFIA v. HANOVER INSURANCE COMPANY ROBLES v. GSMS, INC.

MARTIN v. JTH TAX, INC. McGESHICK v. CHOUCAIR IN RE LANGFIELD GEORGIA ASS'N OF RETARDED CITIZENS v. McDANIEL CAIN v. HYATT JOHNSON v. DISTRICT OF COLUMBIA PEOPLE v. SIMPSON DOE v. SAMARITAN COUNSELING CENTER BODENNER v. MARTIN

Actos Yaz Birth Defect Mesothelioma Actos Yaz Hip Recall Mesh Patch Birth Defect Mesothelioma Actos Yaz Birth Defect Mesothelioma

WILSON v. DALLAS, Supreme Court of South Carolina Disputes over James Brown's estate, a majority of which the entertainer designated for charity JUDICIAL WATCH, INC. v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, United States District Court, District of Columbia Judicial Watch's FOIA for DHS records on recent changes in federal immigration enforcement priorities WISCONSIN STATE EMPLOYEES UNION, AFSCME, AFL-CIO v. STATE, Court of Appeals of Wisconsin, District IV Whether some state employees should receive paid sabbatical days to offset furloughs TAXPAYERS FOR PUBLIC EDUCATION v. DOUGLAS COUNTY SCHOOL

DISTRICT, Court of Appeals of Colorado, Division IV Whether a voucher plan violates the Colorado Constitution by diverting taxpayer money to pay students' tuition at religious and other private schools ALACHUA COUNTY v. EXPEDIA, INC., District Court of Appeal of Florida, First District What portion of payments for hotel rooms paid for via online travel services like Orbitz and Expedia should be taxed 12345... Click here to search for Archival Cases

Disclaimer ::: 2010

:::

Terms of Use ::: Contact Us

::: :::

Privacy Statement Copyright

About Us Leagle, Inc.