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Brother in Holiday World dispute still fighting for ownership

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The family battle over the southern Indiana amusement park, Holiday World and Splashin’ Safari, could be moving to the Indiana Supreme Court.

Attorneys representing Dan Koch filed a petition to transfer Dec. 5. They argue under a “legitimate reading” of the agreement between the park’s shareholders and the estate of the William Koch Jr., the estate is only entitled payment for William Koch’s shares and cannot be the majority shareholder.

The Koch Development Corp.’s 2002 share purchase and security agreement required the corporation to buy all the shares of common stock whenever a shareholder died. After Will, then the majority owner, passed away in June 2010, his brother, Dan, became owner and operator of Holiday World.

Dan subsequently tendered an offer of $26.9 million for Will’s majority shares. However, Will’s widow charged that Dan had undervalued the shares and the actual purchase price is $32.1 million.

In October, the Indiana Court of Appeals found Dan and KDC materially breached the agreement and, therefore, the estate did not have to sell Will’s shares.     

Petitioning for transfer, Dan asserted the Court of Appeals improperly relied on the “first party to breach” doctrine. He argued this doctrine has been repealed by the adoption of Section 242 of the Restatement (Second) of Contracts which expressly calls for contracts to be enforced even when there has been a material breach.

“Under no reasonable interpretation of the Court of Appeals’ Opinion did the court enforce the Agreement,” Dan’s petition stated. “Instead, relying on the ‘first party to breach’ doctrine, the court rewrote the Agreement to provide extra-contractual relief to the Estate, contrary to the expectations of the parties.”

In addition, Dan faulted estate’s continued assertion that he failed to act within the 180-day period imposed by the agreement. He stated that the estate’s position is unfounded and runs counter to Indiana law.

Dan concluded that Indiana law requires the estate to sell Will’s share to him and KDC.

“To rule otherwise, allowing the Estate to keep Will’s stock – and thus majority ownership in KDC – would defeat the clear expectations of the parties of the Agreement and, contrary to the Estate’s position, would grant it an unlawful windfall, because under no legitimate reading of the Agreement is the Estate entitled to anything other than the purchase price of Will’s shares,” the petition states.



 

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  1. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  3. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  4. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  5. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

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