Continuances are becoming commonplace in a lawsuit that holds the intense interest of several local entities, including the town of Winona Lake and Grace College.
The suit of Dr. Dane Miller v. Brent Wilcoxson was nearing a court hearing for next week when, on Monday, counsel for both parties jointly contacted the court and requested a continuance.
Both sides asked for more time allotted than the Friday, Sept. 28, hearing that was set. According to court records, Dr. Miller’s attorneys will not be available on Sept. 28, so a continuance was granted for 1 p.m. Friday, Nov. 16.
At that November hearing, special judge Terry C. Shewmaker of Elkhart County Circuit Court, will consider the defendant’s motion to dismiss several counts of the lawsuit claiming the statute of limitations have passed.
In a counter motion, plaintiff’s counsel argues the charges cannot be dismissed legally if the complaining party is entitled to relief. Court documents indicate relief could be determined to reach into the millions of dollars.
The defense’s further claim that the lawsuit “failed to allege any misrepresentation by Wilcoxson” is also disputed by the plaintiffs who say fraud “may consist of conduct as well as words.”
Wilcoxson is accused in one count of keeping $900 for himself and falsely representing a deposit made to the WRP books.
The general lawsuit filed by Dr. Dane Miller and Winona Restoration & Preservation Inc. against his former business partner in WRP, Brent Wilcoxson, alleges criminal theft and fraud.
According to court documents, Wilcoxson attempted to hide a $12,000 loan from WRP that was given to his son, Aaron, and which was never repaid. It is also charged that Wilcoxson paid his son’s college tuition from WRP funds and hid those expenses.
Additionally, Wilcoxson is accused of transferring a promissory note from Grace College to his own nonprofit organization, Winona Arts Restoration & Preservation Inc., and keeping $29,000 from the sale of Winona Mercantile for his own W.A.R.P. organization.
That information prompted Grace College to enter into the suit fearing it may have a “double liability” from purchasing Mount Memorial Hall property from WRP, although the funds were deposited into Wilcoxson’s own W.A.R.P. account. Grace has made monthly payments of $18,200 on the property since Jan. 1, 2005, and is scheduled to continue those payments until Dec. 31, 2015. To date, Grace has paid to W.A.R.P. for the Mount Memorial property the sum total of $1,674,400 toward the purchase.
According to the motion to intervene filed by the college, a letter written by Wilcoxson and dated Oct. 5, 2006, claimed WRP “gifted” the note and mortgage on the property to W.A.R.P., a claim Dr. Miller denies in the lawsuit.
The plaintiff’s latest motion asked the court to deny the defense’s motion to dismiss saying, “Wilcoxson acted with malice, fraud, gross negligence or oppressiveness that was not the result of mistake of fact or law, honest error or judgement, overzealousness, mere negligence or other human failing.”
Judge Shewmaker has set the next hearing in his court for 1 p.m. Friday, Nov. 16. The judge is expected to hear all pending motions, together with Grace Schools’ motion to intervene as a separate party in the lawsuit.
In a final note, Warsaw attorney Michael W. Reed filed a motion on Sept. 11 to withdraw as counsel for Miller. Reed serves as Dr. Miller’s local counsel, but the scope of his involvement has been withdrawn as the case has moved to Elkhart County Circuit Court.
Dr. Miller is represented in Elkhart County by John D. Ulmer, and by R.C. Richmond III of Indianapolis-based Taft Stettinius & Hollister.
Wilcoxson is represented by Larry Lee Barnard and Robert L. Nicholson of Carson Boxberger LLP out of Fort Wayne.
The Nov. 16 hearing will be held in Elkhart County.