Appeal from the Clark Circuit Court The Honorable Andrew
Adams, Judge Trial Court Cause No. 10C01-1212-CT-204
ATTORNEY FOR APPELLANT Peter J. Sacopulos Sacopulos, Johnson
& Sacopulos Terre Haute, Indiana
Judi Simek brings an interlocutory appeal from the trial
court's denial of her motion to reconsider its previous
denial of her motion to dismiss the claims filed against her
by Christopher Nolan d/b/a Lakeside Farm, LLC, and William P.
McCall, III (collectively "the Plaintiffs").
Specifically, Simek asserts that dismissal is warranted
pursuant to Indiana Rule of Trial Procedure 12(B)(2) because
the trial court lacks personal jurisdiction over her. We
agree and therefore reverse and remand with instructions for
the trial court to dismiss the Plaintiffs' claims against
and Procedural History
The well-pleaded facts, both challenged and unchallenged,
when viewed in the light most favorable to the Plaintiffs
indicate that plaintiff Christopher Nolan, d/b/a Lakeside
Farm, LLC, is a limited liability corporation located in and
formed according to the laws of the State of Indiana.
Plaintiff William P. McCall, III, resides in Sellersburg. At
some point in time, Nolan contacted Scott
Everett via telephone regarding the
possibility of Everett training two thoroughbred horses,
Pacific Palisades and Cinnamon Beach, that were located in
Indiana and owned by Nolan and McCall. Everett is a licensed
thoroughbred trainer in the State of New York. Everett sent a
third party to Indiana to evaluate the horses. Nolan and
Everett subsequently entered into an oral contract which
provided that Everett would train the horses and assume all
costs of such training in exchange for a thirty-percent
ownership in the horses. It was agreed that any purse money
realized by the horses would be split equally minus jockey
fees. Thereafter, the horses were transported by a third
party from Indiana to Kentucky. Approximately eighty to
ninety days later, the horses were transported from Kentucky
to Florida. Everett took possession of the horses in Florida.
Sometime after August 11, 2010, Everett notified Nolan that
Pacific Palisades was incapable of racing. Nolan and Everett
determined that the horse would be given away. In February
2011, Everett notified Nolan that Cinnamon Beach had suffered
a "career ending" broken foot injury.
Appellant's App. at 14. Based upon Everett's
representation of the injury, Nolan advised Everett "to
obtain a good home for the horse as it was no longer capable
of thoroughbred racing." Id.
However, in early 2012, Nolan learned that Cinnamon Beach had
competed in several thoroughbred races, all occurring outside
of Indiana, and that the horse had won approximately $159,
418 in purse money. When Nolan contacted Everett regarding
what he had learned, Everett advised him that ownership of
Cinnamon Beach had been transferred to Simek.
On December 28, 2012, the Plaintiffs filed a complaint for
damages against Everett and Simek in the Clark Circuit Court.
The complaint, sounding in contract and tort law, alleges
that Everett "breached the oral contract for training
services, " that Everett and Simek "committed fraud
and misrepresentation concerning the condition of Cinnamon
Beach, " and that Everett and Simek "converted the
Plaintiffs['] thoroughbred horse to
their own use without the knowledge and consent of the
Plaintiffs …." Id. at 16. Everett and Simek subsequently filed a
motion to dismiss pursuant to Indiana Trial Rule 12(B)(2)
challenging the trial court's personal jurisdiction over
them. The Plaintiffs responded to the motion to dismiss, and
the trial court heard argument from counsel for all parties
at a hearing on February 3, 2014. Following the hearing, the
trial court denied the motion to dismiss and directed
"that depositions be taken of Mr. Nolan, Mr. Everett and
Ms. Simek and lock in facts under oath. The Court will grant
leave to renew the motion [to dismiss] once those facts are
locked in under oath, subject to later discovery."
Id. at 6.
It appears from the record that no depositions were ever
taken. On August 18, 2015, Simek filed a motion to reconsider
the motion to dismiss for lack of personal jurisdiction. In
support of her motion to reconsider, Simek submitted her own
affidavit as well as four additional affidavits, including
that of her co-defendant Everett. In her personal affidavit,
Simek avers that she is a resident of the State of New York.
She states that she has never been to Indiana, does not know
anyone in Indiana, does not possess any assets or real
property in Indiana, has never conducted business in Indiana,
has never had any communication with any business or
individual located in Indiana, and has no intention, other
than as necessary for the purposes of the current litigation,
of entering Indiana. Id. at 107. Simek states that
she had no involvement with or knowledge of Cinnamon Beach
until the horse was physically present in New York. She
further states that any investment or other transaction
regarding her co-ownership of Cinnamon Beach with Everett
occurred in New York, and that Everett has never, at any
time, acted as her agent, employee, or representative in any
The trial court held a hearing on the motion to reconsider on
December 15, 2015. Following the hearing, the trial court
entered an order again denying the motion to dismiss and
ordering "previous discovery to be completed."
Id. at 106. Upon Simek's motion, the trial court
stayed the discovery order as it applied to her and certified
its order denying the motion to dismiss for interlocutory
appeal. We accepted jurisdiction. Additional facts will be
provided as necessary.
As a preliminary matter, we observe that the Plaintiffs did
not file an appellees' brief. Where an appellee fails to
file a brief, we do not undertake to develop arguments on
that party's behalf; rather, we may reverse upon a prima
facie showing of reversible error. Morton v. Ivacic,
898 N.E.2d 1196, 1199 (Ind. 2008). Prima facie error is error
"at first sight, on first appearance, or on the face
[of] it." Id. The "prima facie error
rule" relieves this Court from the burden of
controverting arguments advanced for reversal, a duty which
remains with the appellee. Geico Ins. Co. v. Graham,
14 N.E.3d 854, 857 ...