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Simek v. Nolan

Court of Appeals of Indiana

November 30, 2016

Judi Simek, Appellant-Defendant,
v.
Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III, Appellees-Plaintiffs and Scott Everett, Defendant,

         Interlocutory 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

          Crone, Judge.

         Case Summary

         [¶1] 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 Simek.

         Facts and Procedural History

         [¶2] 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[1] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.[2] 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.

         [¶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 capacity.

         [¶7] 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.

         Discussion and Decision

         [¶8] 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 ...


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