Boczar v. Reuben

• Decision Date: 09 February 2001
• Docket Number: No. 49A04-0010-CV-417.,49A04-0010-CV-417.
• Citation: 742 N.E.2d 1010
• Parties: Linda Morrison BOCZAR and James J. Boczar, Appellants-Defendants, v. Laurence M. REUBEN, Appellee-Plaintiff.
• Court: Indiana Appellate Court

742 N.E.2d 1010

Linda Morrison BOCZAR and James J. Boczar, Appellants-Defendants, v. Laurence M. REUBEN, Appellee-Plaintiff.

No. 49A04-0010-CV-417.

Court of Appeals of Indiana.

February 9, 2001.

Linda Morrison Boczar, James J. Boczar, Appellants Pro Se.

Jane Ruemmele, Huffer & Weathers, Indianapolis, IN, Attorney for Appellee.

OPINION

BAKER, Judge

Appellants-defendants Linda Morrison Boczar and James J. Boczar (collectively, the Boczars) appeal pro se the trial court's grant of summary judgment in favor of Laurence M. Reuben on both his claims and their counterclaims. Specifically, they contend that the trial court 1) never acquired personal jurisdiction over them because of Reuben's purported failure to comply with Ind. Trial Rules 4.1(A) and (B); 2) erroneously accepted improperly designated materials for consideration of Reuben's summary judgment motion; 3) ignored genuine issues of material fact in granting summary judgment on Reuben's claims against them; and 4) improperly granted summary judgment in favor of Reuben on their counterclaims.

FACTS

This case was spawned from what Judge Tinder described as "a project full of promise and hope" which "turned into a neighborhood nightmare." Boczar v. Kingen, No. IP 99-0141-C-T/G, 1999 WL 33109074, at *1 (S.D.Ind. July 2, 1999) (denying the Boczars' request for preliminary injunction). In July 1996, the Boczars purchased a home in an Indianapolis historic district governed by the Meridian Street Preservation Act (MSPA).¹ R. at 133. The Meridian Street Preservation Commission (MSPC) regulates any construction, alteration, or modification of structures within the area subject to the MSPA.² So, wishing to renovate their home, the Boczars set out to win the approval of the MSPC. The MSPC approved of the Boczars' first architectural design, but the Boczars soon found that they could not afford to implement it. Eventually, the Boczars modified their original design and found a contractor. Their contractor submitted the plans to another agency regulating the area—the Department of Metropolitan Development (DMD). However, the Boczars neglected to inform the first agency, the MSPC, of significant changes made to the originally approved plans. After construction began, several homeowners began to complain to members of the MSPC, calling the modified construction "unsightly" and not comporting with the "aesthetics of the neighborhood." R. at 142.

A neighborhood feud soon erupted. The Boczars sued several members of the MSPC and the DMD as well as the City of Indianapolis.³ The conflict turned ugly as Linda was caught on videotape vandalizing a neighbor's home. She was subsequently convicted and sentenced to community service.

Reuben, an Indianapolis attorney, began representing Linda and James in December 1998 or January 1999. Among other services, Reuben represented the Boczars⁴ in the above suit and drafted a quitclaim deed to convey residential property from Linda to both Linda and James. The residential property, the subject of the neighborhood dispute, was located at 4821 North Meridian Street in Indianapolis.

While representing the Boczars in the litigation, Reuben filed pleadings, attended hearings, took depositions, and participated in negotiations with opposing parties. Afterward, at the Boczars' request, Reuben withdrew his appearance in July 1999. In his affidavit in support of summary judgment, Reuben related that the reason for his withdrawal was the Boczars' inability to continue incurring legal fees.

Less than three months later, on October 14, 1999, Reuben filed a complaint against the Boczars, claiming damages for breach of contract and quantum meruit. His damages—$12,487.59—were the result of legal fees the Boczars had failed to pay. Copies of the complaint and summons were left in the mailbox at 4821 North Meridian Street, Indianapolis, Indiana.

On November 9, 1999, Linda Boczar filed a motion to dismiss the case for "insufficiency of service of process" and "lack of personal jurisdiction."⁵ Record at 27. In her motion, she contended that no attempt was made to serve anyone at the 4821 North Meridian Street address. Linda also asserted that her dwelling house was in Moultrie, Georgia. Consequently, she argued that the trial court had not "acquired personal jurisdiction over" her and that the court should dismiss the complaint. R. at 27.

In response to the motion to dismiss, Reuben filed a motion opposing dismissal along with an affidavit recounting instances of correspondence that Reuben both sent to and received from the 4821 North Meridian Street address. For instance, attached to Reuben's affidavit were five letters received from James Boczar, sent from the 4821 North Meridian Street address. The last of the five letters was dated August 12, 1999. Moreover, on the contract for legal services, dated January 3, 1999, Linda listed her address as 4821 North Meridian Street. In addition, on numerous occasions, the Boczars spoke with Reuben by telephone from that address and sent and received facsimiles from that address. Finally, Reuben's motion to withdraw as the Boczars' counsel shows that the Boczars authorized him to direct all future pleadings to the 4821 North Meridian Street address. R. at 14. The trial court eventually denied the motion to dismiss.

On March 9, 2000, the Boczars filed an answer, denying the allegations set forth in Reuben's complaint, and counterclaimed for attorney malpractice against Reuben. Reuben, afterward, filed a summary judgment motion on March 31, 2000, along with an affidavit and designated evidence in support of summary judgment. Specifically, Reuben alleged that he was entitled to judgment as a matter of law for the services he provided to the Boczars. A hearing on the summary judgment motion was held on June 12, 2000. The trial court granted summary judgment in favor of Reuben and dismissed the Boczars' counterclaims with prejudice. The Boczars now appeal.

DISCUSSION AND DECISION

I. Personal Jurisdiction

The Boczars contend that the trial court never acquired personal jurisdiction over them. Specifically, they claim that Reuben failed to meet the service of process requirements for individuals found in T.R. 4.1(A) and (B).

To resolve this issue, we first turn to the relevant provisions of our trial rules. The "Service of Individuals" rule, T.R. 4.1, provides:

(A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:

(1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or

(2) delivering a copy of the summons and complaint to him personally; or

(3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or

(4) serving his agent as provided by rule, statute or valid agreement.

(B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return.

Id. (emphasis supplied). The Boczars assert that, inasmuch as 4821 North Meridian Street was not their "dwelling house," any complaint or summons left there never amounted to the service required by T.R. 4.1(A)(3). In addition, they claim that Reuben failed to comply with T.R. 4.1(B) because a copy of the summons was not sent by mail after the complaint and summons were left at the 4821 North Meridian Street address.

Our supreme court recently set forth the following formula for proving personal jurisdiction:

Because Indiana state trial courts are courts of general jurisdiction, jurisdiction is presumed. Therefore, the plaintiff need not allege jurisdiction in its complaint. A challenge to personal jurisdiction may be raised either as an affirmative defense in the answer to the complaint or in a motion to dismiss. In either case, once the party contesting jurisdiction, usually the defendant, challenges the lack of personal jurisdiction, the plaintiff must present evidence to show that there is personal jurisdiction over the defendant. However, the defendant bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence, unless the lack of personal jurisdiction is apparent on the face of the complaint.

Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind.2000) (emphasis supplied) (citations omitted). In other words, once the defendant contests personal jurisdiction, the plaintiff must present evidence showing that personal jurisdiction exists. However, once the plaintiff makes this showing, the burden rests on the defendant to prove a lack of personal jurisdiction by a preponderance of the evidence.

Similarly, to attack successfully the trial court's jurisdiction over them, the Boczars shouldered the burden of showing that the 4821 North Meridian Street address was not their "dwelling house" or "usual place of abode." "What is or is not a party's dwelling house or usual place of abode within the context of T.R. 4.1 is a question that turns on the particular facts of the case." Doyle v. Barnett, 658 N.E.2d 107, 109 (Ind.Ct.App.1995). Therefore, we will review a trial court's determination of a party's "dwelling house" or "usual place of abode" under an abuse of discretion standard. See Mills v. Coil, 647 N.E.2d 679, 681 (Ind.Ct.App.1995)

.

Here, the Boczars filed identical motions to dismiss Reuben's complaint. R. at 27. As set forth in the FACTS, the motions asserted that 4821 North Meridian Street was not their "dwelling house" or "usual place of abode." R. at 27. Rather, the motion asserted that their dwelling house...