Breneman v. Slusher

• Decision Date: 10 May 2002
• Docket Number: No. 71A03-0110-CV-338.,71A03-0110-CV-338.
• Citation: 768 N.E.2d 451
• Parties: Ron BRENEMAN, Appellant-Defendant, v. Clifford SLUSHER d/b/a Slusher Hardwoods, Appellee-Plaintiff.
• Court: Indiana Appellate Court

768 N.E.2d 451

Ron BRENEMAN, Appellant-Defendant, v. Clifford SLUSHER d/b/a Slusher Hardwoods, Appellee-Plaintiff.

No. 71A03-0110-CV-338.

Court of Appeals of Indiana.

May 10, 2002.

William L. LaBre, J.D., The Law Office of William L. LaBre, J.D., Edwardsburg, MI, Attorney for Appellant.

Lynn M. Butcher, Don G. Blackmond, Jr., South Bend, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Ron Breneman (Appellant) appeals the denial of his motion to set aside the default judgment entered against him in an action filed by Clifford Slusher, d/b/a Slusher Hardwoods. Appellant presents the following consolidated, restated issues for review:

1. Did the trial court have personal jurisdiction over Ron Breneman?

2. Did the trial court abuse its discretion in refusing to set aside the default judgment entered against Breneman?

We affirm.

The facts are that on March 11, 2000, Slusher entered into a timber contract with Michiana Hardwoods, Inc. (the First Contract). Greg Breneman,¹ who owned Michiana with his wife, Romana Breneman, signed the contract on behalf of Michiana. Under that contract, for the sum of $110,000, Michiana sold Slusher the rights to all usable timber or cut logs on certain property owned by Steve Cooreman in St. Joseph County, Indiana. The contract identified the timber in question as "trees on Steve Cooreman cont[ract]." This language referred to a contract (the Second Contract) that was, in fact, executed two days later, on March 13, 2000, between Michiana and Cooreman, d/b/a Cooreman Real Estate. Under the provisions of the Second Contract, Michiana agreed to pay Cooreman $90,000 for the rights to timber located on Cooreman's land in St. Joseph County. In essence, in the First Contract, Michiana assigned to Slusher the timber rights it would acquire two days later from Cooreman in the Second Contract. It appears that, with respect to the First Contract, Slusher initially paid $60,000 of the $110,000 amount owed to Michiana, in what was characterized as a down payment. When Michiana and Cooreman signed their agreement two days later, Michiana paid $60,000 of the $90,000 contract amount.

Sometime thereafter, Slusher sought to begin logging on Cooreman's land, but Cooreman refused to allow it.² On June 16, 2000, Greg Breneman delivered to Slusher a check for $100,000, which was apparently intended to compensate Slusher for damages suffered as a result of his inability to perform logging activities on Cooreman's land. The check was drawn on Greg and Romana Breneman's personal checking account and bore Greg's signature. The drawee bank dishonored the check due to insufficient funds.

It is at this point that Ron Breneman became involved, although the parties disagree about how his involvement was initiated and to what extent he became involved. Both questions are relevant to the issues before us. According to Appellant, he was contacted by Don Harper, a mutual friend of all of the principals involved. Harper asked Appellant to help resolve the matter between Greg Breneman and Slusher. According to Slusher, Appellant contacted him and asked to meet and discuss the problem. Regardless of how it came about, it is undisputed that Appellant and Slusher met at a truck stop in Rochester, Indiana in January or February of 2001 in order to discuss the situation. Each party remembers the events of that meeting differently.

According to Slusher, Appellant gave his personal guarantee that if Slusher refrained from filing a lawsuit against Greg Breneman and Michiana within the week, Appellant would make sure that Slusher was paid in full within two weeks. Slusher asked whether Appellant was giving his personal guarantee and Appellant responded, "I personally guarantee that you will get paid." Appellant's Appendix at 35. Appellant, on the other hand, denied Slusher's allegation that he gave his personal guarantee. In fact, he claims to have told Slusher that he "would not sell any of his property, borrow any money, or utilize any of his assets to pay his (Greg Breneman's) debt." Id. at 107.

According to Slusher, he relied upon Appellant's alleged assurance and did not file suit against Greg Breneman or Michiana. At the time that Appellant and Slusher met in the Rochester Truck Stop, Greg Breneman apparently owned certain assets that could have been used to satisfy some or all of the debt to Slusher. Those assets were liquidated at some point between the time Slusher agreed to forestall the filing of a lawsuit and the time that he filed suit about eight weeks later.

On April 4, 2001, Slusher filed suit against Michiana, Cooreman Real Estate Group, Inc., Steve Cooreman, Greg Breneman, Romana Breneman, and Ron Breneman. The only allegations in the complaint that are relevant to the instant appeal are those against Appellant, Ron Breneman. In Count IV of the complaint, Slusher alleged that Appellant personally guaranteed the debt Greg Breneman incurred on the First Contract. Slusher further alleged that he relied on that guarantee in delaying the filing of a lawsuit, and that such was done to his detriment because Greg Breneman was able to liquidate and dispose of his assets before Slusher could file suit to reach them in satisfaction of the debt. Thereafter, Slusher sought to serve all of the named defendants with a copy of the complaint and summons. Because it is critical to the issues before us, we reproduce below relevant portions of an affidavit submitted by Jim Klemczewski, who was hired by Slusher to serve Appellant with a copy of the complaint.

3. I was contacted by the attorney for the Plaintiff, Clifford Slusher, d/b/a Slusher Hardwoods, who retained my services for the purpose of serving process on Steve Cooreman, Greg Breneman, Romana Breneman, and Ron Breneman, in the above captioned matter.

4. I located Ron Breneman's last known residential address in Buchanan, Michigan, at 236 E. Wagner, Buchanan, Michigan 49107.

5. I attempted to personally serve Ron Breneman advising him that I was attempting to contact him.

6. On April 7, 2001, I contacted Greg Breneman by telephone and advised him who I was and that I was attempting to serve process on him, Romana, and Ron. He advised me that he was traveling to South Haven, Michigan, and would not be back until Monday, April 9, 2001. He agreed to meet me at his business on the 9th. He agreed to bring Ron Breneman with him so that they could be served at the same time.

7. On April 9, 2001, I telephoned Greg Breneman at his home telephone number, (616) 756-3637, and left a message with his answering service.

8. On April 11, 14, and 16, I made additional telephone calls to Greg Breneman at his home telephone number, however he did not answer my calls. On these same dates I telephoned Ron Breneman at his home telephone number, (616) 695-3847, and left messages for him concerning my need to get in contact with him. He did not return my calls.

9. On April 16, 2001, I personally served the Complaint and summons on Greg Breneman. He accepted service for his wife, Romana Breneman.

10. On April 16, 2001, I affixed one copy of the Complaint and one copy of the summons to the front door of Ron Breneman's dwelling house located at 236 E. Wagner, Buchanan, Michigan 49107. On April 16, 2001, I also mailed one copy of the Complaint and one copy of the summons to Ron Breneman at the 236 E. Wagner address by certified mail, return receipt requested. The attendant at the United States Post Office advised me that in the past Ron Breneman had not accepted certified mailings and would not accept the certified mailing from me. The return receipt card was never returned to me.

11. I attempted to serve Ron Breneman at 236 E. Wagner, Buchanan, Michigan 49107, but he refused to cooperate by not returning my phone calls, not responding to the notes that I left for him, and not showing up for the scheduled meeting, thereby successfully evading personal service.

12. During my efforts to personally serve Ron Breneman I learned that other people were looking for him, that he was evading those other people, and that he did not cooperate with people who were looking for him.

13. I performed a diligent search. That search revealed no other addresses for Ron Breneman and further revealed that the telephone number for his business, R & D Forest Products, is the same as his home telephone number.

14. I exhausted all reasonable means to personally serve Ron Breneman.

Appellant's Appendix at 119-21. In view of the difficulties encountered in getting personal service on the Appellant, on June 14, 2001, Slusher filed a Praecipe for Summons by Publication, which stated:

YOU ARE HEREBY NOTIFIED that you are a party to the above captioned cause of action where in a Complaint was filed on April 4, 2001 in this Court. Unless you respond within thirty (30) days after the last notice of this action is published, a judgment by default may be entered against you for the relief demanded in this complaint.

Id. at 80. As a result of the published notice, Greg Breneman contacted Slusher's attorney, Donald G. Blackmond, Jr.,³ and the two arranged a day and time to meet. On the morning of the day they were supposed to meet, Greg Breneman called to inform Blackmond that he would have to reschedule the meeting. They agreed to meet the next week. Greg did not show up for the rescheduled meeting, nor did he call to explain his absence. Blackmond sent a letter to Greg stating that Greg had failed to make a good-faith effort to resolve the situation and stressing the need to do so.

On July 17, 2001, Blackmond sent a letter to Greg and Romana Breneman, in care of Greg's mother. That letter contained the following: "Your brother Ron will need to contact me regarding the lawsuit pending against him. He will need to respond to the complaint or be defaulted." Id. at 24. Soon thereafter, Appellant called Blackmond and arranged to meet with him at Blackmond's office. Blackmond described that meeting, which...