Fetner v. Maury Boyd & Associates, Inc., No. 49A04-9001-CV-11

• Docket Nº: No. 49A04-9001-CV-11
• Citation: 563 N.E.2d 1334
• Case Date: December 19, 1990
• Court: Court of Appeals of Indiana

Page 1334

563 N.E.2d 1334 P. Jay FETNER, Appellant (Plaintiff Below),
v.
MAURY BOYD & ASSOCIATES, INC., Appellee (Defendant Below). No. 49A04-9001-CV-11. Court of Appeals of Indiana,
Fourth District. Dec. 19, 1990.
Rehearing Denied Jan. 25, 1991.

Page 1335

Gil I. Berry, Jr., Buck, Berry, Landau & Breunig, Indianapolis, for appellant.

Robert R. Clark, Richard S. Pitts, Lowe, Gray, Steele & Hoffman, Indianapolis, for appellee.

CONOVER, Judge.

Defendant-Appellant P. Jay Fetner (Fetner) appeals a judgment award by the Marion Superior Court in favor of Plaintiff-Appellee Maury Boyd & Associates (Boyd).

We affirm.

Fetner raises three issues for our review. We consolidate and restate them as:

1. whether the trial court erred in determining it had personal jurisdiction over Fetner, and

2. whether the trial court erred in denying Fetner's motion for continuance.

Boyd is an Indiana corporation with its principal place of business in Marion County, Indiana. Fetner is an attorney, businessman, and author with his principal residence in the District of Columbia.

In early 1987, Noble Hatfield, a Boyd employee, contacted Fetner in Washington, D.C., concerning the printing of Fetner's book, The African Safari. The parties exchanged numerous phone calls as they attempted to work out the details of printing the book. Subsequently, Fetner came to Indianapolis to view the printing plant and tour the printing facilities. While he was in Indianapolis, Fetner further discussed the particulars of having Boyd print his book. No agreement was reached while Fetner was in Indianapolis, but after his return to Washington, D.C., the parties exchanged documents. Fetner eventually agreed to let Boyd, through the Indianapolis printing facilities of Shepard Poorman, begin printing the book.

Fetner returned to Indianapolis on approximately three occasions to oversee the printing process and to approve proofs of color photographs which were to be included in the book. During Fetner's third trip to Indianapolis, Boyd expressed concern that the parties did not have a formal contract. After negotiation at the Shepard Poorman plant in Indianapolis, the parties

Page 1336

both signed a document in which Boyd agreed to print The African Safari and submit a final invoice, and Fetner agreed to make payment for the printing services, with the final payment due November 15, 1987. Fetner and Boyd further agreed at some future date to draw up a formal purchase order based on the specifications they attached to the agreement.

Although Fetner expressed initial satisfaction with the services provided by both Standard Poorman and Boyd, a dispute arose concerning payment. On March 31, 1988, Boyd filed suit against Fetner in the Marion Superior Court. It alleged Fetner had failed to pay for printing services already performed.

Subsequent to the filing of Boyd's complaint, Fetner filed an affidavit in which he claimed he was not doing business in Indiana, and then moved to dismiss the complaint because the trial court lacked in personam jurisdiction over him. A hearing was scheduled on the motion to dismiss, but Fetner, who was representing himself, failed to appear. The hearing was rescheduled and conducted on a later date. The motion to dismiss was subsequently denied.

The court set the case for trial on the merits for April 11, 1989. It also ordered Fetner to comply with discovery requests.

On March 22, 1989, Boyd moved for sanctions against Fetner because Fetner failed to answer interrogatories in a timely manner. A hearing was set for April 3, 1989, on the sanctions motion. Fetner was approximately two hours late for the hearing, and in his absence, the court imposed sanctions for failure to respond to the interrogatories. At the time of the April 3 hearing, Boyd moved to have the trial date reset. The court granted Boyd's motion and reset the trial for August 1, 1989. Later the same day, Fetner filed a motion in which he stated he was experiencing trouble in securing local counsel. Nevertheless, he requested the trial be set for July rather than August because of business conflicts. The court then reset the trial for July 18, 1989.

On July 10, 1989, a local attorney entered an appearance in Fetner's behalf and moved for a continuance in order to properly prepare for the trial. The court denied the motion for continuance and allowed the local attorney to withdraw his appearance. Fetner made a pro se motion for reconsideration of the denial to continue the trial date. In a pre-trial conference on July 17, 1989, the court advised Fetner to be ready for trial on the next day. Fetner failed to appear for trial and, after hearing evidence from Boyd, the court entered judgment against him. The court also ordered sanctions against Fetner because he had previously failed to appear for a deposition scheduled to be taken in Washington, D.C. Fetner now appeals.

Fetner contends the trial court erred in asserting jurisdiction over him because he was not "doing any business" as that phrase is used in our long-arm statute, Ind. Trial Rule 4.4(A)(1). We disagree.

The trial court's jurisdiction over Fetner is predicated on Ind. Trial Rule 4.4(A)(1) which grants the trial court jurisdiction over a...