Mullen v. Cogdell

Decision Date30 November 1994
Docket NumberNo. 57A05-9308-CV-289,57A05-9308-CV-289
Citation643 N.E.2d 390
PartiesJohn MULLEN, Robert E. J. Curran and Kathleen Mullen, Appellants-Third-Party Defendants, v. Charles R. COGDELL and Livingston, Dildine, Haynie & Yoder, Appellees-Third-Party Plaintiffs.
CourtIndiana Appellate Court

David R. Steiner, John F. Lyons, John M. Clifton, Barrett & McNagny, Fort Wayne, for appellants.

Hunt, Suedhoff, Borror & Eilbacher, Leonard E. Eilbacher, Fort Wayne, for appellees.

RUCKER, Judge.

This is an interlocutory appeal from three orders entered by the trial court during the pendency of a third-party complaint filed by Plaintiffs-Appellees Charles Cogdell and the law firm of Livingston, Dildine, Haynie & Yoder (collectively "Cogdell"). The complaint was filed against Defendants-Appellants John Mullen, Kathleen Mullen, and Robert Curran (collectively "Appellants") based on a claim arising out of a real estate

transaction. Appellants moved to dismiss the complaint for lack of personal jurisdiction. The trial court denied the motion. Thereafter, Appellants filed a motion for summary judgment. That motion was denied as well. Cogdell's motion to amend his complaint was granted. This appeal ensued. We address the following issues:

1) Whether the trial court erred in denying Appellants' motion to dismiss for lack of personal jurisdiction?

2) Whether the trial court abused its discretion in granting Cogdell leave to amend his third-party complaint to include a claim of actual fraud and a request for punitive damages?

3) Whether the trial court erred in denying Appellants' motion for summary judgment?

We affirm in part, reverse in part and remand.


In 1985, Pamela Morris decided to move from her residence in Washington, D.C. and to relocate in the state of Indiana. In accordance with that plan, Morris began making arrangements for the sale of her Washington, D.C. town house. Morris initially attempted to sell the property without the aid of a real estate agent but later signed a listing agreement with Mary White, Inc., a real estate agency located in Washington, D.C. The listing agreement covered the period of September 8, 1985, through November 8, 1985, and provided for a six percent brokerage fee if the property were sold during the listing period. The agreement also provided for payment of the brokerage fee if the property were sold within 120 days after termination of the listing period "to anyone to whom the property has been shown prior to final termination of the listing contract." Record at 260-61.

On September 14, 1985, Kathleen Mullen, a resident of Washington, D.C., along with her brother, John Mullen, a Pennsylvania resident, visited the property and made an oral offer to purchase. Mary White, Inc. informed the Mullens that the offer was too low and that the seller would not accept it. Approximately one week later, John Mullen telephoned Morris at her home in Washington, D.C. and made the same offer. However, this time Mullen identified himself as Phil Harvey and claimed to have seen the property prior to the time it was listed with the agent. Mullen informed Morris that he did not wish to deal with an agent and wanted to purchase the property after the listing agreement expired in order to avoid payment of a real estate commission. Mullen also telephoned Morris's father, Alfred Maloley, at his winter home in Sea Island, Georgia, regarding the proposed sale. Maloley, a resident of Fort Wayne, Indiana, remained at his home in Georgia throughout the events relevant to this litigation.

After Morris and Maloley expressed interest in selling the town house, John Mullen instructed his Pennsylvania attorney, Robert Curran, to prepare a purchase and sale agreement naming the buyer of the property as "Philip J. Harvey or his nominee." Record at 78 (Deposition of John Mullen, p. 16). Curran prepared the agreement and signed the name Philip Harvey. 1 Curran mailed the proposed agreement along with a transmittal letter to Alfred Maloley in Georgia. The same day Curran prepared a letter to a title company in Washington, D.C. regarding the proposed sale. Copies of each of these documents were sent to Morris in Washington, D.C. and to Alfred Maloley's accountant in Fort Wayne, Indiana.

Immediately prior to expiration of the listing agreement, the parties resumed discussions regarding the sale. Maloley referred John Mullen to his attorney, Charles Cogdell, in Fort Wayne, Indiana. Mullen then provided Curran with Cogdell's telephone number and address and requested that Curran contact Cogdell concerning the transaction. During one of several telephone conversations between Curran and Cogdell, Curran indicated that "Philip Harvey" would be out of the country on the date set for closing and that Harvey therefore wished to take title in On November 8, 1985, John Mullen, again identifying himself as Philip Harvey, telephoned Pamela Morris in Indianapolis requesting keys to the Washington, D.C. residence. The same day, Mullen telephoned Maloley's attorney, Charles Cogdell, concerning details of the impending closing. On November 9, 1985, Morris signed the deed and other closing documents and on November 14, 1985, the closing proceeded with Kathleen Mullen signing the purchase agreement, tendering the purchase price, and accepting title to the property.

the name of Kathleen Mullen. Cogdell thereafter prepared a revised purchase agreement naming Kathleen Mullen as purchaser.

Shortly thereafter Morris's real estate agent, Mary White, Inc., discovered that the property had been sold to a person who had seen the property during the listing period, which represented a violation of the listing agreement. The agency sued Morris, Maloley, John Mullen and Kathleen Mullen seeking recovery of its real estate commission. That litigation was eventually settled out of court.

Thereafter, on November 4, 1987, Pamela Morris and her father Alfred Maloley filed a malpractice action against Cogdell alleging negligence in connection with the sale. Prior to trial on the complaint for malpractice, Cogdell filed a third-party complaint against John Mullen, Kathleen Mullen, and Robert Curran. Count I of Cogdell's complaint sought indemnity for the amount of any judgment rendered against Cogdell in the malpractice action. Count II alleged a claim of constructive fraud and sought damages for emotional distress and injury to professional reputation. Cogdell's complaint also sought recovery of attorney's fees incurred in defense of the malpractice action. On May 23, 1989, a trial was held on the malpractice action resulting in a jury verdict in favor of Morris and Maloley.

On March 29, 1989, Appellants filed a motion to dismiss Cogdell's complaint for lack of personal jurisdiction. The trial court denied the motion. On February 1, 1993, Appellants filed a motion for summary judgment. The trial court took the motion under advisement and ultimately denied it as well. In the interim the trial court entered an order granting Cogdell's motion to amend his complaint to include an allegation of actual fraud and a request for punitive damages. On October 14, 1993, we accepted this interlocutory appeal on each of the trial court's orders.


Appellants first contend that the trial court erred in denying their motion to dismiss. According to Appellants they are not residents of the State of Indiana and the actions giving rise to Cogdell's complaint lack the minimum contacts necessary to confer personal jurisdiction on any court of this State.

To determine whether a nonresident defendant's contacts with the forum state are sufficient to confer personal jurisdiction, a two-part analysis is required. First, we must determine if the state's long arm statute authorizes the exercise of jurisdiction over the defendant; and second, we must determine whether asserting jurisdiction over the defendant would offend the due process clause of the Fourteenth Amendment. Brokemond v. Marshall Field & Co. (1993), Ind.App., 612 N.E.2d 143, 145 citing Szakacs v. Anheuser-Busch Companies, Inc., (N.D.Ind.1986), 644 F.Supp. 1121, 1122; Tietloff v. Lift-A-Loft Corp. (1982), Ind.App., 441 N.E.2d 986, 988.

Indiana Trial Rule 4.4(A), this state's long arm statute, provides that a nonresident may be subject to the jurisdiction of Indiana's courts if certain conditions are met. Specifically the statute provides in part:

Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:

(1) doing any business in this state;

(2) causing personal injury or property damage by an act or omission done within this state....

We have held that the foregoing statute is intended to extend personal jurisdiction to the limits permitted under the due process clause of the Fourteenth Amendment. See Dura-Line Corp. v. Sloan (1986), Ind.App., 487 N.E.2d 469, 470; Radio Picture Show v. Exclusive Int'l Pictures, Inc. (1985), Ind.App., 482 N.E.2d 1159, 1164, trans. denied. Thus, the inquiry here is whether asserting jurisdiction over John Mullen, Robert Curran and Kathleen Mullen would offend the due process clause of the Fourteenth Amendment. In essence, we must engage in a "single search for the outer limits of what due process permits." Griese-Traylor Corp. v. Lemmons (1981), Ind.App., 424 N.E.2d 173, 180 citing Oddi v. Mariner-Denver, Inc. (S.D.Ind.1978), 461 F.Supp. 306, 308.

Due process requires that the defendant have certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Harold Howard Farms v. Hoffman (19...

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