State v. Omega Painting, Inc.

Decision Date09 May 1984
Docket NumberNo. 1-383A82,1-383A82
Citation463 N.E.2d 287
PartiesSTATE of Indiana, Defendant-Appellant, v. OMEGA PAINTING, INC., Plaintiff-Appellee, American Druggist Insurance Co., Intervening Plaintiff Below.
CourtIndiana Appellate Court

Linley E. Pearson, Atty. Gen., Thomas R. Hamill, Robert S. Spear, Deputy Attys. Gen., Indianapolis, for defendant-appellant.

Charles C. Griffith, Brian K. Carroll, Johnson, Carroll & Griffith, P.C., Evansville, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Appellant State of Indiana (State) appeals from a jury verdict and judgment entered thereon in a contract action in the Posey Circuit Court. We reverse.

FACTS

Omega Painting, Incorporated (Omega) entered into a contract with the State for the sandblasting and painting of several bridge spans in southern Indiana. The contract called for Omega to blast to a number six (# 6) commercial finish, and then to seal and paint the spans within a period of forty (40) working days. Difficulties arose when State Supervisor Moore was replaced with Supervisor Markwell. Omega's president, Stelios Sakoutis, complained repeatedly that Markwell was requiring the contractor to blast to a standard finish higher than the # 6 commercial blast. As a consequence of this continuing dispute, the work lasted almost five (5) months, and resulted in a much greater expenditure of time and materials on the part of Omega. At the conclusion of the job, Omega brought suit for the additional costs incurred in completing the project. The jury returned a favorable verdict and the court entered judgment thereon. It is from that judgment that the State now appeals.

ISSUES

State presents a plethora of issues on appeal. However, because we reverse the judgment herein, we proceed to address only two of appellant's issues. 1 Rephrased, they are as follows:

1. Did the trial court err in failing to dismiss the cause of action for lack of personal jurisdiction?

2. Did the trial court err in refusing to grant State's motion for judgment on the evidence at the conclusion of all the evidence?

DISCUSSION AND DECISION
Issue One

The trial court did not err in failing to dismiss the instant action for lack of personal jurisdiction.

Indiana Rules of Procedure, Trial Rule 4.6(A)(3) governs the service of process upon a governmental entity. That section states that "[s]ervice upon an organization may be made as follows: In the case of a state governmental organization upon the executive officer thereof and also upon the Attorney General." Alcoholic Beverage Commission v. State ex rel. Cohen, (1971) 257 Ind. 112, 114, 272 N.E.2d 611, 612 (emphasis supplied). It is clear that the requirements of Trial Rule 4.6(A)(3) are mandatory in nature. The supreme court noted in Cohen that use of the permissive "may" "is in no way a qualification upon the requirements set out in paragraph (3) of that Rule ...." Id. at 114-15, 272 N.E.2d at 613. Therefore, in order to effect proper service in the instant case, service should have been made upon both the Indiana State Highway Commission as the agency involved and the attorney general as counsel for the state. It is undisputed that the agency was not served with a copy of the complaint and summons by Omega. This should result in a failure of process and constitute proper grounds for dismissal upon the State's motion. However, it is also true that a party not otherwise subject to the personal jurisdiction of the court may, nevertheless, submit himself to the court's jurisdiction. Killearn Properties, Inc. v. Lambright, (1978) 176 Ind.App. 684, 685, 377 N.E.2d 417, 418. This may occur when such a party either fails to timely object to the court's jurisdiction or seeks affirmative relief from the court. Id. at 686, 377 N.E.2d 418. Such submission will preclude any further contention that the court lacked in personam jurisdiction.

The State correctly notes that in order to preserve the question of personal jurisdiction, the issue must be timely raised either by a motion pursuant to Trial Rule 12(B)(2) or in the answer. See Indiana Rules of Procedure, Trial Rule 12. 2 Failure to so preserve the question will result in its waiver on appeal. In the instant case, the State first asserted the jurisdictional question in its answer to Omega's complaint. Because the State did not raise any defenses by motion pursuant to Trial Rule 12(B) prior to filing its answer, the State's assertion of the jurisdictional defense in its answer was timely. Accord Phillips v. Great Lakes Health Congress, (1976) 170 Ind.App. 674, 676, 354 N.E.2d 307, 309 (if any motion under Trial Rule 12 is made prior to filing of the responsive pleading, such defenses must be raised in that motion or they are waived); Burger Man, Inc. v. Jordan Paper Products, Inc., (1976) 170 Ind.App. 295, 318-19, 352 N.E.2d 821, 835, trans. denied (1977) (defendant's failure to file a 12(B)(2) motion with their 12(B)(6) motion resulted in waiver of any issue relating to trial court's lack of personal jurisdiction pursuant to Trial Rule 12(G) and (H)). 3 This was sufficient to properly preserve the question.

Notwithstanding the State's timely assertion of the defense in its answer, however, Omega contends that the State nonetheless submitted to the personal jurisdiction of the court by appearing in the action. We cannot agree. This court has previously noted that the mere entry of an appearance does not act as a waiver of the defense of lack of personal jurisdiction where such defense is timely raised in the answer or by 12(B)(2) motion. See In re Marriage of Rinderknecht, (1977) 174 Ind.App. 382, 394, 367 N.E.2d 1128, 1136 n. 11. Accord 1 W. Harvey, Indiana Practice Sec. 12.7 (1969). Because the State timely raised the jurisdictional question in its answer, we cannot say that the State submitted to the personal jurisdiction of the court merely by appearing in the action.

Omega further contends that by requesting an extension of time in which to file an answer, the State sought affirmative relief of the court and is, thereby, estopped to deny the court's personal jurisdiction. In Simms v. Mason's Stores, Inc., (1974) 285 N.C. 145, 203 S.E.2d 769, the North Carolina Supreme Court, when faced with a similar issue, noted that "under the federal decisions, nothing else appearing, a defendant's motion for an enlargement of time to plead will not waive lack of jurisdiction over the person if the defense is timely presented thereafter in accordance with Rule 12 requirements." Id. at 156, 203 S.E.2d at 777. 4 The Supreme Court of Missouri sitting en banc, reached a similar result in State ex rel. White v. Marsh, (1983) Mo., 646 S.W.2d 357, 362. In accord with these authorities, we too conclude that such a motion does not result in an estoppel to subsequently assert the jurisdictional defense. 5 Accordingly, we hold that where the issue of lack of personal jurisdiction is properly preserved, either by 12(B)(2) motion or in the answer, a prior request for an extension of time in which to file an answer should not, in and of itself, act as a waiver of, or estop the defendant from, preserving the issue for review.

Omega also argues that the State's request for a change of venue, which was filed contemporaneously with the State's answer, was a request for affirmative relief such as to estop the State from denying the court's in personam jurisdiction. We do not agree. In Killearn Properties, Inc. v. Lambright, (1978) 176 Ind.App. 684, 377 N.E.2d 417, Lambrights filed a complaint to which Killearn filed a request for change of venue pursuant to Trial Rule 76. Subsequent to the change of venue, Killearn filed a motion to dismiss alleging a lack of personal jurisdiction. This court concluded that a request for a change of venue was indeed a request for affirmative relief. Id. at 686-87, 377 N.E.2d at 418-19. 6 However, it should be noted that Killearn, as well as our supreme court's decision in Nesbit v. Long, (1871) 37 Ind. 300, upon which Killearn is predicated, involved a change of venue request filed prior to the assertion of a lack of personal jurisdiction. In the instant case, the motion for change of venue was filed contemporaneously with the State's answer asserting the lack of personal jurisdiction. This court has previously noted that once the defense of lack of personal jurisdiction is properly preserved, the defendant may proceed with a defense on the merits without waiving the jurisdictional issue. Rinderknecht, 174 Ind.App. at 394, 367 N.E.2d at 1136 n. 11. Accordingly, we cannot say that such a request for a change of venue, filed contemporaneously with or subsequent to the proper preservation of the jurisdictional question, seeks the affirmative relief of the court and, thereby, acts as a waiver of, or an estoppel to assert, the jurisdictional claim. 7

Finally, Omega argues that by sending out interrogatories the State waived the issue of lack of personal jurisdiction. The State entered its appearance and requested an extension of time in which to file on February 27, 1981. The trial court granted the extension and gave the State until April 13, 1981, to file its answer. The State did, in fact, file its answer on that date. However, on April 8, prior to the filing of the State's answer, the State filed with the court its first interrogatories to Omega. 8 The contractor argues that by filing interrogatories which sought to generate a defense on the merits, prior to the preservation of the jurisdictional defense, the State waived any jurisdictional question. In this we are constrained to agree with Omega. While the State could have properly preserved the question of jurisdiction in its answer and then proceeded with a defense on the merits, by filing its interrogatories prior to the assertion of the defense, the State has waived the jurisdictional issue. 9 See In re Marriage of Rinderknecht, (1977) 174 Ind.App. 382, 394, 367 N.E.2d 1128, 1136 n. 11. Because we...

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