Suyemasa v. Myers

Decision Date28 May 1981
Docket NumberNo. 1-180,1-180
Citation420 N.E.2d 1334
PartiesGeorge SUYEMASA, Plaintiff-Appellant, v. Roger D. MYERS, Defendant-Appellee. Margaret E. Carter VAN LUE, Shawn R. Carter Allen, Plaintiffs-Appellants, v. Roger D. MYERS, Defendant-Appellee. Clinton W. NAUGLE, Plaintiff-Appellant, v. Roger D. MYERS, Defendant-Appellee. A 9.
CourtIndiana Appellate Court

Trent Thompson, Allen & Thompson, Salem, for plaintiffs-appellants.

John W. Mead, Mead, Mead & Mead, Salem, Roland M. Lowell, Buck, Baker & Baker, Nashville, Tenn., for defendant-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

George Suyemasa (Suyemasa), Margaret Carter Van Lue (Van Lue), Shawn Carter Allen (Allen), and Clinton Naugle (Naugle) appeal the trial court's judgment which granted Roger Myers' (Myers) motion to dismiss in each action. 1 We reverse and remand.

STATEMENT OF THE FACTS

In March of 1969 Elizabeth Trinkle, Bernice Harris, Jane Suyemasa, and Van Lue In April of 1969 Myers was in Indiana visiting his family. While he was in Salem, he talked to his uncle, Pete Jackson, about Boone's Favorite Foods stock. Myers then accompanied Pete Jackson to Naugle's house in Salem. Naugle testified that Myers explained to him the stock market and the stock of Boone's Favorite Foods and inquired whether Naugle wanted to purchase any of the stock at ten dollars ($10.00) per share. Naugle replied that he would think about buying the stock. Soon after the meeting, Naugle received a letter from Myers encouraging him to buy the stock. On April 12, 1969, Naugle wrote to Myers that he would buy three hundred (300) shares of Boone's Favorite Foods stock for three thousand dollars ($3,000.00). Myers cashed the check and sent to Naugle a written promise to transfer three hundred (300) shares of Boone's Favorite Foods stock. Approximately three weeks later, Myers returned to Naugle's home to sell him ten thousand dollars ($10,000.00) more stock in Boone's Favorite Foods; however, Naugle was not interested in any more stock since he had not received the three hundred (300) shares of stock for which he had already paid. Myers then requested some names of individuals who would be interested in buying the stock. Naugle stated that he did not know of anyone who would be interested. Since he never received the stock of Boone's Favorite Foods, Naugle filed this action on March 4, 1977, against Myers for breach of contract.

visited Nashville, Tennessee. While they were in Nashville, they visited with Myers and his family. On that day some discussion took place about shares of stock in Pat Boone's Favorite Foods of America Enterprise, Incorporated (Boone's Favorite Foods) which was a Tennessee corporation. Myers had recently agreed to purchase some of the stock and was very excited about it.

In May 1969 Myers was once again in Salem, Indiana, to visit his family. On that day Myers visited Suyemasa and informed him that he (Myers) could obtain some founder's stock in Boone's Favorite Foods. Myers quoted a price of ten dollars ($10.00) per share to Suyemasa and asked how many shares Suyemasa wanted to buy. Suyemasa replied that he would purchase about four hundred (400) shares; however, Suyemasa did not pay Myers for the stock at that time. Approximately one week later, Suyemasa sent a letter to Myers thanking him for the information about Pat Boone's enterprise and requesting two thousand four hundred (2400) shares of stock at a price of ten dollars ($10.00) per share. Myers cashed the check and sent to Suyemasa a written promise to transfer two thousand four hundred (2400) shares of stock in Boone's Favorite Foods. Suyemasa never received the shares of stock and brought this action on January 27, 1977, against Myers for breach of contract.

On the same day when Myers visited Suyemasa, he also talked to Van Lue and Allen at Van Lue's home in Salem about the stock of Boone's Favorite Foods. Van Lue contends she reached an agreement with Myers on that day that she would buy two hundred (200) shares of Boone's Favorite Foods at ten dollars ($10.00) per share. She testified that she gave Myers a check for two thousand dollars ($2,000.00) on that day and later sent another check for two thousand dollars ($2,000.00). Myers, however, contends that Van Lue sent him two checks for two thousand dollars ($2,000.00) at the same time. Myers sent to Van Lue and Allen written promises to transfer two hundred (200) shares of stock to each. Since Van Lue and Allen did not receive the stock, they filed this action against Myers on January 27, 1977, for breach of contract.

Myers filed a motion to dismiss in each action alleging the Washington County Circuit Court lacked subject matter jurisdiction and personal jurisdiction over him; that there was lack of sufficiency of process and service of process; that the cause of action was barred by the statute of limitations; and that the plaintiffs had failed to join an indispensable party. Affidavits in support of the motions to dismiss were filed by Myers. The trial court held a hearing on the motions and heard testimony from the appellants. The trial court sustained "The Court heretofore heard testimony and took evidence on Defendant's Motion to Dismiss, and took the same under advisement. The Court having considered said matters and now being duly advised in the premises, does now make the following findings of fact, conclusions of law and orders:

Myers' motion and entered the following judgment: 2

FINDINGS OF FACT

1. That the Plaintiff is a resident of the State of Indiana.

2. That the Defendant is a resident of the State of Tennessee.

3. That on or about the 5th day of May, 1969, the Plaintiff and the Defendant entered into a contract for the sale of certain shares of stock in Favorite Foods of America Enterprises, Inc.

4. That this suit was filed on the 27th day of January, 1977, more than seven years after the execution of the contract.

5. That the contacts leading to the execution of the contract were initiated by the Plaintiff in the State of Tennessee.

6. That the final act resulting in the contract was the receipt by the Defendant of the consideration for such contract and the execution of it by the Defendant, all in the State of Tennessee.

7. That the terms of such contract are partly in writing and partly oral, the consideration for such contract being oral.

8. That by Plaintiff's testimony performance under the contract should have been completed within three months of the date of execution.

9. That the Defendant was not doing business in the State of Indiana.

10. That the Defendant has done no act in the State of Indiana which would subject him to jurisdiction under T.R. 4.4.

CONCLUSIONS OF LAW

1. That the law is with the Defendant and against the Plaintiff.

2. That the Court lacks jurisdiction of the Defendant.

3. That the contract is an oral contract.

4. That this contract is governed by the laws of the State of Tennessee.

5. That the Court lacks subject matter jurisdiction.

6. That this cause of action is barred by the statute of limitations.

ORDER

1. That Plaintiff's Motion to Strike is now denied.

2. That the Defendant's Motion to Dismiss is now granted.

3. That the Defendant shall recover his costs herein expended in the sum of $ None ."

ISSUES

1. Whether the trial court erred in finding that it lacked subject matter jurisdiction.

2. Whether the trial court erred in finding that it lacked personal jurisdiction over Myers.

3. Whether the trial court erred in finding these actions to be barred by the statute of limitations.

DECISION
Issue One

The appellants allege the trial court erred in deciding it lacked subject matter jurisdiction. They state the causes of action sound in contract, and therefore, the trial court has jurisdiction since it is a court of general jurisdiction. Myers contends this issue has been waived and the judgment should be affirmed since the appellants failed to cite any authority in support of their position on this issue. While this court has affirmed the trial court's judgment when the appellant has failed to cite authority in support of his or her argument, see Kerkhof v. Dependable Delivery, Inc., (1975) 167 Ind.App. 248, 338 N.E.2d 513, we prefer to decide cases on their merits when possible. Mathews v. Mathews, (1972) 151 Ind.App. 70, 278 N.E.2d 325. Since we can comprehend the proposition advanced by appellants under this issue and their argument is well-taken, we will discuss the merits of this issue.

Myers contends the Washington Circuit Court did not have subject matter jurisdiction. He states the trial court would have subject matter jurisdiction of these cases if the last act necessary to full and complete formation of the contract was done in Indiana and cites us to Equitable Life Assurance Society of the United States v. Perkins, (1907) 41 Ind.App. 183, 80 N.E. 682, trans. denied (1908) and W. H. Barber Co. v. Hughes, (1945) 223 Ind. 570, 63 N.E.2d 417. The citation of those cases for the proposition which Myers advances is erroneous. Equitable Life and Barber did not involve the subject matter jurisdiction of the trial courts. The issue before the appellate court in each case concerned the choice of substantive law to be applied by the trial court as reflected by the statement of this court in Equitable Life Assurance Society of the United States v. Perkins, supra, at 187, 80 N.E. 682, that "(w)hen the parties are separated, the rule is that the law of the place where the last act necessary to full and complete formation of the contract is done is the law of the contract ..." (emphasis added). In contrast, "(t)he question of subject matter jurisdiction concerns whether the court does or does not have jurisdiction of the general subject or the general class of cases to which the particular action belongs." Brendanwood Neighborhood Association, Inc. v. Common Council of City of Lebanon, (1975) 167 Ind.App. 253, 255, 338 N.E.2d 695, 696, trans....

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