Tom-Wat, Inc. v. Fink

Decision Date12 January 2001
Docket NumberNo. 31S01-0101-CV-28.,31S01-0101-CV-28.
Citation741 N.E.2d 343
PartiesTOM-WAT, INC., d/b/a W.A. International, Appellant (Plaintiff Below), v. George FINK, d/b/a, GF Associates, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

George M. Plews, Thomas A. John, Indianapolis, Indiana, Attorneys for Appellant.

Gordon D. Ingle, Corydon, Indiana, Attorney for Appellee.


BOEHM, Justice.

We grant transfer in this case to reiterate the correct standard and process for deciding issues of personal jurisdiction.

Factual and Procedural Background

Tom-Wat, Inc., doing business as W.A. International, is a Connecticut corporation based in that state. George Fink, d/b/a GF Associates, is a sole proprietorship with its principal place of business in Corydon, Indiana. In 1987, Fink ordered goods from Tom-Wat worth $28,947.45. When Fink failed to pay for all of the goods, Tom-Wat filed suit in Connecticut and obtained a default judgment against Fink. On September 7, 1994, Tom-Wat filed suit in Harrison Circuit Court to enforce its Connecticut judgment.

On October 31, Fink filed an answer to the complaint and also moved to dismiss based on lack of personal jurisdiction of the Connecticut court. He accompanied this motion with a conclusory affidavit that stated that he had never done business in Connecticut, but supplied no specifics. Because this motion was supported by an affidavit, it was properly viewed as a motion for summary judgment on the ground that the judgment on which Tom-Wat based its complaint was defective. Ind.Trial Rule 12(B).

On December 5, Tom-Wat filed a response to Fink's motion with designations of material questions of fact. One month later, on January 4, 1995, Tom-Wat filed a cross-motion for summary judgment supported by a brief, designations, and an affidavit. Tom-Wat claimed that summary judgment was appropriate because it had a valid Connecticut judgment and there were no genuine questions of material fact as to whether Connecticut had jurisdiction over Fink.

On August 9, 1995, Tom-Wat requested a hearing on its motion for summary judgment. On November 11, 1997, Tom-Wat again requested a hearing, and one was set for February 1998, but Fink moved for a continuance and the hearing was reset for March 25. Two days before the hearing, Fink filed a designation of material questions of fact and two affidavits in opposition to Tom-Wat's motion for summary judgment. These affidavits established that Fink had placed the orders with Tom-Wat as a result of a face-to-face meeting in Louisiana and had never gone to Connecticut for any purpose. The trial court then continued the hearing on its own motion. On March 31, Tom-Wat filed a motion to strike the materials filed by Fink on March 23. There is no ruling in the record on this motion. The hearing occurred on May 15, but there is no record of the hearing because the transcript was lost by court personnel. On July 18, in a single order, the trial judge denied both Tom-Wat's motion for summary judgment and Fink's motion to dismiss and recused himself. He has since retired.

Tom-Wat filed an interlocutory appeal of the order denying the motions for summary judgment. The Court of Appeals held that "[l]ogic dictates . . . that one of the two parties should prevail: either the Connecticut court had jurisdiction over Fink or it did not." Tom-Wat, Inc. v. Fink, No. 31A01-9901-CV-31, 727 N.E.2d 1131 (Ind.Ct.App. May 3, 2000) (mem.). The court then remanded the case to the trial court to determine whether the Connecticut court had jurisdiction over Fink. Judge Kirsch dissented, contending that on this record it was established that the Connecticut court had no jurisdiction over Fink, and Fink was entitled to summary judgment.

I. The Issues on Appeal and Standard of Review

As a preliminary matter, we note that an interlocutory appeal raises every issue presented by the order that is the subject of the appeal. Harbour v. Arelco, Inc., 678 N.E.2d 381, 386 (Ind.1997). Because the interlocutory order denied both Tom-Wat's and Fink's motions, we must address both motions.

Tom-Wat contends that the trial court struck Fink's late-filed responses or, alternatively, if it did not, that it erred by failing to strike them. Tom-Wat then argues that, if Fink's affidavits are correctly stricken, no facts are presented in opposition to its motion. Therefore, because Fink has the burden of establishing a flaw in the Connecticut judgment, Tom-Wat's motion for summary judgment must be granted. The Court of Appeals determined that jurisdiction was either present or not, but remanded to the trial court to decide that issue because the record did not reveal the reasons for the trial court's decisions.

On appeal, the standard of review of a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Id.; Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). The review of a summary judgment motion is limited to those materials designated to the trial court. T.R. 56(H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). We must carefully review decisions on summary judgment motions to ensure that the parties were not improperly denied their day in court. Estate of Shebel ex rel. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind.1999).

As this Court recently held, "[p]ersonal jurisdiction is a question of law and, as such, it either exists or does not." Anthem Ins. Cos. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind.2000). If there is no factual dispute bearing on the jurisdictional issue, the appellate court will make a final determination with respect to a pure question of law or a mixed question of law and fact not involving disputed material facts. In this case, both Fink's and Tom-Wat's motions for summary judgment turn on whether personal jurisdiction existed in Connecticut. This presents a question of law because here the affidavits filed by the parties do not raise any factual disputes. Rather, to the extent they conflict, they do so only as to legal conclusions.

II. Motion to Strike

There is no ruling in the record on Tom-Wat's motion to strike Fink's late-filed affidavits and the trial court lost the transcript of the hearing on the motion. The parties dispute whether the motion was granted or taken under advisement at the hearing. Tom-Wat contends that the trial court erred by not granting its motion to strike Fink's filings in opposition to Tom-Wat's motion for summary judgment because Fink filed them more than three years after Tom-Wat filed its motion for summary judgment. Alternatively, Tom-Wat contends that the trial court did grant the motion to strike the late-filed affidavits as to Tom-Wat's motion, but not as to Fink's motion. Fink counters that it is within the trial court's discretion to accept late filings. Fink's attorney supplied an affidavit that stated that the trial court did not grant the motion to strike, but merely refused to receive live testimony at the hearing.

We accept the claims in both parties' appellate briefs as their good faith understanding of what the trial court did or did not do. However, we cannot resolve that dispute and there is no record that the trial court granted Tom-Wat's motion to strike. This Court recently held that, "[i]t is within the trial court's discretion to accept an affidavit filed later than the date specified in the rule." Indiana Univ. Med. Ctr. v. Logan, 728 N.E.2d 855, 858 (Ind.2000). This is based on the language of Trial Rule 56, which reads, "[t]he court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. . . . The Court, for cause found, may alter any time limit set forth in this rule." Therefore, it is clear that the trial court had the discretion to accept or reject the late-filed documents.

The one thing we do know is that the trial court denied both motions for summary judgment. There is no record of a grant of the motion to strike. Failing to strike the late affidavits was not an abuse of the trial court's discretion for several reasons. First, Fink filed an affidavit in support of his motion at the time he filed his motion. This affidavit, in conclusory terms, denied that Fink had done business in Connecticut. The late-filed affidavits can be viewed as merely supplementing Fink's timely-filed affidavit with specific facts. Moreover, the facts in Fink's second affidavits do not appear to be in genuine dispute, as nothing from Tom-Wat claims any activity by Fink in Connecticut. For these reasons, the trial court did not abuse its discretion in failing to strike Fink's affidavits in ruling on the motions for summary judgment.

III. Tom-Wat's Motion for Summary Judgment

Tom-Wat contends that the trial court erred by denying its motion for summary judgment because Fink did not meet his burden of proof of establishing that Connecticut did not have jurisdiction over him. Tom-Wat alleges in an affidavit that Fink had the following contacts with Connecticut: (1) Fink's credit application was returned to Tom-Wat in Connecticut; (2) Fink placed several orders with Tom-Wat; and (3) after Tom-Wat shipped the goods to Fink, Fink made two payments to Tom-Wat. Tom-Wat does not claim that Fink, or any employee or agent of Fink, was ever present in Connecticut. Fink responds that (1) he entered into a verbal agreement with Tom-Wat in Louisiana for the sale of a line of goods; (2) the goods were shipped to Corydon; (3) a Tom-Wat representative visited Fink in Corydon and inspected the goods; (4) Fink has never conducted any...

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