Weenig v. Wood, 2--974A228

CourtCourt of Appeals of Indiana
Citation349 N.E.2d 235,169 Ind.App. 413
Docket NumberNo. 2--974A228,2--974A228
PartiesHarry M. WEENIG, Appellant-Cross Appellee (Defendant below), v. Mark A. WOOD, Appellee-Cross Appellant (Plaintiff below).
Decision Date21 June 1976

Page 235

349 N.E.2d 235
169 Ind.App. 413
Harry M. WEENIG, Appellant-Cross Appellee (Defendant below),
v.
Mark A. WOOD, Appellee-Cross Appellant (Plaintiff below).
No. 2--974A228.
Court of Appeals of Indiana, Second District.
June 21, 1976.
Rehearing Denied July 20, 1976.

[169 Ind.App. 416]

Page 238

James L. Beattey, Frederick J. Graf, Indianapolis, for appellant.

Stephen Goldsmith, Edward O. DeLaney, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellee.

SULLIVAN, Judge.

Plaintiff Mark A. Wood filed this action for damages against Harry M. Weenig and a corporation of which Weenig was president, G. P. International, Inc., for allegedly defamatory statements made by Weenig on at least nine different occasions from February to April of 1971. The substance of the suit was that Weenig, then president and a director of Markway Press, Inc., publicly accused Wood, then [169 Ind.App. 417] a shareholder, director and employee of Markway Press, of embezzling funds from the company.

The claim against G.P. International, Inc., was dismissed pursuant to Ind.Rules of Procedure, Trial Rule 41(A). The suit against Weenig was tried to a jury. The jury awarded Wood $150,000 actual damages and $50,000 punitive damages. The trial court reduced this award as 'excessive' to $25,000 actual damages, $5,000 punitive damages, and entered judgment for Wood for the reduced amount. Both parties appeal. Weenig complains of the procedures followed below, of certain instructions, of the sufficiency of the evidence, and of the proof of damages. Wood alleges error in the trial court's reduction of the jury's award of damages. By Order dated October 18, 1974, the two appeals were consolidated. The issues, arguments

Page 239

and facts related thereto are considered in order as follows:

I.

NO REVERSIBLE ERROR IN TRIAL COURT'S REFUSAL TO GRANT

WEENIG'S TR. 12(B)(2) MOTION TO DISMISS

Prior to filing an answer, Weenig moved to dismiss Wood's complaint for lack of jurisdiction over his person pursuant to Ind.Rules of Procedure, Trial Rule 12(B)(2). In the motion Weenig noted that he had been served by registered mail at his residence in Salt Lake City, Utah. Weenig complains that '(t)here is no showing in the pleadings that the same are based upon any injury or damage by an act or omission done within this state as required by Trial Rule 4.4 of the Indiana Rules of Procedure'. We hold that the trial court's overruling of Weenig's motion does not present cause for reversal.

Wood contends that the court below had jurisdiction of Weenig's person under the terms of TR. 4.4(A), which states in part, that:

'(A) Acts serving as a basis for jurisdiction. Any person or organization that is a nonresident of this state, a resident[169 Ind.App. 418] 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;

(3) causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed, or rendered in this state; . . ..'

Wood argues that since the evidence demonstrates that Weenig uttered most of the defamatory statements in Indiana, the trial court had jurisdiction of Weenig's person under TR. 4.4(A)(2). See Neill v. Ridner (1st Dist. 1972), 153 Ind.App. 149, 286 N.E.2d 427. Wood's argument is correct so far as it goes, but it does not resolve the issue because Weenig's contention is that we must reverse, and the court below should have dismissed Wood's claim at the initial stage, because the pleadings did not show that Wood's action arose from any of the acts specified in TR. 4.4(A).

Under our law as it existed prior to adoption of the current Indiana Rules of Procedure, it was not necessary for a plaintiff to allege in his complaint facts disclosing that jurisdiction of the person of the defendant could be obtained by the mode of service of summons which was to be employed. A demurrer to a complaint upon grounds of lack of jurisdiction of the person was deemed appropriate only where the lack of jurisdiction appeared affirmatively upon the face of the complaint. Ind.Ann.Stat. § 2--1007 (Burns 1967). Delaware Township v. Board of Commissioners of Ripley County (1901), 26 Ind.App. 97, 59 N.E. 189; Gavit, Indiana Pleading and Practice § 125 (1950). If the record were to demonstrate, however, e.g., as by the sheriff's return, that jurisdiction had not been acquired, the defendant might by special appearance and motion to quash summons or the return thereon, or by [169 Ind.App. 419] verified answer attack the jurisdiction of the court over his person. See 1 Wiltrout, Indiana Practice § 126, 384 and 408. If such defect did not appear of record, the defendant before appearing generally or pleading to the merits was required to raise the question by affirmatively pleading it in an answer in abatement. See 1 Wiltrout, Indiana Practice §§ 126, 384, 408 and 472(8). The defendant,

Page 240

of course, bore the burden of proof upon such answer in abatement. Greis v. Herbert (1940), 108 Ind.App. 369, 27 N.E.2d 924; Henwood v. State ex rel Streiby (1895), 11 Ind.App. 636, 39 N.E. 289.

The current rules of practice, of course, have abolished the special appearance, the demurrer, and the answer in abatement. Such changes are not, however, of meaningful significance in this case for nothing in the current Indiana Rules of Procedure indicates an intended abandonment of the prior well established law as set forth in First Bank of Valparaiso v. Crumpacker (1950), 120 Ind.App. 317, 323, 90 N.E.2d 912, 915 quoting from Galpin v. Page (1873), 85 U.S. 350, 21 L.Ed 959:

"It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject matter of the action in which the judgment is given, but of the parties also. The former will generally appear from the character of the judgment and will be determined by the law creating the court or prescribing its general powers. The latter should regularly appear by evidence in the record of service of process upon the defendant or his appearance in the action. But when the former exists, the latter will be presumed. This is familiar law, and is asserted by all the adjudged cases. . . . But the presumptions, which the law implies in support of the judgments of superior courts of general jurisdiction, only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed."

[169 Ind.App. 420] Accordingly, we determine that plaintiffs now, as formerly, are not required to make jurisdictional allegations in the complaint.

Thus, under present law, when Ind. Rules of Procedure, Trial Rule 12(B)(2) is read in conjunction with Trial Rule 8 (C), it is apparent that a defendant at his option might now present his jurisdictional claim either by resort to the affirmative defense enumerated in TR. 8(C) or by motion pursuant to TR. 12(B) (2). 1 Harvey, Indiana Practice, Author's Comments 12.2, p. 605, and 4.4(A) (viii), p. 313.

TR. 8(C) provides in part as follows:

'(C) Affirmative defenses. A responsive pleading shall set forth affirmatively and carry the burden of proving: . . . lack of jurisdiction over the person, . . . and any other matter constituting an avoidance, matter of abatement, or affirmative defense. A party required to affirmatively plead any matters, including matters formerly required to be pleaded affirmatively by reply, shall have the burden of proving such matters.'

TR. 12(B)(2) provides insofar as pertinent as follows:

'(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:

(2) Lack of jurisdiction over the person,'

TR.12(H)(1) is also indicative of the option available to the defendant. It states in part:

'(H) Waiver or preservation of certain defenses.

Page 241

(1) A defense of lack of jurisdiction over the person, . . . is waived to the extent constitutionally permissible

(b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course.'

[169 Ind.App. 421] In any event, and notwithstanding the particular procedural vehicle used by a defendant to attack jurisdiction over his person, he bears the burden of proof upon that issue, unless, of course, the lack of jurisdiction is apparent upon the face of the complaint itself.

The caption of Wood's complaint designates as defendants 'Harry M. Weenig, and G.P. International, Inc., an Indiana Corporation . . ..' (Emphasis supplied). The first paragraph of the complaint avers that Weenig 'is president and chief executive officer of defendant G.P. International, Inc.'. The second paragraph alleges that '(a)cting individually and in his capacity as president of G.P. International, Inc., defendant Harry M. Weenig on various occasions . . . stated and published to various third persons (the alleged defamatory statements).' (Emphasis supplied). It would not be...

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