BROWN, Judge.
Cynthia Foley appeals the trial court's grant of a motion to dismiss filed by Robert Schwartz. Foley raises one issue, which we revise and restate as whether the trial court erred in dismissing Foley's complaint on the basis that the court did not have personal jurisdiction over Schwartz. We reverse and remand.
The relevant facts follow.
In June 2007, Foley hired Schwartz, an attorney who was a resident of Ohio and licensed to practice law in Ohio but not Indiana, for representation in connection with the ATV accident. Schwartz sent a letter dated June 14, 2007, to Foley at her Cincinnati, Ohio address which stated in part:
Id. at 247-248. That same day, Schwartz sent a letter to Lazar Iglendza with State Farm Insurance Company, Collins's insurance provider, notifying Iglendza that he was representing Foley in the matter and asking Iglendza to phone him "to explain the type of insurance and the policy limits" of the policy. Id. at 250. The letter was addressed to a post office box in Bloomington, Illinois, but Iglendza worked in Indianapolis, Indiana and his mail was "electronically scanned and forwarded" to him in Indianapolis. Id. at 172. Also, Schwartz wrote a letter dated June 19, 2007, to Foley at her Cincinnati address explaining his fee agreement "in `more English
On June 26, 2007, Foley and Schwartz signed a Contract for Contingent Fee Accident Case which stated in part:
Id. at 256.
Schwartz sent a letter dated September 27, 2007, containing a payment of $121.10 to Midwest Medical Copy Service, Inc, in Leo, Indiana, for records pertaining to Foley.
Schwartz sent letters dated February 27, 2008, to David Zerbe and Lana Swingler, both attorneys practicing in Indiana, asking if they were interested in joining as co-counsel on Foley's behalf and proposing that they would receive three-fourths of whatever compensation the case provided, with Schwartz taking one-fourth. The letters both stated:
Id. at 288, 290. Schwartz also sent a similar letter to Alan Trenz who was an attorney residing in Cincinnati, Ohio, but was licensed to practice law in Indiana.
Schwartz sent a letter dated March 5, 2008, to Linda Elam in Florence, Indiana, which stated that "[a] work crew had recently replaced the sewage drain pipes at 98 Swanson Road, prior to the incident of May 27, 2007. . . . Please let me know if your company has ever done work at the above address." Id. at 294. Schwartz sent a letter dated March 27, 2008, to a person in Florence, Indiana with an enclosed payment of $300.00 for her "investigation." Id. at 297. He sent a letter dated March 31, 2008, to the County Highway Department in Florence, Indiana (the "Highway Department"), asking it to "[k]indly direct this letter to your insurance carrier so that a claim may be made." Id. at 298. Schwartz sent another letter dated April 23, 2008, to the Highway Department stating that "[w]e have had no response" regarding the March 31, 2008 letter, and asking to "[p]lease contact us within 5 days, to advise us of your insurance company or as to how you will be handling this claim." Id. at 299.
At some point "in the later stages of the case" Schwartz contacted Gregory Coy, who at that time was the attorney for
Schwartz sent a letter dated April 29, 2008, to Stan White, an attorney located in Indianapolis, Indiana, which stated:
Id. at 300.
Id. at 304-305.
On May 1, 2008, Foley terminated Schwartz's employment as her representative, and on that same day Schwartz sent a letter to Foley at her Cincinnati, Ohio address, stating in part:
Id. at 306. Schwartz drafted a letter dated May 5, 2008, to William Kelley of the law firm Craig, Kelley & Faultless in Batesville, Indiana, indicating that "[p]rior to [Kelley's] letter of May 1, 2008, [Schwartz] was not aware that [Kelley's] office was retained," and that Schwartz would forward his documents related to Foley's case to Kelley. Id. at 307. Schwartz drafted another letter to Kelley dated May 7, 2008, in which he indicated that he was sending Foley's "entire file."
On November 7, 2008, Foley filed a complaint against Schwartz and Collins alleging Count I, legal malpractice against Schwartz for failure to preserve her claim against Switzerland County by failing to file a tort claim notice before November 24, 2007
Id. at 109-110.
On June 26, 2009, the court held a hearing and entered an order taking Schwartz's motion to dismiss under advisement, among other things.
On December 22, 2009, Foley filed an objection and brief in opposition to Schwartz's motion to dismiss. In addition to the deposition of Schwartz, Foley attached the affidavits of Lana Swingler and John Stroup, among others. Swingler's and Stroup's affidavits related to the case of "In the Matter of the Estate of Sharon Gilbert, deceased, filed in the Dearborn Circuit Court, cause number 15C01-0612-ES-39," and alleged that Schwartz did legal work on behalf of Sharon Gilbert's estate in which he had contacts with Indiana between 2004 and 2005. Id. at 206. On February 4, 2010, Schwartz filed a reply in support of his motion to dismiss arguing that "most of the alleged `minimum contacts' cited by Foley are irrelevant to the personal jurisdiction analysis," and that "Schwartz's contacts with Indiana are not so substantial, continuous, and systematic that he should reasonably have anticipated being haled into an Indiana court for any matter." Id. at 438, 443.
On April 19, 2010, the court held a hearing on Schwartz's motion to dismiss, and on May 19, 2010, the court entered a final judgment granting the motion.
The sole issue is whether the trial court erred in dismissing Foley's complaint on the basis that it did not have personal jurisdiction over Schwartz. "Personal jurisdiction is a question of law . . . ." LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind.2006) (quoting Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind.2000)). "Because Indiana state trial courts are courts of general jurisdiction, jurisdiction is presumed." Everdry Mktg. and Mgmt., Inc. v. Carter, 885 N.E.2d 6, 10 (Ind.Ct.App.2008). "The
"The Due Process Clause of the Fourteenth Amendment requires that before a state may exercise jurisdiction over a defendant, the defendant must have `certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'"
In cases where a defendant is not subject to general jurisdiction in a forum state, "specific jurisdiction may be asserted if the controversy is related to or arises out of the defendant's contacts with the forum state." Id. "Specific jurisdiction requires that the defendant purposefully availed itself of the privilege of conducting activities within the forum state so that the defendant reasonably anticipates being haled into court there." Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Also, "[a] single contact with the forum state may be sufficient to establish specific jurisdiction over a defendant, if it creates a `substantial connection' with the forum state and the suit is related to that connection." Id. (citing McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). "But a defendant cannot be haled into a jurisdiction `solely as a result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person.'" Id. (quoting Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal quotation marks omitted) (citing Helicopteros, 466 U.S. at 417, 104 S.Ct. 1868; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980))).
Once either general or specific jurisdiction has been established, "due process requires that the assertion of personal jurisdiction over the defendant is reasonable." Id. However, "[t]he assertion of
Id. at 968 (citing Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174).
Foley argues that Indiana has personal jurisdiction over Schwartz under both specific and general jurisdiction analyses. With respect to specific personal jurisdiction, Foley argues that the trial court erred in its application of Everdry which states that "[i]n a litigation context, `[f]or purposes of specific jurisdiction, contacts should be judged when the cause of action arose.'" Appellant's Brief at 31 (quoting Everdry, 885 N.E.2d at 13 (quoting Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d 59, 66 (1st Cir.2002))). The trial court, in applying this statement from Everdry, noted that "[t]his rule comports with the Due Process Clause's requirement that individuals have `fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign.'" Appellant's Appendix at 18 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174 (quoting Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring))). The court continued that "the fair warning that due process requires arises not at the time of the suit, but when the events that gave rise to the suit occurred." Id. (citing Helicopteros, 466 U.S. at 414 n. 9, 104 S.Ct. 1868). Thus, the court concluded that the "operative date of inquiry" regarding Schwartz's contacts with Indiana should be evaluated as of November 23, 2007, which was "the date that the Tort Claim Notice should have been filed, if at all." Id. at 19. The court found that the "only alleged minimum contacts pertinent to the specific jurisdiction inquiry . . . are (1) his general knowledge that the ATV accident occurred in Indiana; and (2) Internet legal research conducted on Indiana Law," and it deemed these contacts insufficient. Id.
However, we find that the court erred in its determination of when the cause of action arose. Indiana has adopted the "continuous representation doctrine" for legal malpractice actions. Biomet Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 767 (Ind.Ct.App.2003), trans. denied. This doctrine, which constitutes an exception to the discovery rule governing the statute of limitations, provides that "[i]n a situation where the attorney continues to represent the client in the same matter in which the alleged malpractice occurred, the date of accrual begins at the termination of an attorney's representation of a client in the same matter in which the alleged malpractice occurred." Id. As noted in our case law governing legal malpractice, a cause of action is deemed "complete" only after it accrues. See Basinger v. Sullivan, 540 N.E.2d 91, 92-93, 92 n. 1 (Ind.Ct.App.1989) (interpreting a former version of Indiana's statute of limitations
One of the primary policy objectives cited in Biomet for adopting the continuous representation doctrine applies with equal force in this context because "a client is not required to constantly second-guess the attorney, and in some cases, be forced to obtain other legal opinions regarding the attorney's handling of the case." Biomet, 791 N.E.2d at 766. Also, we do not believe that this rule runs afoul of Burger King's requirement that a defendant have a "fair warning that a particular activity may subject [him] to the jurisdiction of a foreign sovereign. . . ." 471 U.S. at 472, 105 S.Ct. at 2182 (quoting Shaffer, 433 U.S. at 218, 97 S.Ct. at 2587). The basis of the "fair warning" requirement under the Due Process Clause is to give "a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Id. (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567).
Here, Schwartz contracted with Foley to represent her in "all claims arising out of said accident claim or incident," which occurred in Switzerland County, Indiana. Appellant's Appendix at 256. Thus, it was predictable or foreseeable that, if Schwartz committed malpractice in handling Foley's Indiana claim, he may be haled into an Indiana court on a legal malpractice action.
The record reveals that, in representing Foley, Schwartz made a multitude of contacts and purposefully availed himself of the privilege of conducting activities in Indiana. In separate letters dated February 27, 2008 to Dave Zerbe and Lana Swingler, attorneys practicing in Indiana, Schwartz solicited each of their services and proposed that they receive three-fourths of whatever compensation would be provided, with Schwartz keeping one-fourth.
On March 31, 2008, Schwartz sent a letter to the Highway Department asking for the letter to be directed to its insurer "so that a claim may be made." Id. at 298. On April 23, 2008, Schwartz sent another letter to the Highway Department indicating that he had not received a response to his previous letter and asking that the department contact him within five days. Schwartz also sent letters to Stan White on April 29, 2008 and April 30, 2008, discussing a possible lawsuit and proposing that White would take five-sixths of any
Schwartz also phoned Gregory Coy, who was the attorney for Switzerland County and the two spoke about a possible claim Foley had against the County. As part of the conversation, Coy discussed the fact that the County was immune to suit because it had not received notice within 180 days pursuant to Ind.Code § 34-13-3-8 of the Indiana Tort Claims Act.
Based upon these contacts, we find that Schwartz had sufficient minimum contacts with Indiana to confer specific personal jurisdiction.
Schwartz brings two federal cases to our attention which he contends demonstrate that he did not have the requisite minimum contacts with Indiana to find specific personal jurisdiction. First, he cites to Sawtelle v. Farrell, 70 F.3d 1381, 1386-1387 (1st Cir.1995), which he summarizes as holding that "the defendant was not subject to in personam jurisdiction because an attorney-client relationship without more does not confer jurisdiction." Appellee's Brief at 21. In Sawtelle, however, the clients, New Hampshire residents, sued their Virginia- and Florida-based attorneys in a New Hampshire court based
Schwartz also cites to Kaempe v. Myers, No. IP 01-0424-C-H/K, 2001 WL 1397291 at *9 (S.D.Ind. Nov. 6, 2001), which he notes held that "in personam jurisdiction did not exist in Indiana over a Washington D.C. patent lawyer who was hired by an Indiana resident to prepare a patent application for an invention." Appellee's Brief at 22. Kaempe involved a patent lawyer who resided in Washington, D.C. who was hired by Kaempe and his partner to help file a patent application with the United States Patent and Trademark Office in Washington, D.C. Kaempe, 2001 WL 1397291, at *1. The attorney's only contact with Indiana was four or five telephone calls to Kaempe's residence and e-mails to Kaempe at the address "kaempe@kiva. net." Id. at *2. We find Kaempe distinguishable.
This does not end our inquiry, however. Having determined that Schwartz was subject to Indiana jurisdiction, we must determine whether it is reasonable for him to be haled into an Indiana court. As noted above, the United States Supreme Court has set forth five factors which we must balance in determining reasonableness; however, the Indiana Supreme Court in LinkAmerica noted that "[t]he assertion of personal jurisdiction will rarely be found unreasonable if `minimum contacts' are found." 857 N.E.2d at 967. The five Burger King factors, as presented by LinkAmerica, to determine reasonableness are: (1) the burden on the defendant; (2) the forum State's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies.
First, regarding the burden on Schwartz, the trial court stated in its order that "Schwartz is a resident of Ohio, is licensed to practice law in the State of Ohio, and does not generally engage in doing business in Indiana," in finding that a "substantial burden" would be placed on Schwartz. Appellant's Appendix at 22. However, Foley points out that Schwartz testified that he has visited Vevay, Indiana, where the Switzerland County Circuit Court is located, to attend casinos twice, and he has visited casinos in Indiana about twice a year over the past ten years. Schwartz testified that "[i]t took more than an hour" to drive to Vevay and that he was prepared to drive to Indianapolis to visit White. Id. at 392. Thus, we conclude that Schwartz would not be significantly burdened were he to stand trial in Indiana.
Second, in examining Indiana's interest in adjudicating the dispute, the court stated that "Indiana has little, if any, interest in adjudicating this dispute, inasmuch as the case involves an Ohio counsel and an Ohio resident." Id. at 22. However, we note that the accident occurred in Indiana, and it is a provision of Indiana's Tort Claims Act which brought about the alleged malpractice by Schwartz. Schwartz was soliciting Indiana attorneys to file a suit in Indiana. We find that Indiana has an interest in adjudicating the dispute.
Third, in evaluating Foley's interest in obtaining convenient and effective relief, we note that Foley's action also names Collins and Bastin, and any action against them would be addressed in the Switzerland
Fourth, regarding the interstate judicial system's interest in obtaining the most efficient resolution of controversies, again we note that the accident underlying Foley's legal malpractice claim occurred in Indiana. It was a function of Indiana law which subjected Schwartz to legal malpractice, and his failure to file a notice with Switzerland County on or before November 23, 2007 should be judged based upon Indiana malpractice standards.
Finally, as to the fifth factor, Foley argues that a trial in Indiana would further fundamental social policies because it is important to hold "professionals responsible for their negligence, particularly if they are practicing law in a forum state without a proper license." Appellant's Brief at 39. Schwartz responds that "[t]his argument. . . fails to explain why the same policy would not equally—if not, more so—be furthered in an Ohio court" because Foley is an Ohio resident and Schwartz an Ohio attorney. Appellee's Brief at 32. Because Indiana law applies to the issues involved in the accident, however, we agree with Foley that this case is appropriate for an Indiana court.
After balancing all the factors, we conclude that Schwartz has failed to persuade us that it would be unfair and unreasonable for an Indiana court to exercise jurisdiction over him. Overall, we conclude that exercising jurisdiction over Schwartz would not offend notions of fairness and reasonableness. Accordingly, the court erred when it granted Schwartz's motion to dismiss for lack of personal jurisdiction.
For the foregoing reasons, we reverse the trial court's grant of Schwartz's motion to dismiss and remand for further proceedings.
Reversed and remanded.
DARDEN, J., and BRADFORD, J., concur.
The record also contains a letter from Schwartz dated March 10, 2008, which states: "Confidentially, I will be asking you to try to find the contractor or responsible party that abandoned the pipe shown in the enclosed photograph." Id. at 296. However, the name and address of the recipient have been redacted.
Also, Schwartz sent letters to Iglendza on June 14, June 19, and December 10, 2007, and on February 14, 2008 which were scanned and emailed to Iglendza in Indianapolis.
. . . [I]f the Supreme Court were to clarify the rationale underlying the minimum contacts requirement, it would be far easier to come up with a coherent set of principles on the timing of minimum contacts. If the minimum contacts requirement is based upon a social contract theory that requires a relationship between the forum state and the defendant before the defendant may be subjected to the jurisdiction of the state's court system, then it would seem appropriate to measure contacts at the time the claim arose. . . . If the requirement is really an element of interstate federalism, then the date of the complaint seems to be the most relevant time. . . . Finally, if the minimum contacts requirement is really just a rough proxy for convenience, then the date when a court decides the personal jurisdiction motion is the key time because, if by that time the defendant has sufficient contacts with the forum state to make litigation fair and convenient, then there is no reason for the court not to proceed.
Id. at 149-150 (footnotes omitted).