Bill J. Bowers v. Jack Weichman (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 8, 2015
• Docket: 45A04-1411-CT-515
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 08 2015, 9:20 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Rebecca L. Loeffler Tara K. Tauber H. Joseph Certain Rhett L. Tauber Kiley, Harker & Certain Tauber Law Offices Marion, Indiana Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bill J. Bowers, May 8, 2015

Appellant-Defendant, Court of Appeals Case No. 45A04-1411-CT-515 v. Appeal from the Lake Superior Court The Honorable Calvin D. Hawkins, Jack Weichman, Judge Appellee-Plaintiff Trial Court Cause No. 45D02-1301- CT-11

Bradford, Judge.

Case Summary [1] On September 27, 2010, Appellant-Defendant Bill J. Bowers and Appellee-

Plaintiff Jack Weichman attended a Chicago Bears/Green Bay Packers football

game at Soldier Field in Chicago. Both Bowers and Weichman watched the

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 1 of 12 game from the suite that belonged to Appellee-Defendant Horseshoe

Hammond, LLC (“Horseshoe”). At some point during the game, Bowers and

Weichman were involved in a physical altercation. As a result of the physical

altercation, Weichman claims that he suffered serious and permanent injuries to

his face.

[2] On August 2, 2012, Weichman filed suit against Bowers, Horseshoe, Appellee-

Defendant Monterrey Security Consultants, Inc., and Appellee-Defendant

Delaware North Companies Sportservices, Inc. (collectively, the

“Defendants”).1 Weichman subsequently amended his complaint to assert that

he suffered personal injuries as a result of the physical altercation with Bowers.

Bowers filed a motion to dismiss on April 4, 2013, claiming that the trial court

lacked personal jurisdiction over him. The trial court denied Bowers’s motion

to dismiss and certified the matter for interlocutory appeal.

[3] Bowers contends on appeal that the trial court erred in denying his motion to

dismiss. Upon review, we conclude that because the incident in question took

place in Illinois and Bowers did not have significant contacts with the State of

Indiana, we conclude that Indiana Courts do not have personal jurisdiction

over Bowers. Accordingly, we reverse the judgment of the trial court and

1 Monterrey Security Consultants, Inc. provided security services in the Horseshoe suite and Delaware North Companies Sportservices, Inc. provided food and beverage services in the Horseshoe suite.

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 2 of 12 remand to the trial court with an instruction to enter an order dismissing

Weichman’s claims against Bowers.

Facts and Procedural History [4] In the fall of 2008 Christina Herrera, the then-National Casino Marketing

Manager for Horseshoe, spoke to Jennifer Rivers from the Harrah’s Casino in

Las Vegas. Rivers indicated to Herrera that she had “a group of folks that

wanted to come and enjoy [Horseshoe’s] suite for the Packers/Bears’ game.”

Appellant’s App. p. 53. This group included Bowers, a resident of Wisconsin

who does not conduct business or own any real property in Indiana. Because

Bowers had never been to Horseshoe prior to Rivers’s request, Herrera looked

Bowers up in Horseshoe’s casino marketing system to verify that Bowers

qualified for the tickets. Herrera determined that Bowers, who had attained

“diamond player” status, qualified for the tickets. Appellant’s App. p. 60.

[5] After determining that the group, again including Bowers, qualified for the

tickets, Herrera reserved rooms at a hotel in Chicago for the group. In

exchange for the complimentary hotel room and tickets, “the understanding is

that [the group would] come to [Horseshoe] and play, and then [ ] pick up their

tickets on [Horseshoe] property.” Appellant’s App. p. 58. Upon picking up the

tickets in December of 2008, Bowers and his friends stayed at Horseshoe for

approximately six hours.

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 3 of 12 [6] Rivers again contacted Herrera about tickets to the Bears/Packers football game

in the fall of 2010. Bowers and his friends were again given complimentary

hotel rooms in Chicago and tickets to watch the football game from

Horseshoe’s suite. Similar to 2008, Bowers and his friends came to Horseshoe

to pick up the tickets. On this visit, the group stayed for approximately eight

hours. During their visit to Horseshoe, Bowers and his friends also received a

complimentary dinner at the restaurant located within Horseshoe.

[7] On September 27, 2010, Bowers attended a Chicago Bears game at Soldier

Field in Chicago as a guest of Harrah’s Las Vegas, sitting in Horseshoe’s suite.

Weichman and his girlfriend also attended the Chicago Bears game at Soldier

Field on September 27, 2010, and sat in Horseshoe’s suite. Throughout the

course of the game, the occupants of the suite were provided with alcoholic

beverages. Weichman claims that he and his girlfriend were harassed and

ridiculed by Bowers throughout the game. Weichman further claims that as the

game ended, Bowers physically battered him. As a result of this alleged

physical altercation, Weichman claims that he sustained serious and permanent

injuries to his face.

[8] On August 2, 2012, Weichman filed suit against the Defendants. Weichman

subsequently amended his complaint to assert that he suffered personal injuries

after being physically battered by Bowers in the Horseshoe suite at Soldier Field

in Chicago. Bowers filed a motion to dismiss on April 4, 2013, claiming that

the trial court lacked personal jurisdiction over him. On October 10, 2014, the

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 4 of 12 trial court denied Bowers’s motion to dismiss and certified the matter for

interlocutory appeal.

Discussion and Decision [9] Bowers contends that the trial court erred in denying his motion to dismiss

because Indiana courts do not have personal jurisdiction over him.

“Personal jurisdiction is a question of law....” Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind. 2000). As with other questions of law, a determination of the existence of personal jurisdiction is entitled to de novo review by appellate courts. Id. We do not defer to the trial court’s legal conclusion as to whether personal jurisdiction exists. Id. However, personal jurisdiction turns on facts, typically the contacts of the defendant with the forum, and findings of fact by the trial court are reviewed for clear error. Id. at 1238.

LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 965 (Ind. 2006).

[10] “When a person attacks the court’s jurisdiction over him, he bears the burden of

proof upon that issue by a preponderance of the evidence, unless the lack of

jurisdiction is apparent upon the face of the complaint.” Attaway v. Omega, 903

N.E.2d 73, 76 (Ind. Ct. App. 2009) (citing Lee v. Goshen Rubber Co., 635 N.E.2d

214, 215 (Ind. Ct. App. 1994), trans. denied). “When reviewing a motion to

dismiss for lack of personal jurisdiction, we apply a de novo standard of

review.” Id. (citing Dexter Axle Co. v. Baan USA, Inc., 833 N.E.2d 43, 48 (Ind.

Ct. App. 2005)). “However, personal jurisdiction turns on facts, typically

related to the defendant’s contacts with the forum, and findings of fact by the

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 5 of 12 trial court are reviewed for clear error.” Id. (citing LinkAmerica, 857 N.E.2d at

965).

[11] In Attaway, we explained that

[u]ntil fairly recently, determining personal jurisdiction in Indiana required an analysis under both Indiana Trial Rule 4.4 (Indiana’s long arm provision) and the federal due process clause. In 2006, however, our supreme court clarified that a 2003 amendment to Indiana Trial Rule 4.4(A) “was intended to, and does, reduce analysis of personal jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent with the Federal Due Process Clause.” Id. at 967. This federal due process analysis is well-settled. In International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945), the U.S. Supreme Court established that a nonresident defendant must have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Id. at 316, 66 S. Ct. 154 (citation and quotation marks omitted). The Court later clarified this test to mean that the nonresident defendant must engage in “some act by which [he] purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L.Ed.2d 1283 (1958).

Id.

[12] It is well-established that there are two types of personal jurisdiction, general

and specific. Id. “If the defendant’s contacts with the state are so ‘continuous

and systematic’ that the defendant should reasonably anticipate being haled

into the courts of that state for any matter, then he is subject to general

jurisdiction, even in causes unrelated to his contacts with the forum state.” Id.

(citing LinkAmerica, 857 N.E.2d at 967; Helicopteros Nacionales de Colombia, S.A.

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 6 of 12 v. Hall, 466 U.S. 408, 415 n.9 (1984)). The parties agree, as do we, that Bowers

is not subject to general jurisdiction in Indiana.

[13] Specific jurisdiction, on the other hand, “requires that the defendant has

purposefully availed himself of the privilege of conducting activities within the

forum state and that his conduct and connection with that state are such that he

should reasonably anticipate being haled into court there.” Id. (citing Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 474-75 (1985)). “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. at 77 (citing McGee v. Int’l Life Ins. Co.,

355 U.S. 220, 223 (1957)). However, “[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 Corp., 471 U.S. at 475).

[14] “If the defendant’s contacts with the forum state are sufficient to support a

finding of general or specific jurisdiction, due process requires that the assertion

of personal jurisdiction would comport with ‘fair play and substantial justice.’”

Id. (quoting Burger King Corp., 471 U.S. at 476).

To make this determination, the court may consider five factors: (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 shared policies. [Burger King Corp., at 476-77].

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 7 of 12 Id.

[15] In claiming that the trial court erred in denying his motion to dismiss, Bowers

argues that the facts of the instant matter are similar to those presented in

Rosowsky v. University of Colorado, 653 N.E.2d 146 (Ind. Ct. App. 1995), trans.

denied. Rosowsky, who at the time was a professor at Purdue University,

applied for a faculty position at the University of Colorado. 653 N.E.2d at 147.

Rosowsky interviewed for the position over the course of three days in April of

1993. Id. at 148. In May of 1993, the chair of the relevant department was

vacationing in Michigan. Id. The chair of the department set up a dinner

meeting with Rosowsky at a yacht club in Michigan City, Indiana. Id. During

this meeting, the chair of the department notified Rosowsky that he anticipated

that the department would be making an offer of employment. Id. In June of

1993, the University of Colorado sent Rosowsky an offer of employment. Id.

The terms of the offer made it clear that the offer was contingent upon approval

by the Board of Regents. Id. Rosowsky accepted the offer. Id. The Board of

Regents, however, did not approve of Rosowsky’s employment, and the offer of

employment was withdrawn. Id.

[16] Rosowsky subsequently filed a breach of contract suit against the University of

Colorado in Tippecanoe County, Indiana. Id. Upon review, we noted that the

University of Colorado is not generally engaged in business in Indiana, has no

registered agent, telephone facilities, bank accounts, or property in Indiana. Id.

at 149. Further, the majority of the contact between the University of Colorado

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 8 of 12 and Rosowsky consisted of letters and phone calls, which do not subject a non-

resident to jurisdiction in the state of the recipient. Id. The only contact that

took place in Indiana was a two-hour dinner meeting that was occasioned by

the fact that the department chair was vacationing in Michigan and was

available to meet Rosowsky at a mutually convenient location. Id. This

meeting fortuitously occurred in Indiana and could “just as easily have

occurred in a restaurant in Michigan instead of in an Indiana border city.” Id.

Based on these circumstances, we concluded that “[a] single visit by an agent to

the forum state for social and business discussions does not subject the

nonresident to jurisdiction in that state when the visit is incidental to an agent’s

trip to another state.” Id.

[17] Weichman, for his part, argues that the facts of the instant matter are more

similar to those presented in Attaway. In Attaway, we considered whether

Indiana courts had personal jurisdiction over two residents of Idaho, the

Attaways, who had entered into an agreement over eBay to purchase a vehicle

from two residents of Indiana. Id. at 75. After receiving the vehicle, the

Attaways filed a claim with PayPal (the online payment service owned by eBay

which was used to submit payment for the vehicle), asking for a refund. Id. In

requesting a refund, the Attaways claimed that the vehicle was “significantly

not-as-described in its eBay listing.” Id. (internal record quotation omitted).

After the Attaways took possession of the vehicle and rescinded payment, the

Indiana residents filed suit against the Attaways in an Indiana trial court

seeking $5,900.00 in damages. Id. at 76.

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 9 of 12 [18] The Attaways subsequently filed a motion to dismiss, in which they claimed

that the Indiana trial court lacked personal jurisdiction over them. Id. The trial

court denied the Attaways’ motion to dismiss. Id. Upon review, we affirmed

the judgment of the trial court, concluding that with respect to the purchase of

the vehicle over eBay, “the Attaways purposefully availed themselves of the

privilege of conducting activities within the State of Indiana such that they

could reasonably anticipate defending a lawsuit in Indiana related to this eBay

purchase.” Id. at 79.

[19] While the facts of the instant matter do not directly mirror the facts presented in

either Rosowsky or Attaway, we believe that the type of contacts Bowers had

with the State of Indiana are more similar to those had by the agent for the

University of Colorado than the internet purchasers of a vehicle from sellers

who were residents of Indiana. Again, through his “diamond player” status

with Harrah’s Casino in Las Vegas, Bowers qualified to receive tickets to a

Chicago Bears/Green Bay Packers football game. This game took place at

Soldier Field in Chicago. The tickets were obtained by representatives from

Harrah’s from representatives of Horseshoe.

[20] Bowers’s only contacts with the State of Indiana were occasioned on the

requirement that he pick up the tickets from Horseshoe and spend some time

gambling in the casino. The first contact took place in 2008 and has no relation

to the instant matter. The second contact took place in the fall of 2010, prior to

the alleged incident between Bowers and Weichman. Bowers could have easily

been required to pick up the tickets from a location in Illinois or Michigan,

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 10 of 12 rather than Indiana. Bowers’s minimal contacts with Indiana were fortuitously

due to Horseshoe’s location within a few miles of the Indiana/Illinois state line

on Indiana’s Lake Michigan shorefront. Further, nothing in the record even

suggests that Bowers encountered Weichman while at Horseshoe or in the State

of Indiana. Weichman does not allege that he ever had any contact with

Bowers within the State of Indiana. The only alleged contact between

Weichman and Bowers occurred at Soldier Field in Chicago.

[21] Again, it is undisputed the alleged altercation between Bowers and Weichman

took place in Illinois, not in Indiana. As such, Indiana has no real interest in

adjudicating the dispute. In addition, there would be a great burden upon

Bowers if we were to allow personal jurisdiction over Bowers in Indiana.

Bowers is a Wisconsin resident who is not regularly engaged in business in

Indiana. He does not own any property in Indiana and seemingly has no

connection to Indiana other than his two short visits to Horseshoe, one of

which occurred in 2008 and the other of which occurred in 2010. Further, to

the extent that Weichman may be entitled to relief, nothing in the record

suggest that he could not obtain said relief from another jurisdiction, i.e.,

Illinois.

[22] Upon review, we conclude that under the facts of the instant case, due process

considerations preclude Indiana courts from asserting jurisdiction over Bowers.

As such, we conclude that the trial court erred in denying Bowers’s motion to

dismiss for lack of personal jurisdiction. We therefore reverse the judgment of

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 11 of 12 the trial court and remand to the trial court with an instruction to enter an order

dismissing Weichman’s claims against Bowers.

[23] The judgment of the trial court is reversed and the matter remanded to the trial

court with instructions.

Vaidik, C.J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A04-1411-CT-515 | May 8, 2015 Page 12 of 12