Foley v. Schwartz

943 N.E.2d 371, 78 A.L.R. 6th 693, 2011 Ind. App. LEXIS 104, 2011 WL 288308
CourtIndiana Court of Appeals
DecidedJanuary 31, 2011
Docket78A04-1005-CT-305
StatusPublished
Cited by4 cases

This text of 943 N.E.2d 371 (Foley v. Schwartz) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foley v. Schwartz, 943 N.E.2d 371, 78 A.L.R. 6th 693, 2011 Ind. App. LEXIS 104, 2011 WL 288308 (Ind. Ct. App. 2011).

Opinion

OPINION

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. 1 According to the complaint, on May 27, 2007, Foley, who is a resident of Ohio, was riding on a four-wheel recreational motor vehicle (an “ATV”) operated by Bruce Bastin on prop *374 erty owned by Danny Collins in Switzerland County, Indiana. On the property, an old culvert pipe had been left after it had previously been replaced in 2006 or early 2007 by the Switzerland County Highway Department, and “field grass had grown around the culvert pipe” which obstructed its ability to be seen. Appellant’s Appendix at 81. Collins knew that the pipe was on his property, but he did not warn Bas-tin. At one point while operating the ATV, Bastin came upon the culvert pipe and “suddenly steered the [ATV] in an attempt to avoid striking [it], causing [the ATV] to tip-over, severely injuring [Foley].” Id. at 82.

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:

RE: Accident of May 27, 2007
Cynthia Foley vs Danny Collins
Dear Ms. Foley:
We are pleased to be of assistance to you in the matter of your unfortunate accident which occurred on May 27, 2007....
I am not an Indiana or Kentucky attorney but will help you in the best possible way.
I indicated to you that if I feel the case should be best conducted in Indiana or Kentucky I would endeavor to split any fee with another attorney under the same agreement that we have, at no additional charge to you....
⅜ ⅜ ⅜ ⅜ ⅜: #
PLEASE TRY TO OBTAIN PHOTOGRAPHS OF TERRAIN AND PIPE FOR OUR CASE AND CALL ME IF YOU NEED HELP. PHOTOS ARE VERY IMPORTANT.
Please do not sign any “Medical Lien” or other documents concerning payment in you [sic] doctor’s office.... A “Medical Lien” on your case could severely effect [sic] any money you receive and the outcome of your claim....
If you have missed work and you want to make a lost wage claim, you will need to obtain a statement from your employer or some other proof of lost income ....
We already have begun acquiring information. Since our initial discussions, we have notified the other party by letter of our representation....
⅝ ⅝ ⅜ ⅝ ⅜
The most difficult part of any case is to determine the amount for which the case should be settled. A great number of factors go into our recommendation. We consider the facts of the accident, the nature and extent of the injuries, the medical bills and other losses that have been incurred, and the permanency of any injury. We will also consider the place where the suit would have to be filed....

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 260. The letter was addressed to a post office box in Blooming-ton, 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 En *375 glish terms.’ ” Id. at 251. Iglendza sent a response to Schwartz on June 21, 2007.

On June 26, 2007, Foley and Schwartz signed a Contract for Contingent Fee Accident Case which stated in part:

I hereby retain you, Robert L. Schwartz, as my attorney in the above-captioned case and all claims arising out of said accident claim or incident. I understand that you will represent me in all stages of this proceeding and will diligently prosecute this case to the best of your ability until settlement is reached or the complaint is filed and judgment results. I understand that I am hiring you to assist me in attempting to achieve a satisfactory settlement and I will consider your advice throughout the handling of this matter as to what is a reasonable settlement offer.
⅜ ⅝ ⅜ ⅝ ⅝ ⅜
I understand that you may associate with additional co-counsel as needed in the prosecution of this claim at your discretion....
⅜ ¾: ⅝ ⅜ ⅜ ⅝
.... Your reasonable fee is subject to the current law, rules and guidelines such as DR 2-106, which may supersede the terms of this agreement.

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 Swin-gler, 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:

Mr. Collins has home owners insurance with State Farm Insurance Company. Recently, State Farm Insurance Company informally indicated they may deny liability, claiming there was no negligence on the part of their insured.... I presume that [Bastin] ... was covered as an insured person who would be responsible for negligent driving of the off-road vehicle.

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.

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943 N.E.2d 371, 78 A.L.R. 6th 693, 2011 Ind. App. LEXIS 104, 2011 WL 288308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-schwartz-indctapp-2011.