Mart v. Hess

703 N.E.2d 190, 1998 Ind. App. LEXIS 2256, 1998 WL 897047
CourtIndiana Court of Appeals
DecidedDecember 28, 1998
Docket49A05-9804-CV-186
StatusPublished
Cited by25 cases

This text of 703 N.E.2d 190 (Mart v. Hess) 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
Mart v. Hess, 703 N.E.2d 190, 1998 Ind. App. LEXIS 2256, 1998 WL 897047 (Ind. Ct. App. 1998).

Opinion

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiffs-Appellants Stewart J. Mart and Tammy Mart (“Marts”) appeal the dismissal of their claim of defamation on the grounds of lack of personal jurisdiction, Ind.Trial Rule 12(B)(2), and failure to state a claim upon which relief can be granted, T.R. 12(B)(6).

We reverse.

*192 ISSUES

The Marts present two issues for our review:

1. Whether the trial court erred in dismissing the Marts’ complaint for lack of personal jurisdiction over Defendant-Ap-pellee Patricia Hess (“Hess”).
2. Whether the trial court erred in finding that the Marts’ complaint failed to state a claim for relief because there was no publication of alleged defamatory remarks made by Hess.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Mart are husband and wife. Mr. Mart was formerly married to Patricia Hess. After their divorce, Hess moved to Hawaii, where she currently resides. On May 6, 1996, the Marts filed a defamation action against Hess in the Marion Superior Court in Indiana. In their complaint, the Marts claimed that Hess had published to third parties defamatory statements about Mr. Mart, and that she repeatedly sent “disparaging, libelous, annoying and harassing facsimiles and letters” to Mrs. Mart’s place of employment. They further alleged that Hess’ actions were done with malice and with knowledge of and disregard for the falsity of the defamatory statements, and that the Marts were damaged as a result of Hess’ actions.

In response, Hess filed a motion to dismiss for lack of jurisdiction, failure to state a claim, judgment on the pleadings, and incorrect venue. The trial court granted Hess’ motion to dismiss on the grounds of lack of personal jurisdiction and failure to state a claim due to lack of publication of the allegedly defamatory remarks. The Marts now appeal that dismissal.

DISCUSSION AND DECISION

I. Lack of Personal Jurisdiction

A party challenging jurisdiction must establish by a preponderance of the evidence that no jurisdiction exists unless lack of jurisdiction is apparent on the face of the complaint. Brokemond v. Marshall Field & Co., 612 N.E.2d 148, 145 (Ind.Ct.App.1993). Because jurisdiction is presumed in Indiana and need not be alleged in the complaint, the plaintiffs burden to come forward with evidence which would establish jurisdiction does not arise until jurisdiction is challenged by the defendant. Id.

To determine if a nonresident defendant’s contacts with the forum state are sufficient to confer personal jurisdiction, a two-part analysis is required. First, the court must determine if the state’s long arm statute authorizes the exercise of jurisdiction over the- defendant; and second, it must determine whether asserting jurisdiction over the defendant would offend the due process clause of the Fourteenth Amendment. Id.

Indiana’s long arm statute, which Indiana courts have held is intended to extend personal jurisdiction to the limits permitted under the due process clause of the Fourteenth Amendment, provides that a nonresident may be subject to the jurisdiction of the Indiana courts if certain conditions are met. T.R. 4.4(A); Brokemond, 612 N.E.2d at 145. Our first inquiry, then, is whether any of the conditions outlined in T.R. 4.4(A) apply to Hess in this case. T.R. 4.4(A)(2) provides:

Any person or organization that is a nonresident of this state, a resident 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 her or her agent: (2) causing personal injury or property damage by an act or omission done within this state....

The present action arose from Hess’ alleged acts of defaming Mr. Mart. In a defamation action, the place of the tort is generally considered the place of publication, i.e., where the defamatory material is communicated to a third party. Hoffman v. Roberto, 578 N.E.2d 701, 705 (Ind.Ct.App.1991). The Marts’ complaint alleges that Hess sent defamatory letters and facsimiles to Mrs. Mart’s place of employment. Mrs. Mart is described in the complaint as an Indiana resident. It appears, therefore, that the alleged defamatory remarks were published in Indiana. Keeping in mind the pre *193 sumption of jurisdiction discussed above, we find that the complaint does not indicate a lack of jurisdiction over Hess. Furthermore, when challenged by Hess’ motion to dismiss for lack of jurisdiction, the Marts clarified that their claim referred to publication in Indiana. We conclude that Hess’ transmissions of defamatory communications to Indiana constitute acts done in our state and therefore subject her to the jurisdiction of our courts.

Even if it were found that the acts giving rise to this action were not done in Indiana, Hess is still subject to our jurisdiction under T.R. 4.4(A)(8). This subsection provides that a nonresident,submits to the jurisdiction of Indiana courts for “abusing, harassing, or disturbing the peace of ... any person within the state by an act or omission done in this state, or outside this state if the act or omission is part of a continuing course of conduct having an effect in this state.” The complaint indicates, and Hess has not challenged, that Hess engaged in an injurious course of conduct of harassing the Marts, Indiana residents, by repeatedly sending defamatory facsimiles and letters to Mrs. Mart’s place of employment. By doing so, Hess has submitted to the jurisdiction of our courts under T.R. 4.4(A)(8).

The second part of our inquiry is whether the assertion of jurisdiction would offend the due process clause of the Fourteenth Amendment. Due process requires that the defendant 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.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Whether minimum contacts exist in a particular factual setting must be determined on a ease-by-case basis; there are no hard and fast rules regarding the existence of a minimum contact. Mullen v. Cogdell, 643 N.E.2d 390, 397 (Ind.Ct.App.1994). When a cause of action arises from the defendant’s contacts with the forum, less is required to support jurisdiction than when the cause of action is unrelated to those contacts. Id.

Hess’. contacts relevant to jurisdiction in the present case include her alleged sending of defamatory letters and facsimiles to Indiana.

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Bluebook (online)
703 N.E.2d 190, 1998 Ind. App. LEXIS 2256, 1998 WL 897047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mart-v-hess-indctapp-1998.