Daniel J. Chupp v. Wyndham Vacation Ownership, Inc.

Pursuant to Ind.Appellate Rule 65(D), Jul 22 2013, 6:10 am
this 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.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DANIEL J. CHUPP JAMES L. PETERSEN
Franklin, Indiana BRIAN J. PAUL
CHRISTINA L. FUGATE
ERIN A. WEBLEY
Ice Miller LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL J. CHUPP, )
)
Appellant-Plaintiff, )
)
vs. ) No. 41A04-1302-SC-48
)
WYNDHAM VACATION )
OWNERSHIP, INC., )
)
Appellee-Defendant. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Richard L. Tandy, Magistrate
Cause No. 41D01-1209-SC-2771
July 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Daniel Chupp, pro se, appeals the trial court’s grant of a motion to dismiss filed by
Wyndham Vacation Ownership, Inc. (“WVO”), as well as from the court’s denial of
Chupp’s motion to reconsider. Chupp raises three issues which we consolidate and
restate as whether the court erred in dismissing Chupp’s notice of small claim on the
basis that it did not have personal jurisdiction over WVO. WVO also requests appellate
attorney fees pursuant to Ind. Appellate Rule 66(E). We affirm and deny WVO’s request
for attorney fees.
FACTS AND PROCEDURAL HISTORY
On November 9, 2009, Chupp, who is a resident of Franklin, Indiana, and a
representative of WVO, a Delaware corporation with its principal place of business
located in Orlando, Florida, entered into a “Discovery VIP” membership agreement
entitling Chupp to certain travel and accommodation benefits.1 Appellee’s Appendix at
14-15.2 The agreement was signed in Las Vegas, Nevada. Id. at 14. Chupp also signed a
“Statement of Understanding” which stated that “I understand that I am able to use my
points for accommodations at select Wyndham Vacation Resorts, Inc. (Wyndham)
locations or for a Wyndham Vacation Resorts and cruise combination package, as listed
in the current Discovery Vacations by Wyndham Member’s Directory.” Id. at 16.
On September 4, 2012, Chupp filed a notice of small claim (the “Claim”) against
WVO in the Magistrate Division of the Johnson County Court. The Claim noted that
1
We note that the agreement names the party opposite Chupp as “Wyndham Vacation Resorts,”
rather than Wyndham Vacation Ownership. Appellee’s Appendix at 14. However, it appears that both
Chupp and WVO agree that they are one and the same.
2
We note that Chupp did not file an appellant’s appendix. We direct Chupp to Ind. Appellate
Rule 49(A), which provides that “[t]he appellant shall file its Appendix with its appellant’s brief.”
2
WVO’s address was located in Orlando, Florida. Chupp noted the following on the
Claim form in the field asking the plaintiff to state the nature of the claim: “Breach of
contract. Misrepresentation of services offered.” Id. at 9. On October 5, 2012, WVO
moved to dismiss the Claim for lack of personal jurisdiction, improper venue, and failure
to properly file the notice of claim, specifically noting that it “has no contacts with
Indiana that would subject it to personal jurisdiction.” Id. at 11. On October 9, 2012,
Chupp filed an objection to WVO’s motion, noting that he “googled Wyndham near
Franklin Indiana and 27 properties came up with one in Greenwood Indiana which is in
Johnson County.” Id. at 24. On October 25, 2012, WVO filed a reply which stated that
Chupp “is confusing two separate and distinct entities: (1) [WVO] (the defendant in this
action); and (2) Wyndham Hotel Group, LLC. The ‘Wyndham’ properties cited by
[Chupp] in his Objection are independently owned and operated franchises of Wyndham
Hotel Group, LLC.” Id. at 27. On October 29, 2012, Chupp filed a response to WVO’s
reply. On November 13, 2012, Chupp filed a request for admissions pursuant to Ind.
Trial Rule 36.
On January 8, 2013, the court held a hearing on the parties’ motions. At the outset
of the hearing, Chupp, pro se, indicated to the court that he was on vacation in Las Vegas
when a representative of WVO approached him on the street and asked if Chupp would
listen to a ninety-minute presentation to “try to sell you one of those timeshare things,”
and, following the presentation, he signed the membership agreement. Transcript at 7.
WVO, by counsel, argued that “the Defendant in this action is [WVO]. This is a separate
and distinct entity from Wyndham Hotel Group, which is a subsidiary, I believe, of
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Wyndham Worldwide Corporation” and that “the Wyndham hotels that exist in Indiana
or nationwide are independently owned and operated franchises of Wyndham Hotel
Group. So, these are not even franchises of Wyndham Vacation.” Id. at 13-14. On
January 10, 2013, the court entered its order of dismissal without prejudice. Chupp filed
a motion to reconsider dismissal on January 15, 2013, stating in part:
The fact that [WVO] does not own or operate the location in Johnson
County Indiana is immaterial to the this [sic] case. This case is a general
contractor and sub-contractor dispute. When party 1 and party 2 enters into
a contract ( written or verbal). [sic] That contract is still in effect when
party 2 sub-contracts with party 3 to actually perform party 2 contractual
obligations to party 1. Party 1 does not have to be party to or even be
aware of the contract between party 2 and party 3. When party 3 fails to
start or complete the obligation party 2 has to party 1 this is a breech [sic]
of the original contract between party1 [sic] and party 2. Party 1 being
[Chupp] and party 2 being [WVO] and party 3 being Wyndham Hotel
Group.
Appellee’s Appendix at 43. Chupp also noted that Defendant’s Exhibit 1, an affidavit of
Susan Martinez who is a paralegal for WVO, stated that WVO “does not own or operate
or maintain any of the hotel properties,” and “[b]y this statement [WVO] is
acknowledging the fact that there is a sub-contract with the Wyndham Hotel Group.” Id.
at 44. On January 22, 2013, the court denied Chupp’s motion to reconsider.
DISCUSSION
The issue is whether the court erred in dismissing Chupp’s notice of small claim
on the basis that it did not have personal jurisdiction over WVO. Before addressing the
arguments of the parties, however, we note that although Chupp is proceeding pro se,
such litigants are held to the same standard as trained counsel and are required to follow
procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.
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denied. This court will not “indulge in any benevolent presumptions on [his] behalf, or
waive any rule for the orderly and proper conduct of [his] appeal.” Ankeny v. Governor
of State of Indiana, 916 N.E.2d 678, 689 (Ind. Ct. App. 2009) (citation omitted), reh’g
denied, trans. denied.
Personal jurisdiction is a question of law. LinkAmerica Corp. v. Albert, 857
N.E.2d 961, 965 (Ind. 2006). “Therefore, our review is de novo, and we do not defer to
the trial court’s legal conclusion as to whether personal jurisdiction exists.” Sebring v.
Air Equip. and Eng’g, Inc., 988 N.E.2d 272, 274 (Ind. Ct. App. 2013) (citing
LinkAmerica, 857 N.E.2d at 965). However, to the extent that the issue of personal
jurisdiction turns on disputed facts, the trial court’s findings of fact are reviewed for clear
error. Id. Also, to the extent we review the court’s denial of Chupp’s motion to
reconsider, we apply an abuse of discretion standard. Buford v. Flori Roberts, Inc., 663
N.E.2d 1159, 1160 (Ind. Ct. App. 1996).
Indiana Trial Rule 4.4(A) serves as Indiana’s long-arm jurisdiction provision.
Sebring, 988 N.E.2d at 274. This provision extends to the limits of the United States
Constitution; therefore, analysis of personal jurisdiction is reduced “to the issue of
whether the exercise of personal jurisdiction is consistent with the Federal Due Process
Clause.” Id. at 274-275 (quoting LinkAmerica, 857 N.E.2d at 967).
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.’” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S. Ct.
154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61
S. Ct. 339, 85 L.Ed. 278 (1940)). If the defendant’s contacts with the state
are so “continuous and systematic” that the defendant should reasonably
5
anticipate being haled into the courts of that state for any matter, then the
defendant is subject to general jurisdiction, even in causes of action
unrelated to the defendant’s contacts with the forum state. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n. 9,
104 S. Ct. 1868, 80 L.Ed.2d 404 (1984).
If the defendant’s contacts with the forum state are not “continuous
and systematic,” specific jurisdiction may be asserted if the controversy is
related to or arises out of the defendant’s contacts with the forum state. Id.at 414 & n. 8, 104 S. Ct. 1868. 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. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474-75, 105 S. Ct. 2174, 85 L.Ed.2d 528 (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. 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.” 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)).
Id. (quoting LinkAmerica, 857 N.E.2d at 967).3
Initially, we observe that WVO asserts that Chupp’s argument should be waived
for failure to present a cogent argument, and in this regard we are inclined to agree.
3
Also, “once either general or specific jurisdiction has been established, ‘due process requires
that the assertion of personal jurisdiction over the defendant is reasonable.’” Foley v. Schwartz, 943
N.E.2d 371, 379 (Ind. Ct. App. 2011) (quoting LinkAmerica, 857 N.E.2d at 967), trans. denied. As
recited by the Court in LinkAmerica, the five factors to balance in determining reasonableness are as
follows:
(1) the burden on the defendant; (2) the forum State’s interest in adjudicating the dispute;
(3) the plaintiff’s interest in obtaining convenience 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.
857 N.E.2d at 968 (citing Burger King, 471 U.S. at 476-477, 105 S. Ct. 2174).
6
Specifically, WVO argues that Chupp’s brief “is substantially noncompliant with the
appellate rules,” noting that it “introduces new information that is outside the record and
irrelevant to the jurisdictional question before this court,” that his statement of the case
fails to reference the record or appendix, that indeed Chupp did not file an appendix, and
that his statement of facts contains improper argument and assertions of fact not
presented at the trial court level and not contained in the record. Appellee’s Brief at 6.
WVO also notes that Chupp’s argument section “does not separately discuss each of the
‘issues’ set forth in the Statement of Issues,” that his “arguments are intermixed with
other sections of his Brief, and that only the first of . . . three ‘issues’ are even discussed
at all.” Id. WVO further notes that Chupp does not provide the applicable standard of
review, and that although he cites to certain cases, he does not discuss them nor apply
them to the facts.
Indeed, we note that although Chupp appears to identify three issues in his
statement of the issues,4 the entirety of his argument section consists of the following:
1. The Appellants cause in Indiana is the proper venue and Indiana having
jurisdiction due to the fact that the Defendant does have contact with
4
Chupp states his issues on appeal as:
1. The fact that the lower court dismissed [his] cause due to being without jurisdiction to
litigate these issues.
2. The fact that the lower court denies [his] Motion to Reconsider Dismissal.
3. [He] served a Request for Admission upon [WVO] which is now deemed admitted.
Trial Rule 36 of the Indiana Rules of Procedures, The request spells out the contacts and
the obligations of [WVO] to [Chupp]. Plaintiffs exhibit #2.
Appellant’s Brief at 1. We also observe that the exhibit volume generated by the trial court clerk below
contains one exhibit, which is the affidavit of Susan Martinez. Chupp’s request for admissions is
contained in the appendix filed by WVO, and it contains a file stamp date of November 13, 2012.
7
Indiana in a continuous and substantial manor [sic] and that that contact
gives rise to the Plaintiffs [sic] issue. International Shoe Company v.
Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057(1945), Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S. Ct.
2174, 85 L. Ed.2d 528[ ](1985), World Wide Volkswagen Corp. v.
Woodson, 444 U.S. at 297, 100 S.[ ]Ct. at 567., [sic] Trial Rule 4.4(A)(1)
and Trial Rule 4.4(A)(4)[ ]and Trial Rule 4.4(A)(5) 2. The obligation was
to be performed in Johnson County Indiana at a Wyndham hotel group
property. Page 33-34 in transcript.
Appellant’s Brief at 4. In his statement of facts, Chupp asserts, without citation to
authority, that “WYNDHAM WORLDWIDE is the parent corporation of 3 separate
corporations known as Wyndham Hotel Group, Wyndham Exchange & Rentals, [and]
Wyndham Vacation Ownership. All 3 corporations communicate on a daily bases [sic] to
fulfill accommodations obligations of each other.”5 Id. at 3. To the extent that Chupp
fails to cite to relevant authority or relevant portions of the record or develop an argument
with respect to the issues he attempts to raise, those arguments on appeal are waived. See
Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument
waived for failure to cite authority or provide cogent argument), reh’g denied, trans.
denied.
However, despite such shortcomings we elect to address the apparent merits of
Chupp’s argument, and we note that we are able to do so in a rather summary fashion.
As recited above, the crux of Chupp’s claim is that, although WVO is a Delaware
corporation headquartered in Orlando, Florida, and although the agreement was signed in
Las Vegas, Nevada, he is entitled to bring his claim in Johnson County, Indiana, due to
5
At the end of Chupp’s statement of facts, he provides the citation “See Plaintiffs exhibit #1.”
Appellant’s Brief at 3. However, neither the exhibits volume, nor the appendix filed by WVO, contains
such exhibit.
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the presence of a Wyndham hotel property located in Greenwood. However, as made
clear by WVO in its argument and, importantly, by the affidavit of Susan Martinez, the
lone exhibit entered into evidence at the hearing, WVO “does not own, operate, or
maintain any hotel properties,” and such hotels “are independently owned and operated
franchises of Wyndham Hotel Group, LLC,” which “is a separate and distinct entity”
from WVO. Defendant’s Exhibit 1.
Indeed, the Court in LinkAmerica specifically noted that it is presumed “that a
parent and a subsidiary are independent entities and a subsidiary’s contacts with the
forum are not attributed to the parent corporation for jurisdictional purposes.” 857
N.E.2d at 968. This is so because “when corporate formalities are observed, permitting
the activities of the subsidiary to be the basis for exercising jurisdiction over the parent
violates due process.” Id. Also, it follows that contacts from one subsidiary may not
create minimum contacts attributable to another subsidiary of the same parent
corporation. “Overcoming this presumption requires clear evidence that either: (1) the
parent utilizes its subsidiary in such a manner that an agency relationship can be
perceived; (2) the parent has greater control over the subsidiary than is normally
associated with common ownership and directorship; or (3) the subsidiary is merely ‘an
empty shell.’” Id. Chupp does not present any evidence or argument to overcome this
presumption.
Having determined that Chupp’s argument fails, we address WVO’s request for
appellate attorney fees pursuant to Appellate Rule 66(E). Appellate Rule 66(E) provides
in part that this court “may assess damages if an appeal, petition, or motion, or response,
9
is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include
attorneys’ fees.” Our discretion to award attorneys’ fees under Ind. Appellate Rule 66(E)
is limited to instances when “an appeal is permeated with meritlessness, bad faith,
frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797
N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Orr v. Turco Mfg. Co. Inc., 512 N.E.2d 151,
152 (Ind. 1987)). In addition, while Ind. Appellate Rule 66(E) provides this court with
discretionary authority to award damages on appeal, we must use extreme restraint when
exercising this power because of the potential chilling effect upon the exercise of the
right to appeal. Id. (citing Tioga Pines Living Ctr., Inc. v. Ind. Family & Social Serv.
Admin., 760 N.E.2d 1080, 1087 (Ind. Ct. App. 2001), affirmed on reh’g, trans. denied).
A strong showing is required to justify an award of appellate damages and the sanction is
not imposed to punish mere lack of merit but something more egregious. Harness v.
Schmitt, 924 N.E.2d 162, 168 (Ind. Ct. App. 2010).
Indiana appellate courts have classified claims for appellate attorneys’ fees into
substantive and procedural bad faith claims. Thacker, 797 N.E.2d at 346 (citing Boczar
v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001)). To prevail on a
substantive bad faith claim, the party must show that “the appellant’s contentions and
arguments are utterly devoid of all plausibility.” Id. Procedural bad faith, on the other
hand, occurs when a party flagrantly disregards the form and content requirements of the
rules of appellate procedure, omits and misstates relevant facts appearing in the record,
and files briefs written in a manner calculated to require the maximum expenditure of
time both by the opposing party and the reviewing court. Id. at 346-347. Even if the
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appellant’s conduct falls short of that which is “deliberate or by design,” procedural bad
faith can still be found. Id. at 347.
Here, we elect to deny WVO’s request for appellate attorney fees. In so doing, we
note in particular that the appeal is from a notice of claim filed in small claims court,
which is an informal proceeding which has “the sole objective of dispensing speedy
justice between the parties according to the rules of substantive law,” and which “shall
not be bound by the statutory provisions or rules of practice, procedure, pleadings or
evidence . . . .” Small Claims Rule 8(A). Recognizing that Chupp, who represented
himself below as well as on appeal, was seeking review of the small claims court’s order,
and the fact that his arguments contained in a four-page brief did not appear to be written
in a manner calculated to require the maximum expenditure of time both by the opposing
party and the reviewing court, we decline to award appellate attorney fees.
CONCLUSION
For the foregoing reasons, we affirm the court’s order of dismissal and denial of
Chupp’s motion to reconsider, and we deny WVO’s request for appellate attorney fees.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
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