Thomas R. Ysursa and Becker, Hoerner, Thompson & Ysursa, P.C. v. Frontier Professional Baseball, Inc.

FILED
Jul 02 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Adam J. Sedia Andrew M. McNeil
Joseph R. Marconi Philip R. Zimmerly
Michael A. Sarafin Sarah T. Parks
Johnson & Bell, P.C. Bose McKinney & Evans, LLP
Crown Point, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas R. Ysursa and July 2, 2020
Becker, Hoerner, Thompson & Court of Appeals Case No.
Ysursa, P.C.,1 20A-CT-49
Appellants-Defendants, Interlocutory Appeal from the
Indiana Commercial Court,
v. Marion Superior Court
The Honorable Heather A. Welch,
Frontier Professional Baseball, Judge
Inc., Trial Court Cause No.
Appellee-Plaintiff. 49D01-1901-CT-576
Mathias, Judge.
1
As discussed infra, Kevin L. Murphy, J. Jeffrey Landen, Murphy Landen Jones PLLC, and Kevin L.
Murphy PLLC, defendants below, also filed a notice of appeal, but their appeal was dismissed without
prejudice prior to briefing. Their petition to transfer regarding the dismissal of their appeal is currently
pending. Nathaniel L. Swehla and Graydon Head & Ritchey, PLLC, also defendants below, were dismissed
prior to issuance of the appealed order by agreement of the parties.
Court of Appeals of Indiana | Opinion 20A-CT-49 | July 2, 2020 Page 1 of 21
[1] The Marion Superior Court denied a motion to dismiss filed by Thomas Ysursa
(“Ysursa”) and the law firm of Becker, Hoerner, Thompson & Ysursa, P.C.
(collectively the “Ysursa Defendants”) in which the Ysursa Defendants claimed
that the trial court lacked personal jurisdiction over them. In this interlocutory
appeal, the Ysursa Defendants present two issues for our review: (1) whether
the trial court erred in determining that there were sufficient minimum contacts
between Ysursa and Indiana to establish personal jurisdiction; and (2) whether
the trial court’s decision to exercise its jurisdiction was unreasonable.
Concluding that the trial court did not err in either respect, we affirm.
Facts and Procedural History
[2] Frontier Professional Baseball, Inc. (“Frontier”) is a nonprofit baseball league
incorporated in Ohio. Frontier’s principal office is in Sauget, Illinois. Ysursa is
an attorney licensed to practice in Illinois and Missouri. He is a partner in the
firm of Becker, Hoerner, Thompson & Ysursa, P.C., based in Belleville, Illinois.
From 2009 until early 2019, Ysursa acted as general counsel for Frontier.
[3] For several years prior to 2014, Frontier attempted to expand its league to
include a team in Kokomo, Indiana. This attempt was ultimately unsuccessful,
and the expansion attempt ceased in 2014. In November of that year, two of
Frontier’s shareholders filed a shareholder derivative action (the “Indiana
Derivative Action”) in the United States District Court for the Southern District
of Indiana, alleging civil conspiracy and breaches of fiduciary duties against
Frontier’s management regarding the failure of the attempted expansion into
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Kokomo. See Washington Frontier League Baseball, LLC v. Zimmerman, Case No.
1:14-cv-1862, WL 7300555 (S.D. Ind. Nov. 18, 2015).
[4] Prior to and following the filing of the Indiana Derivative Action, Frontier
sought advice from Ysursa regarding the case. Then, on November 17, 2014,
Ysursa informed Frontier’s Executive Committee that he could not represent
the league in the matter as he was a potential witness in the case. Ysursa
recommended another attorney, Kevin Murphy, to represent Frontier in the
Indiana Derivative Action. Nevertheless, Ysursa continued to perform legal
work on the Indiana Derivative Action, billing Frontier for his legal services.
[5] The legal work Ysursa performed included conferring with Murphy regarding
the Indiana Derivative Action, exchanging emails with the plaintiffs’ counsel
regarding waiver of service, and meeting with Frontier’s Special Litigation
Committee (“SLC”) and Murphy’s legal team regarding the Indiana Derivative
Action. In January 2015, Ysursa directed an associate at his firm to draft a
research memo regarding shareholder derivative suits and special litigation
committees in relation to the Indiana Derivative Action. Ysursa then circulated
this memo to Murphy’s legal team. The memo emphasized that certain
requirements were necessary before a court could defer to the business
judgment of a special litigation committee. Thereafter, Ysursa continued to
confer with Murphy and Frontier regarding the Indiana Derivative Action. In
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early 2015, Ysursa prepared a report for Frontier’s SLC2 regarding the Indiana
Derivative Action. One of the allegations of malpractice asserted by Frontier in
the current case is that the Ysursa Defendants failed to properly advise the SLC
on the requirement that the committee be independent and conduct an
investigation. Frontier also alleges that Ysursa did not properly investigate and
research the report.
[6] In 2017, Ysursa signed an affidavit in support of Frontier’s motion for summary
judgment in the Indiana Derivative Action. Ultimately, the federal court denied
Frontier’s motion for summary judgment in the Indiana Derivative Action. See
Washington Frontier League Baseball, LLC v. Zimmerman, 2018 WL 2416419 at
*12 (S.D. Ind. May 29, 2018) (“The lack of independence and thorough
investigation undermined the integrity of the SLC process and defeated the very
purpose for giving an SLC deference. Therefore, the Court concludes that
summary judgment is not warranted pursuant to the business judgment rule.”).
Thereafter, Frontier reached a settlement with two of the plaintiffs in the
Indiana Derivative Action.
[7] On January 4, 2019, Frontier filed a legal malpractice action in Marion
Superior Court against three sets of defendants: the Ysursa Defendants;
Murphy, J. Jeffrey Landen, and their law firm, Murphy Landen Jones, PLLC,
and Kevin L. Murphy, PLLC (“the MLJ Defendants”); and Nathaniel L.
2
Ysursa’s billing records refer to this report as the “Executive Committee Report” or the “Executive
Litigation Committee Report.” Appellant’s App. pp. 134, 137.
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Swehla and his law firm, Graydon Head & Ritchey, PLLC (“GHR”). The
allegations against Murphy and Swehla related to their handling of the Indiana
Derivative Action. Against Ysursa specifically, the complaint alleged that he
improperly vetted Murphy for selection as Frontier’s litigation counsel, that he
failed to advise Frontier’s SLC on the legal requirements of Murphy’s strategy,
that he failed to investigate the potential value of the claims against Frontier,
that he advised Frontier to reject a proposed settlement without a fundamental
understanding of the potential value of the claims, and that he failed to
investigate insurance coverage for the claim.
[8] On February 27, 2019, the Ysursa Defendants filed an answer alleging the
affirmative defense of lack of personal jurisdiction. And on April 1, 2019, the
Ysursa Defendants filed a motion to dismiss under Indiana Trial Rule 12(B)(2),
again alleging a lack of personal jurisdiction. Swehla and GHR also filed a
motion to dismiss, and the MLJ Defendants filed a motion for summary
judgment. The parties subsequently agreed to dismiss Swehla and GHR as
defendants.
[9] On August 5, 2019, the trial court issued an order denying the Ysursa
Defendants’ motion to dismiss and the MLJ Defendants’ motion for summary
judgment. On August 21, 2019, the Ysursa Defendants filed a motion asking
the trial court to certify its order for interlocutory appeal. The MLJ Defendants
filed a similar motion on September 5, 2019. The trial court held a hearing on
these motions on November 13, 2019. On December 12, 2019, the trial court
granted the Ysursa Defendants’ motion to certify its order for interlocutory
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appeal. The trial court denied the MLJ Defendants’ motion to certify the
following day. This court accepted jurisdiction of the interlocutory appeal on
February 3, 2020, and this appeal ensued.3
Standard of Review
[10] Jurisdictional challenges require courts to address a “threshold question
concerning the court’s power to act.” Boyer v. Smith, 42 N.E.3d 505, 508 (Ind.
2015) (citing Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind.
1994)). The trial court has the power to “weigh the evidence to determine the
existence of the requisite jurisdictional facts,” and to make findings to resolve
factual disputes. Id.[11] Our standard of review for a motion to dismiss for lack of personal jurisdiction
under Trial Rule 12(B)(2) is well settled. “Personal jurisdiction presents a
question of law we review de novo.” Id. (citing LinkAmerica Corp. v. Cox, 857
N.E.2d 961, 965 (Ind. 2006)). Whether personal jurisdiction exists can depend
upon factual determinations concerning a defendant’s contacts with the forum
state, in which case the challenger bears the burden of disproving personal
jurisdiction. Id. (citing Wolf’s Marine, Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App.
2014)). Accordingly, when the trial court issues findings of jurisdictional facts,
we review those findings for clear error. Id. at 509. (citing LinkAmerica, 857
3
The MLJ Defendants filed a separate notice of appeal on February 10, 2020, claiming that they were
appealing the trial court’s August 5, 2019 order denying their motion for summary judgment. We issued an
order on March 9, 2020 dismissing the MLJ Defendant’s appeal without prejudice. On April 17, 2020, the
MLJ Defendants filed a petition to transfer with our supreme court, claiming that we improperly dismissed
their appeal. As of the date of this opinion, our supreme court has not yet ruled on this petition to transfer.
Court of Appeals of Indiana | Opinion 20A-CT-49 | July 2, 2020 Page 6 of 21
N.E.2d at 965). In reviewing findings for clear error, we consider whether the
evidence supports the findings and whether the findings support the judgment.
Id. We will reverse the trial court’s factual findings only when the record
contains no evidence to support them either directly or indirectly. Id. (citing
Fischer v. Heymann, 12 N.E.3d 867, 870 (Ind. 2014)).
Personal Jurisdiction
[12] The term “personal jurisdiction” refers to a court’s power to impose judgment
on a particular defendant. Boyer, 42 N.E.3d at 509. Indiana Trial Rule 4.4(A)
sets forth a list of activities that support a finding of personal jurisdiction. See
Boyer, 42 N.E.3d at 509. Trial Rule 4.4(A) also provides that “a court of this
state may exercise jurisdiction on any basis not inconsistent with the
Constitutions of this state or the United States.” Our supreme court has
interpreted “this catchall ‘any basis’ provision to ‘reduce analysis of personal
jurisdiction to the issue of whether the exercise of personal jurisdiction is
consistent with the federal Due Process Clause.’” Id. (quoting LinkAmerica, 857
N.E.2d at 967.
[13] Accordingly, “before an Indiana court can properly assert personal jurisdiction
over a defendant, the Due Process Clause of the Fourteenth Amendment
mandates that the defendant 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.’” Id. (citing Int’l Shoe Co. v. Washington Off. of
Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945)). Such
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“[m]inimum contacts include acts defendants themselves initiate within or
without the forum state that create a substantial connection with the forum state
itself.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
[14] In Walden v. Fiore, 571 U.S. 277 (2014), the United States Supreme Court
provided guidance for determining whether such minimum contacts exist for
specific personal jurisdiction.4 The Walden Court stressed that the question of
whether a forum state “may assert specific jurisdiction over a nonresident
defendant focuses on the relationship among the defendant, the forum, and the
litigation.” Id. at 283–84 (citations and internal quotation marks omitted). For a
forum state’s exercise of jurisdiction to comport with due process, “the
defendant’s suit-related conduct must create a substantial connection with the
forum State.” Id. at 284. This relationship must arise out of contacts that the
defendant himself creates with the forum state, not the defendant’s contacts
with persons who reside there. Id. The Walden Court further explained that
the plaintiff cannot be the only link between the defendant and
the forum. Rather, it is the defendant’s conduct that must form
the necessary connection with the forum State that is the basis for
its jurisdiction over him. To be sure, a defendant’s contacts with the
forum State may be intertwined with his transactions or interactions with
the plaintiff or other parties. But a defendant’s relationship with a
plaintiff or third party, standing alone, is an insufficient basis for
jurisdiction. Due process requires that a defendant be haled into
court in a forum State based on his own affiliation with the State,
4
In contrast, general personal jurisdiction “arises when defendants possess ‘continuous and systematic’
contacts with Indiana that would put [defendants] on notice they could be sued in our courts on any cause of
action, even one unrelated to its contacts here.” Boyer, 42 N.E.3d at 510 n.2 (quoting LinkAmerica, 857
N.E.2d at 967). Neither party argues that general personal jurisdiction is applicable in this case.
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not based on the random, fortuitous, or attenuated contacts he
makes by interacting with other persons affiliated with the State.
Id. at 285–86 (emphasis added) (citations omitted).
Discussion and Decision
[15] The Ysursa Defendants claim that Ysursa’s only contact to Indiana was with
regard to the Indiana Derivative Action, which involved Frontier. None of
these contacts, they argue, were purposeful or direct, and the contacts related
only to Ysursa’s role as a witness and as Frontier’s general counsel, a position
he had held for years prior to the Indiana Derivative Action. Under these facts
and circumstances, the Ysursa Defendants claim that the trial court erred in
concluding that Ysursa had sufficient minimum contacts with Indiana to give
an Indiana court personal jurisdiction over him.
[16] In support of their argument, the Ysursa Defendants rely on the opinion of our
supreme court in Boyer, supra. In that case, a former employee, Ernest, sought to
bring an employment discrimination claim against his former employers, Boyer
and Smith, who had failed to hire him in their new business venture. Ernest first
filed a pro se discrimination claim with the Cincinnati office of the Equal
Employment Opportunity Commission (“EEOC”). The EEOC’s Cincinnati
office then transferred the case to its Indianapolis office. Ernest hired Cassidy,
an attorney licensed in Kentucky, to represent him in the employment
discrimination action. Cassidy filed such an action in federal district court in
Kentucky, naming Boyer, Smith, and the two corporations they formed.
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Cassidy later dismissed Boyer and Smith from the suit, and the federal district
court entered summary judgment in favor of the corporations.
[17] Boyer and Smith then filed suit against Cassidy in Indiana state court for
malicious prosecution, abuse of process, constructive fraud, and intentional
infliction of emotional distress. The trial court determined that it lacked
personal jurisdiction over Cassidy, and Boyer and Smith appealed. On transfer
to our supreme court, the court affirmed the trial court’s determination. Boyer,
42 N.E.3d at 507.
[18] In determining that Cassidy’s contacts with Indiana were insufficient to
establish personal jurisdiction, the court noted that her contacts were only with
the plaintiffs and that she neither created nor invoked those contacts herself. Id.
at 511. Specifically, Cassidy never practiced law in Indiana, nor did she ever
seek to; she did not seek business from Indiana; she communicated with the
Indianapolis EEOC only because the Cincinnati office transferred the case
there; she attended a deposition in Indiana only because Boyer and Smith’s
attorney scheduled it there; and she corresponded with an Indiana attorney and
served documents in the state only because the federal rules of civil procedure
required her to do so to represent Ernest in the federal case in Kentucky. Id. at
511–512. The Boyer court therefore stated that “if we took away Cassidy’s
relationship with Boyer, Richard, and Ernest, she would have absolutely no
relevant contacts within Indiana.” Id. at 512. Her conduct related to the lawsuit
created no connection with Indiana other than that a plaintiff resided here. Id.
Her connection to Indiana resulted from the actions of others, and “plaintiffs’
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or third parties’ actions cannot serve as the only link between a defendant and a
forum state.” Id. (citing Walden, 571 U.S. at 284). The court therefore
concluded that “Cassidy herself neither created nor invoked sufficient
minimum contacts within Indiana to warrant specific personal jurisdiction in
this case.” Id.
[19] The Ysursa Defendants claim that Boyer is directly on point with the present
case. We disagree. In Boyer, the attorney’s connections to Indiana were the
result of the actions of others. In contrast, Ysursa knew that the Indiana
Derivative Action was filed against his client, Frontier, in Indiana regarding the
failure of Frontier’s expansion effort into an Indiana city. Even though Ysursa
secured other counsel to represent Frontier in the matter, he continued to
perform significant legal work on the case, including working on the SLC report
regarding the case and signing an affidavit in support of Frontier’s unsuccessful
motion for summary judgment. Unlike Cassidy, whose “suit-related conduct”
consisted wholly of actions taken while representing a client in Kentucky where
a plaintiff to the suit resided in our state, Ysursa engaged in conduct directly
related to the underlying derivative suit involving his client’s activities in
Indiana. Ysursa’s contacts with Indiana were based not on the “random,
fortuitous, or attenuated contacts” he made by interacting with another person
affiliated with Indiana, but on his own affirmative conduct in the Indiana
Derivative Action.
[20] We find the present case more similar to Brockman v. Kravic, 779 N.E.2d 1250,
1258–59 (Ind. Ct. App. 2002). In that case, Kravic was a psychologist licensed
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in Kentucky who counseled Brockman’s son, A.B., at the request of the child’s
mother, Guerrero. A.B. was the subject of a custody dispute between the
parents, both of whom lived in Indiana. When Guerrero filed a petition for
change of custody in the Indiana court, she asked the court to order Kravic to
perform a psychological evaluation of A.B. Thereafter, Kravic wrote a letter to
Guerrero’s attorney stating that he believed Brockman’s visitation should be
halted. The trial court then suspended the visitations until it could interview the
child. After the interview, the court ordered Brockman to attend counseling
with Kravic. Brockman complied. Kravic then wrote two more letters in which
he recommended that Guerrero have full custody of A.B. and that Brockman’s
visitation be “therapeutic[.]” Id. at 1254.
[21] Brockman subsequently filed a complaint against Kravic in Indiana alleging
slander, libel, defamation, interference with a parental relationship, and
intentional infliction of emotional distress. Kravic filed a motion to dismiss for
lack of personal jurisdiction, which the trial court granted. On appeal, we
reversed the trial court’s dismissal. We noted that Kravic was contacted by an
Indiana resident to counsel her son, also an Indiana resident. Although this
counseling took place in Kentucky, Kravic issued a report to an Indiana
resident, thus “publishing” the allegedly defamatory material in Indiana. Kravic
also agreed to counsel Brockman at the request of an Indiana trial court. He
also wrote two letters giving his opinion regarding the custody dispute. Based
on these facts, we concluded that, although Kravic did not initiate the contact
with Guerrero, he did have “purposeful contact with Indiana when he mailed
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the letters there and voluntarily inserted himself into legal proceedings being
conducted in Indiana by an Indiana court.” Id. at 1258–59. By offering his
opinion under such circumstances, “Kravic should have expected that it might
be possible that he would be haled into Indiana court.” Id. at 1259. Under these
circumstances, we held that Kravic had sufficient minimum contacts to confer
the Indiana trial court with specific personal jurisdiction over him. Id.[22] We find the present case similar to Brockman. Ysursa performed legal work for
Frontier, which had substantial activities in Indiana and which, as a result, had
been sued in federal court in Indiana regarding those activities. Ysursa authored
the SLC report regarding the Indiana Derivative Action. He also signed an
affidavit to be used in the Indiana Derivative Action. Thus, as did the
psychologist in Brockman, he voluntarily inserted himself into legal proceedings
being conducted in Indiana, albeit by a federal court instead of a state court. By
performing legal work on, and inserting himself into, the Indiana Derivative
Action, Ysursa “should have expected that it might be possible that he would be
haled into Indiana court.” Id. at 1259.
[23] We find further support for our holding in Foley v. Schwartz, 943 N.E.2d 371(Ind. Ct. App. 2011), trans. denied, another case involving a malpractice suit
filed in Indiana against an out-of-state attorney. In that case, Foley was an Ohio
resident who was injured when he struck an old culvert pipe while riding a four-
wheeler on property in Indiana. The owner of the property knew of the location
of the pipe but failed to warn Foley despite the fact that grass had grown around
it, blocking it from view. Foley retained the services of Schwartz, an attorney
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licensed to practice law in Ohio but not Indiana. Schwartz then made
numerous contacts with Indiana attorneys, soliciting their services and
proposing fee-sharing arrangements with them. Schwartz also sent a letter to
the county highway department, asking that the letter be sent to its insurer so
that a claim could be made, and later sent another letter when the department
did not timely respond. Schwartz also asked to meet with one of the Indiana
attorneys to discuss Foley’s case and indicated that he had spoken with this
attorney about the case. He telephoned the attorney for the Indiana county in
which the accident occurred and discussed a possible claim against the county,
a conversation that included discussion of the requirements of the Indiana Tort
Claims Act. Foley later filed a complaint in Indiana against Schwartz alleging
legal malpractice for his failure to preserve her legal claim against the county by
not filing the required tort claims notice. Schwartz claimed in his answer that
the trial court lacked personal jurisdiction over him and later filed a motion to
dismiss for lack of personal jurisdiction, which the trial court granted.
[24] On appeal, we reversed the trial court. We observed that, in representing Foley,
“Schwartz made a multitude of contacts and purposefully availed himself of the
privilege of conducting activities in Indiana.” Foley, 943 N.E.2d at 381. After
detailing the number of contacts Schwartz had with people and organizations in
Indiana while representing Foley in an accident that occurred in Indiana, we
held that “Schwartz had sufficient minimum contacts with Indiana to confer
specific personal jurisdiction.” Id. at 382 (footnote omitted).
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[25] Our holding in Foley demonstrates that an Indiana court can have personal
jurisdiction over an attorney who never travels to Indiana if that attorney
purposefully avails himself of the privilege of conducting activities in Indiana
that later give rise to the claim of malpractice. And here, Ysursa purposefully
availed himself of the privilege of conducting activities in Indiana by
continually billing Frontier for legal work performed on the Indiana Derivative
Action, by drafting the SLC report regarding the Indiana Derivative Action,
and by filing an affidavit in support of Frontier’s motion for summary judgment
in the Indiana Derivative Action.
[26] We find unavailing Ysursa’s citation to Walden and its progeny. In Walden, a
Nevada couple were returning home from Puerto Rico through Atlanta when a
federal DEA agent searched them and seized $97,000 in cash that the couple
had earned gambling in San Juan. The agent swore out an affidavit in support
of forfeiture of the cash. The Nevada residents then filed a claim against the
agent in federal court in Nevada. The Nevada District Court dismissed the suit,
concluding that the Georgia search and seizure did not establish a basis to
exercise personal jurisdiction over the agent in Nevada. The Ninth Circuit
reversed, holding that the District Court could properly exercise jurisdiction
because the agent had submitted the false probable cause affidavit with the
knowledge that it would affect persons with significant Nevada connections.
[27] The United States Supreme Court granted certiorari and affirmed the District
Court, noting that the search and seizure occurred in Georgia and that the DEA
agent had no contact or connection with Nevada. Walden, 571 U.S. at 288–89.
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The “injury” to the plaintiffs, i.e., that they could not use the seized funds in
Nevada, was insufficient to establish the agent’s minimum contacts to the state.
Id. at 290. The fact that a Nevada attorney contacted the defendant agent or
that the funds originated and were returned to Nevada were insufficient
minimum contacts. Id.
[28] The Georgia-based DEA agent in Walden stands in stark contrast to Ysursa
here. The DEA agent merely searched and seized money belonging to Nevada
residents who were in Georgia. Other than the fact that the owners of the
money he seized lived in Nevada, the agent had no contact with Nevada.
Ysursa, however, intentionally inserted himself into an Indiana-based lawsuit.
[29] The Ysursa Defendants contend that, without Frontier, Ysursa had no contact
with Indiana, and that it is well-settled that the plaintiff cannot be the only link
between the defendant and the forum state. See Advanced Tactical Ordnance Sys.,
LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014) (“after
Walden there can be no doubt that ‘the plaintiff cannot be the only link between
the defendant and the forum. Any decision that implies otherwise can no longer
be considered authoritative.’”) (quoting Walden, 571 U.S. at 286). But it is not
merely Ysursa’s relationship with Frontier that connects him to Indiana, but his
active participation in an Indiana-based lawsuit about a failed Indiana
endeavor.
[30] The Ysursa Defendants also cite John Crane, Inc. v. Shein Law Center, Ltd., 891
F.3d 692 (7th Cir. 2018). In that case, the defendant law firms’ only contact
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with Illinois was in serving discovery on an Illinois-based company in the
course of representing clients in litigation against that company. The suits,
however, were filed in courts in California, Pennsylvania, and Texas, and not in
Illinois. The United States Court of Appeals for the Seventh Circuit held that
the firms’ contacts with Illinois were incidental to the litigation and insufficient
to establish the minimum contacts required for personal jurisdiction. Id. at 696.
The present case is readily distinguishable. Ysursa’s contacts with Indiana were
not merely incidental to out-of-state litigation; instead, unlike the firms in John
Crane, he directly involved himself with proceedings in an Indiana court by
providing legal advice, drafting a legal memorandum, and filing an affidavit in
the Indiana-based litigation, conduct for which the Ysursa Defendants are now
facing malpractice claims.
[31] The Ysursa Defendants also rely on Professional Billing, Inc. v. Zotec Partners,
LLC, 99 N.E.3d 657 (Ind. Ct. App. 2018). In that case, Hulsey acted as CEO for
Zotec, a medical billing firm located in Indiana. Hulsey signed a non-compete
agreement as part of his employment contract. In February 2014, Hulsey
resigned from Zotec. Over two years later, he began to work for Professional
Billing, Inc. (“PBI”) as CEO and purchased an ownership stake in the
company. PBI was a medical billing firm located in Alabama with no
customers, offices, or employees in Indiana, nor any other contracts with
anyone in Indiana. Zotec later filed suit against Hulsey and PBI, and PBI filed a
motion to dismiss for lack of personal jurisdiction. The trial court denied the
motion, and PBI appealed.
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[32] On appeal, we reversed the trial court. We noted that PBI had never had or
solicited customers in Indiana, owned or leased offices or real estate in Indiana,
employed anyone in Indiana, entered into contracts with anyone in Indiana, or
registered to do business in Indiana; PBI also had no communication with
Hulsey while he was employed by Zotec, and it was not until May 2016 that
PBI initiated conversations with Hulsey about joining PBI. Id. at 662. Thus,
PBI did not “purposely avail itself of the trial court’s jurisdiction.” Yet again,
this is in contrast to Ysursa, who intentionally involved himself in the Indiana-
based litigation regarding his client’s failed expansion effort into Indiana.
[33] For all of these reasons, we agree with the trial court that Ysursa had sufficient
minimum contacts with Indiana such that the maintenance of the malpractice
claim does not offend traditional notions of fair play and substantial justice. See
Schneider v. Hardesty, 669 F.3d 693, 702–03 (6th Cir. 2012) (holding that federal
court in Ohio had personal jurisdiction over Utah attorney in a fraud action
against the attorney because he had purposefully availed himself of the benefits
and burdens of Ohio by drafting misleading letters to his client’s investors
regarding the status of their funds, knowing the letters would be sent to
investors in Ohio).
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Reasonableness
[34] Even if a defendant has sufficient minimum contacts with the forum state to
establish personal jurisdiction, we must still determine whether it is reasonable
for a defendant to be haled before an Indiana court. 5 As we explained in Foley:
[T]he United States Supreme Court has set forth five factors
which we must balance in determining reasonableness . . . . The
five [] 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.
943 N.E.2d at 383 (citations omitted). However, our supreme court has held
that “‘[t]he assertion of personal jurisdiction will rarely be found unreasonable
if “minimum contacts” are found.’” Id. (quoting LinkAmerica, 857 N.E.2d at
967).
[35] Considering these factors in light of our determination that sufficient minimum
contacts link the Ysursa Defendants to Indiana, we conclude that it is
5
Frontier argues that the Ysursa Defendants waived any argument regarding the reasonableness of exercising
jurisdiction because they did not present any such argument to the trial court. It is well settled that “an
appellant may not present an argument that was not presented to the trial court[.]” Ind. Bureau of Motor
Vehicles v. Gurtner, 27 N.E.3d 306, 312 (Ind. Ct. App. 2015). The Ysursa Defendants admit that they did not
present any reasonableness argument to the trial court but contend that we should still consider their
appellate claim because the trial court itself appears to have addressed the reasonableness of exercising
jurisdiction. Because we prefer to address claims on their merits when possible, we decline to hold that
Frontier waived this argument.
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reasonable to permit the claim against the Ysursa Defendants to proceed in
Indiana courts. The practical burden on the defendants is not unreasonable.
The Ysursa Defendants are based in neighbor state Illinois. The present case
was filed in Marion County, Indiana, which is approximately 240 miles away
from Belleville, Illinois, not an extreme distance. Moreover, even if this burden
factor did weigh against allowing the case to proceed in Indiana, the remaining
factors weigh in favor of allowing the case to proceed. Indiana certainly has an
interest in adjudicating claims of malpractice that occurred during an Indiana-
based lawsuit. And, as the trial court noted, if the plaintiffs were required to
bifurcate their claims, it would be a burden to all parties to conduct two trials in
two different fora. Indeed, “Plaintiff would have to coordinate its case between
two separate jurisdictions, while Defendants would have to coordinate any joint
defenses in the separate jurisdictions that they may employ during this matter.”
Appellant’s App. p. 33. Under these facts and circumstances, the trial court did
not err by concluding that exercising personal jurisdiction over the Ysursa
Defendants is reasonable.
Conclusion
[36] Because Ysursa actively participated in the Indiana Derivative Action, he had
the necessary minimum contacts with Indiana for the trial court to exercise
specific personal jurisdiction over him. And under the facts and circumstances
of this case, the trial court’s exercise of personal jurisdiction over Ysursa is not
unreasonable. We therefore affirm the judgment of the trial court.
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[37] Affirmed.
Riley, J., and Tavitas, J., concur.
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