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FILED
FOR PUBLICATION
Jan 31 2011, 9:57 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: DAVID W. CRAIG SCOTT A. FAULTLESS Craig Kelley & Faultless Indianapolis, Indiana

ATTORNEYS FOR APPELLEE ROBERT L. SCHWARTZ: RICHARD T. MULLINEAUX CRYSTAL G. ROWE Kightlinger & Gray, LLP New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
CYNTHIA L. FOLEY, Appellant-Plaintiff, vs. ROBERT L. SCHWARTZ and DANNY L. COLLINS, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 78A04-1005-CT-305

APPEAL FROM THE SWITZERLAND CIRCUIT COURT The Honorable James D. Humphrey, Special Judge Cause No. 78C01-0811-CT-194

January 31, 2011

OPINION - FOR PUBLICATION

BROWN, Judge

Cynthia Foley appeals the trial courts 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 Foleys 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 property 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. Appellants Appendix at 81. Collins knew that the pipe was on his property, but he did not warn Bastin. At one point while operating the ATV, Bastin came upon a 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
We note that Foleys Statement of Facts in her appellants brief contains argument. We remind Foley that the Statement of Facts should be devoid of argument. Ramsey v. Review Bd. of Ind. Dept of Workforce Dev., 789 N.E.2d 486, 488 (Ind. Ct. App. 2003).
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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. . . . ***** 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] doctors 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. ... ***** 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 . . . . 3

Id. at 247-248. That same day, Schwartz sent a letter to Lazar Iglendza with State Farm Insurance Company, Collinss 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 250. The letter was addressed to a post office box in Bloomington, 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 English 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 abovecaptioned 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. ***** I understand that you may associate with additional co-counsel as needed in the prosecution of this claim at your discretion . . . . ***** . . . . 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. 4

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 Swingler, both attorneys practicing in Indiana, asking if they were interested in joining as cocounsel on Foleys 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. He sent a letter dated March 31, 2008, to the County Highway Department in Florence, Indiana (the "Highway Department"), asking it 5

to "[k]indly direct this letter to your insurance carrier so that a claim may be made." Id. at 298. Schwartz sent another letter dated April 23, 2008, to the Highway Department stating that "[w]e have had no response" regarding the March 31, 2008 letter, and asking to "[p]lease contact us within 5 days, to advise us of your insurance company or as to how you will be handling this claim." Id. at 299. At some point "in the later stages of the case" Schwartz contacted Gregory Coy, who at that time was the attorney for Switzerland County.2 Id. at 387. Schwartz initially phoned Coy who returned Schwartzs call, and they spoke "about the potential claim that [Foley] thought she had in Indiana against Switzerland County, or any party that Switzerland County would have hired to do the work that resulted in the . . . pipes that were on the property." Id. at 391. During the conversation, Coy gave "some direction" to Schwartz about the case against Switzerland County and discussed "the immunity of the [S]tate . . . ." Id. at 413. Schwartz sent a letter dated April 29, 2008, to Stan White, an attorney located in Indianapolis, Indiana, which stated: Dear Mr. White: I am trying to email you a photograph that shows the ATV partially, as it was turned over in the grass. I will be sending you another group of pictures of the entire area at the scene of the accident.

Coy is currently serving as judge for the Switzerland Circuit Court. On December 16, 2009, Judge Coy recused from this case, and on January 8, 2010, Judge James D. Humphrey was appointed special judge.

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Cynthia Foley returned to me after speaking with the driver of the ATV. He did not remember the make and model of the vehicle and she did not feel comfortable calling the owner about it. A complete explanation of the accident will follow and I will be glad to meet with you and Ms. Foley in all respects. I would agree to a 1/6 share of attorney fee plus expenses since the bulk of the work appears to be ahead of you. . . . Id. at 300.3 Schwartz sent White another letter dated April 30, 2008 via FedEx to Whites Indianapolis address which stated in part: Dear Mr. White: Thank you for speaking with me on April 29, 2008, regarding the claim of Cynthia Foley. ***** Shortly after the incident [on May 27, 2007], the pipe was removed by Switzerland County. Mr. Collins has a Home Owners Insurance policy with State Farm Insurance Company, with a $300,000.00 limit. Recently, an adjuster from State Farm Insurance Company informally told me that they may deny liability . . . . We have not filed any actions at this time. ***** I do not believe there would be a good claim against Switzerland County, Indiana, because of IC 34-13-3-3 Immunity of governmental entity or employee. . . . In any event, a tort claim was never made. . . . Id. at 304-305.

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It appears that this letter was sent via fax. Appellants Appendix at 300.

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On May 1, 2008, Foley terminated Schwartzs employment as her representative, and on that same day Schwartz sent a letter to Foley at her Cincinnati, Ohio address, stating in part: I had hoped you would not simply fire me, but that we would find Indiana Counsel together to present your claim, and that all of us could work together, without additional fee. Perhaps I did not make it clear that this would be the best way to proceed. I am still willing to work with whatever Counsel you may choose. I have a rather large box of documents for you, and it would be much more efficient if I could help work with these documents and your new attorney. I was talking with Mr. White before I realized you involved yourself with another Indiana attorney. Mr. White is not permitted to communicate with you if you have signed up with other Indiana Counsel. You must make a decision of how to proceed. ... Id. at 306. Schwartz drafted a letter dated May 5, 2008, to William Kelley of the law firm Craig, Kelley & Faultless in Batesville, Indiana, indicating that "[p]rior to [Kelleys] letter of May 1, 2008, [Schwartz] was not aware that [Kelleys] office was retained," and that Schwartz would forward his documents related to Foleys case to Kelley. Id. at 307. Schwartz drafted another letter to Kelley dated May 7, 2008, in which he indicated that he was sending Foleys "entire file."4 Id. at 308.

In addition to the letters discussed above, the record reveals that Schwartz drafted eight letters to Foley at her Cincinnati, Ohio address between August 2, 2007 and April 30, 2008. Also, the record contains letters from Iglendza to Schwartz dated December 5, 2007 and December 12, 2007, and letters to Iglendza from Schwartz addressed to State Farms Bloomington, Illinois address dated December 10, 2007 and February 14 2008. Finally, the record contains correspondence related to Foley between Schwartz and various persons or entities not located in Indiana as follows: (A) Old Mutual, located in Lincoln, Nebraska, on August 2, August 13, September 10, October 15, and October 23, 2007; (B) Health

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On November 7, 2008, Foley filed a complaint against Schwartz and Collins alleging Count I, legal malpractice against Schwartz for failure to preserve her claim against Switzerland County by failing to file a tort claim notice before November 24, 20075 pursuant to Ind. Code

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