Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANT: JASON M. KUCHMAY Federoff Law Firm Fort Wayne, Indiana ATTORNEY FOR APPELLEE: DAVID C. VAN GILDER Van Gilder & Trzynka Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE ESTATE OF JAMES E. BAKER, ) DECEASED. ) ) TERRY BAKER, ) ) Appellant-Respondent, ) ) vs. ) ) BERT BAKER, Personal Representative, ) ) Appellee-Petitioner. )

No. 02A05-0503-CV-155

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Phillip E. Houk, Magistrate Cause No. 02D01-0401-ES-8

November 23, 2005 OPINION - FOR PUBLICATION SHARPNACK, Judge

Terry Baker ("Terry") files this interlocutory appeal from the probate court's order denying his motion to dismiss for lack of personal jurisdiction. Terry raises three issues, which we consolidate and restate as whether the probate court had personal jurisdiction over Terry. We affirm. The relevant facts follow. Terry Baker and Bert Baker are the sons of James Baker. Bert lives in Indiana, and Terry lives in Georgia, where he owns and operates an assisted care facility called Your House. Prior to September 2002, James owned a house and lived in Allen County, Indiana. James owned and maintained three accounts

(checking, savings, and "Liquid Gold savings") with Midwest America Federal Credit Union ("Midwest Credit Union") in Fort Wayne, Indiana. Appellant's Appendix at 70. James also owned a certificate of deposit account with Bank One in Fort Wayne. In September 2002, Terry came to Indiana to take James to Georgia to live in his assisted care facility. James did not sell his house in Indiana. On September 27, 2002, while in Georgia, James appointed Terry as his attorney in fact by executing a written general power of attorney, which allowed Terry, among other things, to sign and issue checks and to deal with any real or personal property. Thereafter, Terry contacted Midwest Credit Union and Bank One to change the mailing address for the bank statements to his own business address at Your House. While in Georgia, Terry wrote the following checks from James's Midwest Credit Union checking account: (1) $1,500.00 to Your House on September 1, 2002; (2) $1,500.00 to Your House on October 1, 2002; (3) $1,500.00 to Your House on November 5, 2002; (4) $83.40 to Verizon on November 15, 2002; (5) $57.88 to Directv on

November 15, 2002; (6) $66.48 to Centennial Wireless on November 15, 2002; (7) $300.00 to Kroger Solutions for James's medicine on December 3, 2002; (8) $1,500.00 to Your House on December 5, 2002; (9) $5,000.00 to Your House as a "Loan" on December 19, 2002; (10) $2,500.00 to Your House as a "Loan" on December 22, 2002; (11) $925.00 to Met Life Auto and Home on January 10, 2003; (12) $306.37 to Kroger Solutions for medicine on February 18, 2003; (13) $4,000.00 to Chase Platinum Mastercard on April 5, 2003; (14) $5,400.00 to Your House on July 8, 2003; (15) $5,400.00 to Your House on October 1, 2003; (16) $11,000.00 to Terry's wife, Peggy Baker, as a "Gift" on December 8, 2003; (17) $11,000.00 to Terry as a "Gift" on December 8, 2003; (18) $11,000.00 to Bill Heard Chevrolet on December 1, 2003; and (19) $7,051.29 to Caldwell & Cowan Funeral Home on December 12, 2003. Appellant's Appendix at 93-94, 100-101. Terry also made the following transfers in James's

Midwest Credit Union accounts: (1) $22,000.00 from James's savings account to his checking account on December 4, 2003; (2) $26,000.00 from James's savings account to his checking account on December 11, 2003; and (3) $10,000.00 from James's Liquid Gold savings account to his checking account on December 11, 2003. On December 4, 2003, James and Terry met with an agent for Modern Woodman of America in Georgia, and James's Indiana Bank One certificate of deposit totaling $61,407.12 was transferred to Modern Woodmen to purchase an annuity. Terry was the beneficiary on the annuity. On December 14, 2003, James died while in Georgia. In January 2004, Bert filed a petition for appointment of personal representative of James's estate with the Allen 3

County probate court in Indiana, and the probate court appointed Bert as personal representative to administer James's estate. In February 2004, Terry signed a consent to unsupervised administration of James's estate in the Allen County probate court. 1 In August 2004, Bert filed a petition to recover assets and alleged that Terry was in possession of property that belonged to James's estate. In the petition, Bert alleged that Terry had possession of funds totaling $125,534.09, which consisted of the checks that Terry wrote from James's checking account and the funds that were transferred from James's certificate of deposit into the annuity that was paid out to Terry after James's death. In October 2004, Terry filed a motion to dismiss Bert's petition to recover the assets for lack of personal jurisdiction. Terry and Bert submitted affidavits and exhibits to support their respective arguments regarding jurisdiction. The probate court held a hearing on Terry's motion to dismiss, and Terry and Bert's attorneys provided argument. Thereafter, the probate court issued the following order denying Terry's motion: ***** 1. As evidenced by a multitude of financial transactions conducted by accessing the decedent's Indiana bank accounts, under TR 4.4, Terry Baker was doing business in the State of Indiana. The cause of action, which the Personal Representative [Bert] is pursuing, arises out of those transactions. The contacts to Indiana were initiated by Terry Baker and included the writing of checks and making of phone calls to an Indiana banking institution.

2.

3.

1

A copy of the consent to unsupervised administration is not included in Terry's Appendix.

4

4.

James Baker lived a majority of his life in Indiana. He spent only the last 15 months of his life in Georgia where he resided in an assisted living facility owned by Terry Baker. When he died, James Baker owned both personal and real property located in Indiana. The estate is being administered in Indiana and Terry Baker has signed a Consent to Unsupervised Administration. Indiana is a convenient forum in which to administer this estate.

5.

6.

Therefore, and based upon TR 4.4 and applicable case law, the Court finds the allegation of jurisdiction to be proper and denies the Motion to Dismiss. Appellant's Appendix at 4. Pursuant to Ind. Rule of Appellate Procedure 14(B), Terry moved to certify the probate court's order, which the probate court granted. Thereafter, we accepted jurisdiction. The sole issue is whether the probate court had personal jurisdiction over Terry. "Personal jurisdiction is a court's power to bring a person into its adjudicative process and render a valid judgment over a person." Anthem Ins. Cos., Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind. 2000) (internal quotations and citation omitted). When a defendant argues a lack of personal jurisdiction, the plaintiff must present evidence to show that there is personal jurisdiction over the defendant. Id. However, the defendant ultimately bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence, unless the lack of jurisdiction is apparent on the face of the complaint. Id. The existence of personal jurisdiction over a defendant is a

constitutional requirement in rendering a valid judgment, mandated by the Due Process Clause of the Fourteenth Amendment. Id. at 1237. 5 When we review questions of

whether personal jurisdiction exists, we employ a de novo standard of review. Id. at 1238. In determining whether an Indiana court has personal jurisdiction, a court must proceed with a two-step analysis. Id. at 1232. First, the court must determine if the defendant's contacts with Indiana fall under our equivalent of a "long-arm statute," Ind. Trial Rule 4.4. Id. at 1231-1232. Second, if the contacts fall under Ind. Trial Rule 4.4, the court must then determine whether the defendant's contacts satisfy federal due process analysis. Id. at 1232. We will review each prong of the analysis in turn. A. Long Arm Statute

Download Terry Baker v. Bert Baker, Pers. Rep. of Estate of James E. Baker, deceased.pdf

Indiana Law