MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Feb 29 2016, 9:16 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Thomas L. Stucky
Blume, Connelly, Jordan, Stucky &
Lauer, LLP
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shequita Avery,                                          February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1505-SC-457
        v.                                               Appeal from the Allen Superior
                                                         Court
Purdue University-IPFW,                                  The Honorable Jennifer DeGroote,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         02D03-1409-SC-15200



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016     Page 1 of 9
                                Case Summary and Issue
[1]   Purdue University–IPFW (“IPFW”) filed a small claims action against

      Shequita Avery to recover scholarship funds IPFW contends were erroneously

      applied to Avery’s financial aid account. Avery filed a motion to dismiss

      IPFW’s complaint for lack of personal jurisdiction. The small claims court

      denied Avery’s motion to dismiss and certified the matter for interlocutory

      appeal. We accepted jurisdiction. Concluding the small claims court erred in

      denying Avery’s motion to dismiss, we reverse and remand.



                            Facts and Procedural History
[2]   Avery is a lifetime resident of Alabama and single mother of four children. She

      is employed as a phlebotomist and earns approximately $18,000.00 per year.

      Her father, an Army veteran, has resided in Indiana since 1973 and lives with a

      service-connected disability. He travels to Alabama to visit Avery and his

      grandchildren for holidays. Avery has never been to Indiana.


[3]   In 2013, the Indiana Department of Veterans’ Affairs (“DVA”) informed

      Avery’s father that his children may be eligible for tuition assistance through

      Indiana’s Child of a Disabled Veteran Program (known as CVO). See Ind.

      Code §§ 21-14-4-1 to -8. Avery contacted the DVA to inquire about her

      eligibility as an Alabama resident. According to Avery, a DVA representative

      told her the scholarship would only be approved for the cost of in-state tuition

      and that a state university could, in its discretion, accept the scholarship for a


      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 2 of 9
      non-resident. Avery requested an application from the DVA and applied for a

      CVO scholarship. Under the “Student Data” section, Avery listed an Alabama

      address and an Alabama phone number. Appendix of Appellant at 17. The

      DVA certified Avery’s eligibility, and Avery registered for online classes with

      IPFW. IPFW awarded Avery a CVO scholarship totaling $3,117.00, which

      covered the cost of tuition for Avery’s spring 2014 semester because IPFW does

      not distinguish between residents and non-residents for online class tuition.


[4]   Several months later, in April, IPFW rescinded the scholarship, citing Avery’s

      non-resident status. The Assistant Director of Financial Aid sent Avery an

      email stating Avery was ineligible for the scholarship and that it was not clear

      from the CVO paperwork that Avery is a resident of Alabama. At this point in

      the semester, Avery was not permitted to withdraw and owed IPFW the full

      scholarship amount.


[5]   In September 2014, IPFW sued Avery in small claims court for the amount of

      the scholarship plus $1,000.00 in attorney fees and $94.00 in court costs, for a

      total of $4,198.00. Rather than file an answer, Avery filed a motion to dismiss

      for lack of personal jurisdiction under Indiana Trial Rule 12(B)(2). IPFW did

      not file a response. The small claims court held a hearing and denied Avery’s

      motion to dismiss. Thereafter, Avery filed a motion to certify the matter for

      interlocutory appeal pursuant to Indiana Appellate Rule 14(B). The small

      claims court certified its order denying Avery’s motion to dismiss on April 22,

      2015, and we accepted jurisdiction over the appeal on July 6, 2015.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 3 of 9
                                 Discussion and Decision
                                     I. Standard of Review
[6]   Avery contends the small claims court erred in denying her motion to dismiss

      for lack of personal jurisdiction under Indiana Trial Rule 12(B)(2). Jurisdiction

      is presumed in Indiana and need not be alleged in the complaint. MBNA Am.

      Bank, N.A. v. Rogers, 835 N.E.2d 219, 221 (Ind. Ct. App. 2005), trans. denied.

      Unless a lack of jurisdiction is apparent on the face of the complaint, the party

      challenging jurisdiction has the burden of establishing the lack thereof by a

      preponderance of the evidence. Attaway v. Omega, 903 N.E.2d 73, 76 (Ind. Ct.

      App. 2009).

              The legal question of whether personal jurisdiction exists given a
              set of facts is reviewable de novo. However, the presence of
              personal jurisdiction is based on the existence of jurisdictional
              facts. When determining these facts, the trial court is performing
              its classic fact-finding function, often evaluating the character and
              truthfulness of witnesses, and is in a better position to determine
              these issues than a reviewing court. For this reason, a trial court’s
              findings of jurisdictional facts are generally reviewed for clear
              error.


      Anthem Ins. Cos., Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1238 (Ind.

      2000), superseded by rule on other grounds.


[7]   It appears, however, that the small claims court did not make any findings of

      jurisdictional facts. We have previously held, “Where the trial court did not

      find jurisdictional facts, we may accept the plaintiff’s well-pleaded facts to the


      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 4 of 9
      extent they are not challenged, and we may view challenged facts in favor of the

      plaintiff.” JPMorgan Chase Bank, N.A. v. Desert Palace, Inc., 882 N.E.2d 743, 747

      (Ind. Ct. App. 2008), trans. denied. But the complaint here does not mention

      any facts relevant to the jurisdiction question. The complaint indicates IPFW

      filed an “account” claim against Avery, but the section that is supposed to

      contain “[a] brief statement of the nature of the claim” merely states, “Pursuant

      to IC 33-37-3-1 and IC 21-14-2-11, Plaintiff may collect attorney fees and

      collection costs. Defendant is therefore liable for the principal amount of

      $3117.00, attorney fees in the amount of $1000.00, plus interest and costs.”

      Supplemental Appendix of Appellant at 1. IPFW did not file a response to

      Avery’s motion to dismiss, nor a brief in this appeal—meaning IPFW has never

      challenged Avery’s account of the underlying facts. In this situation, we have

      no choice but to accept the facts as Avery presented them in her motion to

      dismiss.


[8]   Finally, we note that when an appellee fails to submit a brief, we do not

      undertake the burden of developing an argument on its behalf. Trinity Homes,

      LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Instead, we review for prima

      facie error; that is, error “at first sight, on first appearance, or on the face of it.”

      Id. (citation omitted).


                                   II. Personal Jurisdiction
[9]   Personal jurisdiction refers to a court’s power to impose judgment on a

      particular defendant. Boyer v. Smith, 42 N.E.3d 505, 509 (Ind. 2015). Indiana


      Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 5 of 9
       Trial Rule 4.4(A) sets out examples of activities that often support jurisdiction,

       but it also includes a “catchall” provision permitting the exercise of jurisdiction

       “on any basis not inconsistent with the Constitutions of this state or the United

       States.” Id. (quoting Ind. Trial Rule 4.4(A)). In LinkAmerica Corp. v. Cox, 857

       N.E.2d 961 (Ind. 2006), our supreme court held this “catchall” provision

       “reduce[s] analysis of personal jurisdiction to the issue of whether the exercise

       of personal jurisdiction is consistent with the Federal Due Process Clause.” Id.

       at 966-67.


[10]   Before an Indiana court can properly assert personal jurisdiction over a

       defendant, the Due Process Clause of the Fourteenth Amendment requires 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. at 967 (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316

       (1945)) (internal quotation marks omitted). If the defendant’s contacts with the

       state are so “continuous and systematic” that the defendant should reasonably

       anticipate being haled into the state’s courts for any matter, the defendant is

       subject to general jurisdiction. Id. (citing Helicopteros Nacionales de Colombia, S.A.

       v. Hall, 466 U.S. 408, 415 n.9 (1984)). If the defendant’s contacts with the state

       are not “continuous and systematic,” the defendant may be subject to specific

       jurisdiction “if the controversy is related to or arises out of the defendant's

       contacts with the forum state.” Id. (citing Helicopteros, 466 U.S. at 414 & n.8).


[11]   Specific jurisdiction requires purposeful availment. Id. The defendant’s

       contacts must include some action by which the defendant “purposefully

       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 6 of 9
       avails” herself of “the privilege of conducting activities within the forum State,

       thus invoking the benefits and protections of its laws.” Anthem, 730 N.E.2d at

       1233-34 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). A single contact

       with the forum state may be sufficient to establish specific jurisdiction if the

       contact creates a “substantial connection” with the forum state and the suit

       arises from that connection. LinkAmerica, 857 N.E.2d at 967 (quoting McGee v.

       Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). When evaluating a defendant’s

       contacts with the forum state, a court should consider:


               (1) whether the plaintiff’s claim arises from the defendant’s forum
               contacts; (2) the overall contacts of the defendant or its agent
               with the forum state; (3) the foreseeability of being haled into
               court in that state; (4) who initiated the contacts; and (5) whether
               the defendant expected or encouraged contacts with the state.


       Wolf’s Marine, Inc. v. Brar, 3 N.E.3d 12, 15 (Ind. Ct. App. 2014).


[12]   But even if a defendant’s contacts are sufficient to confer jurisdiction, due

       process requires the assertion of jurisdiction over the defendant be reasonable.

       LinkAmerica, 857 N.E.2d at 967. Reasonableness of exercising jurisdiction over

       a defendant is determined by weighing the following factors:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 7 of 9
       Id. at 967-68 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)).

       “The fairness inquiry is separate from the contacts question and may be used to

       defeat jurisdiction even if the defendant has sufficient contacts with the forum

       state.” Brockman v. Kravic, 779 N.E.2d 1250, 1257 (Ind. Ct. App. 2002).


[13]   We conclude Avery’s contacts with the State of Indiana are sufficient to

       establish specific jurisdiction but that exercise of jurisdiction over Avery would

       not be reasonable. Although Avery has never visited or resided in Indiana, she

       contacted Indiana’s DVA to inquire about CVO scholarships. After speaking

       with a DVA representative, Avery requested an application for the program.

       Our state seal appears at the top of the application, which was titled “2013-14

       Application for Remission of Fees for a Child of a Disabled Indiana Veteran or

       a POW/MIA.” App. at 17. The application also states that the required

       disclosure of applicants’ Social Security numbers complies with Indiana Code

       section 4-1-8-1. Avery completed the application, submitted it to the DVA, and

       accepted the scholarship that was offered. She then registered for online classes

       with IPFW, a state university, and participated in the classes until IPFW

       rescinded the scholarship. These contacts, albeit limited, were initiated by

       Avery and gave rise to IPFW’s claim. Under these circumstances, Avery

       purposely availed herself of the privilege of conducting activities in Indiana. See

       Anthem, 730 N.E.2d at 1233-34.


[14]   Nonetheless, we conclude the small claims court erred in denying Avery’s

       motion to dismiss because the exercise of jurisdiction over Avery would offend

       due process. Given our standard of review in this case, we believe Avery

       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016   Page 8 of 9
       demonstrated it would be unreasonable to require her to litigate in Indiana.

       Avery is a single working mother of four children, ages three to fourteen years

       old, and she earns only $18,000.00 per year. Requiring Avery to miss work,

       arrange childcare, and travel to Indiana would create a substantial hardship that

       would outweigh IPFW’s interest in obtaining convenient relief. Cf. McGee, 355

       U.S. at 223-23 (holding the burden on individual insurance claimants who

       likely cannot afford to litigate in foreign forums outweighs any inconvenience

       suffered by an insurance company required to litigate in a state where it had no

       offices and only one customer).1



                                                  Conclusion
[15]   Avery established prima facie error in the small claims court’s denial of her

       motion to dismiss for lack of personal jurisdiction. We therefore reverse and

       remand this case to the small claims court for proceedings consistent with this

       opinion.


[16]   Reversed and remanded.


       Barnes, J., and Altice, J., concur.




       1
         Given the particular facts before us and our standard of review, the remaining reasonableness factors do not
       significantly favor or disfavor the exercise of jurisdiction in this case. See LinkAmerica, 857 N.E.2d at 967.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1505-SC-457 | February 29, 2016            Page 9 of 9
