Goodson v. Carlson

Decision Date03 June 2008
Docket NumberNo. 45A04-0711-CV-618.,45A04-0711-CV-618.
PartiesPhillip R. GOODSON, Appellant-Defendant, v. Barbara CARLSON and David Carlson, Appellees-Plaintiffs.
CourtIndiana Appellate Court

B.J. Brinkerhoff, Kopka, Pinkus, Dokin & Eads, P.C., Crown Point, IN, Attorney for Appellant.

Kevin W. Marshall, The Law Office of Smith & Marshall, Hammond, IN, Attorney for Appellees.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Phillip Goodson and intervenor, State Farm Mutual Automobile Insurance Company ("State Farm"), appeal the trial court's denial of his motion to set aside a default judgment granted to Barbara and David Carlson.

We reverse and remand.

ISSUE

Whether the service of process on Goodson was adequate.

FACTS

On September 5, 1999, Barbara Carlson was a passenger in a vehicle driven by her daughter, Marsha Carlson. Marsha was driving north on Highland's Kennedy Avenue as Goodson was turning left from Kennedy Avenue onto 41st Street. According to an Indiana Officers Standard Crash Report (the "Crash Report"), Marsha proceeded through the intersection of Kennedy Avenue and 41st Street, despite having a red light; Marsha's vehicle struck the passenger side of Goodson's vehicle. Based on the statements of Goodson and a witness not involved in the accident, the investigating officer issued a citation to Marsha for disregarding an automatic signal. The Crash Report listed Goodson's address as 2130 Meadow Lane, Schererville, Indiana. It also listed Goodson's automobile insurer as "Illinois Founders." (App.79).

Following a bench trial on the traffic infraction, Marsha submitted a plea and received a disposition of not guilty on July 9, 2001.1 On July 17, 2001, the Carlsons filed a complaint against Goodson, alleging that Goodson was negligent in the operation of his vehicle. On July 18, 2001, the Lake County Sheriff attempted to serve Goodson with a summons at his address, as listed on the Crash Report: 2130 Meadow Lane, Schererville. The service, however, was "[u]nsuccessful" because the summons did not list an apartment unit for Goodson, which was noted on the return of service to the clerk's office. (App.15).

Approximately six months later, in January of 2002, counsel for the Carlsons accessed Goodson's records from the Bureau of Motor Vehicles (the "BMV"). Goodson's records listed 2130 Meadow Lane, Schererville as his address as of March 28, 2001. The record reflected the same address in 1998, 1999, and 2000. The address listed for 1999, however, included apartment number six. The Carlsons, however, made no attempt to serve Goodson at the apartment number listed in his BMV records.

On the trial court's own motion, it held a hearing on May 1, 2002, for the purpose of dismissing the Carlsons' case pursuant to Indiana Trial Rule 41(E). The trial court withheld dismissal and granted the Carlsons ninety days from May 1, 2002 to file an alias summons.

In May of 2002, counsel for the Carlsons again retrieved Goodson's records from the BMV. The records listed the same addresses as in January of 2002. The Carlsons did not file an alias summons and took no further action until April 8, 2003, when the Carlsons filed a praecipe for service by publication, directing The Lowell Tribune, a weekly newspaper circulated in Lake County, to publish notice of the Carlsons' complaint.

The Lowell Tribune published the notice on April 15, 22, and 29 of 2003. On May 8, 2003, the Carlsons filed their proof of publication. On November 4, 2003, the Carlsons filed a motion for default judgment, which the trial court granted on November 26, 2003. In July of 2004, State Farm—the Carlsons' automobile insurer—filed a motion to intervene. The trial court granted State Farm's request on July 8, 2004.

Illinois Founders Insurance ("Founders")—Goodson's automobile insurer at the time of the accident—learned of the Carlsons' lawsuit and default judgment on or about March 17, 2006, after receiving a letter from the Carlsons' counsel informing it of the same. On May 24, 2007, Founders, on behalf of Goodson,2 filed a motion to set aside the default judgment pursuant to Trial Rule 60(B). Goodson argued that service by publication "did not afford him his rights under both Indiana Trial Rule 4.13 and the federal and Indiana Due Process Clauses, respectively." (App.60). Specifically, Goodson argued that the Carlsons failed to conduct a diligent search for him.

In their response to Goodson's motion, the Carlsons asserted that his motion was untimely as Trial Rule 60(B) requires a motion brought pursuant to subsection (B)(4)3 to be filed within one year "after the judgment, order or proceeding was taken. ..." T.R. 60(B). Goodson filed a reply on July 6, 2007, asserting that "Defendant is not bringing its Motion to Set Aside Default Judgment under Rule 60(B)(4), but instead under 60(B)(8)[4] and Plaintiffs' failure to comply with the Trial rules and the constitutional mandates of due process." (App.110) (emphasis added).

The trial court heard arguments on Goodson's motion to set aside the default judgment on July 12, 2007, after which it summarily denied Goodson's motion. On or about August 13, 2007, Goodson filed a motion to correct error, which the trial court denied on August 22, 2007. Following a trial on September 7, 2007, on the issue of damages only, a jury awarded the Carlsons damages in the amount of $351,163.00.

Additional facts will be provided as necessary.

1. Service of Process

Goodson asserts that the trial court lacked personal jurisdiction over him because the service of process was ineffective.5 Goodson argues that the Carlsons' attempts at service did not comport with the Due Process Clause of the Fourteenth Amendment.

In general, we review a trial court's denial of a motion to set aside judgment for an abuse of discretion, and in so doing, determine whether the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment. However, the existence of personal jurisdiction over a defendant is a question of law. Thus, we review a trial court's determination regarding personal jurisdiction de novo. A plaintiff is responsible for presenting evidence of a court's personal jurisdiction over the defendant, but the defendant ultimately bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence, unless that lack is apparent on the face of the complaint.

LePore v. Norwest Bank Indiana, N.A., 860 N.E.2d 632, 634 (Ind.Ct.App.2007) (internal citations omitted). Where, as here, only a paper record has been presented to the trial court, "we are in as good a position as the trial court to determine the existence of jurisdictional facts and will employ de novo review as to those facts." Munster v. Groce, 829 N.E.2d 52, 57 (Ind. Ct.App.2005).

Ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant. Id. Furthermore, "a judgment entered against a defendant over whom the trial court did not have personal jurisdiction is void." Id.

In Munster, this court addressed the due process requirements for effective service.6 Citing extensively from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Munster court held that "alternatives to personal service and actual notice of a suit, such as publication, are permissible" only if the interested party's "whereabouts cannot reasonably and in the exercise of due diligence be ascertained." Munster, 829 N.E.2d at 58.

Notice by publication is governed by Trial Rule 4.13, which provides, in relevant part, as follows:

Praecipe for summons by publication. In any action where notice by publication is permitted by these rules or by statute, service may be made by publication. Summons by publication may name all the persons to be served, and separate publications with respect to each party shall not be required. The person seeking such service, or his attorney, shall submit his request therefor upon the praecipe for summons along with supporting affidavits that diligent search has been made that the defendant cannot be found, has concealed his whereabouts, or has left the state, and shall prepare the contents of the summons to be published.

Thus, "Trial Rule 4.13 allows the use of this form of `service' or notice, but only if the party seeking publication files with the trial court `supporting affidavits [showing] that diligent search has been made that the defendant cannot be found, has concealed his whereabouts, or has left the state.'" 829 N.E.2d at 58.

Furthermore, "the Due Process Clause requires that in order for constructive notice of a lawsuit to be sufficient, a party must exercise due diligence in attempting to locate a litigant's whereabouts." Id. at 60. Accordingly, in order for constructive service "to be constitutionally effective there must be a showing by the plaintiff or party who sought such service that due diligence to ascertain the defendant's current whereabouts was exercised and service" through publication was reasonable under the circumstances. See id. at 60-61.

In this case, the Carlsons initially attempted to serve Goodson by delivering or leaving a copy of the summons and the complaint at his residence pursuant to Trial Rule 4.1, which provides that service may be made upon an individual by delivering a copy of the summons and complaint to him personally or by leaving a copy of the summons and complaint at his residence. The sheriff, however, did not deliver or leave a copy of the complaint and summons as the summons failed to provide an apartment number, which was noted on the return of service to the clerk's office.7

The Carlsons took no...

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