Anderson v. Wayne Post 64, Am. Legion Corp.

• Citation: 4 N.E.3d 1200
• Decision Date: 28 February 2014
• Docket Number: No. 49A05–1309–CT–442.,49A05–1309–CT–442.
• Parties: Mary L. ANDERSON, Appellant–Plaintiff, v. WAYNE POST 64, AMERICAN LEGION CORP., Appellee–Defendant.
• Court: Court of Appeals of Indiana

4 N.E.3d 1200

Mary L. ANDERSON, Appellant–Plaintiff,

v.WAYNE POST 64, AMERICAN LEGION CORP., Appellee–Defendant.

No. 49A05–1309–CT–442.

Court of Appeals of Indiana.

Feb. 28, 2014.

Charles R. Grahn, William W. Gooden, Jennifer F. Perry, Clark, Quinn, Moses, Scott & Grahn, LLP, Indianapolis, IN, Attorneys for Appellant.

Jason A. Scheele, Andrew L. Palmison, Rothberg Logan & Warsco LLP, Fort Wayne, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Mary L. Anderson appeals the trial court's order setting aside its default judgment against Wayne Post 64, American Legion Corporation (“American Legion”). Anderson raises two issues for our review, but we address only the following dispositive issue: whether the trial court erred when it set aside its default judgment against the American Legion as void because the method employed by Anderson to serve process on the American Legion was not the method best calculated to inform the American Legion of Anderson's lawsuit.¹ We affirm.

FACTS AND PROCEDURAL HISTORY

On June 20, 2010, Anderson slipped and fell on property owned by the American Legion in Marion County. On June 15, 2012, Anderson filed a complaint for damages against the American Legion in the Marion Superior Court. On that date, Robert Eakins was the registered agent for the American Legion. Anderson requested service on the American Legion through the Marion County Sheriff's Department.

On June 20, Deputy Travis Jefferson filed the Sheriff's return of service with the clerk's office. According to the return of service, Deputy Jefferson left a copy of the complaint and summons at 601 South Holt Road, Eakins' registered address. The deputy later testified that he left those documents “attached to the door” at “10:48 a.m.” because “Eakins was not present at that time, nor did it appear any other person was present.” Appellant's App. at 178. Deputy Jefferson also mailed a copy of the complaint and summons by first class mail to that address.

The American Legion failed to appear or respond to Anderson's complaint. On July 24, 2012, the court entered a default judgment ² against the American Legion, which the court later amended to reflect a judgment in the amount of $500,000.

On April 26, 2013, the American Legion moved to set aside the default judgment pursuant to Indiana Trial Rule 60(B)(6), arguing that the judgment was void because Anderson had not served her complaint on the American Legion and, therefore, the court had not acquired personal jurisdiction over the American Legion.³ The American Legion submitted the affidavits of Eakins and Post Commander Glen Hawkins, who both testified that they had not received the summons and complaint.

The American Legion also submitted the affidavit of Ken Cooper, its current registered agent. Cooper stated that he did not learn of Anderson's lawsuit against the American Legion until March 31, 2013. In particular, Cooper stated as follows:

7. [T]here are two buildings at address 601 S. Holt Rd., Indianapolis, Indiana 46241. One building is the main American Legion post where most activities occur. The second building is an old outbuilding ... which is currently[,] and in June, 2012, was being[,] utilized for storage....

* * *

9. There is no mailbox on or near the Outbuilding. There are two ground floor doors to the Outbuilding and one door that is up a flight of steps and underneath an awning. The door that is atop the flight of steps and underneath the awning is on the Outbuilding's east façade. The structure of the door, steps, and awning is such that it would be very difficult to see documents rolled up and placed in the door from the parking lot. Additionally, if documents were left outdoors on or near the Outbuilding, particularly at the top of the steps, it [sic] could very easily blow away and never be found. Because the main American Legion building is north of the Outbuilding and has ample parking leading up to it, documents left on the Outbuilding could go unnoticed for a significant period of time.

10. On March 31, 2013, I discovered a notice from the Court rolled into a cylinder and placed in the door at the top of the steps underneath the awning in the Outbuilding. This was the first document that I knew of regarding the lawsuit brought by Ms. Anderson.

Id. at 111–13.

Included in Cooper's affidavit was an aerial photograph of 601 South Holt Road. That photograph shows an L-shaped parking lot and two structures. In the northeast portion of the photograph is a large structure situated such that the L-shaped parking lot touches the structure's western and southern faces. The parking lot curves into the western face of that structure such that drivers can drive directly to a doorway, and that curved drive is partially covered. The southern portion of the parking lot has multiple paved sidewalks leading into this structure. There is also a large, fenced-in yard adjacent to the eastern side of this structure.

In the southwest corner of the lot is a smaller structure. Although it is not entirely clear from the photograph, it appears that the only parking near this structure is along its eastern face, which is the southernmost portion of the parking lot. As drivers enter onto the property, they pass along the northern face of the smaller structure to access the parking lot, which naturally leads them to the larger structure. This smaller structure bears the number “601” on its northern face. Id. at 166. It is not clear if the larger structure also bears this number, but Cooper's affidavit implies that the mailbox for the address is located at the larger structure.

On July 8, the court held a hearing on the American Legion's motion to set aside the default judgment.⁴ Following that hearing, on August 15 the court granted the American Legion's motion to set aside the default judgment under Trial Rule 60(B)(6). In granting the motion to set aside under Trial Rule 60(B)(6), the court stated, in relevant part:

In our case, a Marion County Sheriff attempted to serve Defendant by leaving a copy of the summons and complaint at the business address and mailing a copy of each to its business address. These actions do not meet the service requirements in Rule 4.1(A) and do not comport with due process. Particularly because the Defendant's property has multiple buildings and the business address used by the [S]heriff to attempt service was the address of the outbuilding at Defendant's property, Plaintiff's manner of service was not reasonably calculated to inform Defendant of the lawsuit.

For effective service, Plaintiff must have served Eakins ... in a manner outlined in Rule 4.1(A)(1), (A)(2), or (A)(4). Instead of simply leaving a copy of the summons and complaint at the doorstep of Defendant's business address, the Sheriff could have delivered each to Eakins personally. SeeRule 4.1(A)(2). Instead of mailing a copy of the summons and complaint by first-class mail, Plaintiff could have sent a copy of each by registered or certified mail or some other method that required a written acknowledgment of receipt. SeeRule 4.1(A)(1). These methods would have been reasonably calculated to inform Defendant of the pending lawsuit.

Because of the insufficient service of process, the default judgment is void and should be set aside for lack of personal jurisdiction over Defendant.

Id. at 11. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

Anderson appeals the trial court's order setting aside the default judgment pursuant to Indiana Trial Rule 60(B)(6). The parties first dispute whether our standard of review in such appeals is de novo or for an abuse of discretion. This dispute is not new to this court.⁵ As we have explained:

The standard of review for the granting or denying of a T.R. 60(B) motion is limited to whether the trial court abused its discretion. Freels v. Winston (1991), Ind.App., 579 N.E.2d 132, 135,reh. denied, trans. denied. However, a motion under T.R. Rule 60(B)(6) alleging the judgment is void requires no discretion on the part of the trial court because either the judgment is void or it is valid. Schoffstall v. Failey (1979), 180 Ind.App. 528, 389 N.E.2d 361, 363. Void judgments can be attacked, directly or collaterally, at any time. International Alliance of Theatrical Stage Employees v. Sunshine Promotions, Inc. (1990), Ind.App., 555 N.E.2d 1309, 1315.

Santiago v. Kilmer, 605 N.E.2d 237, 239 (Ind.Ct.App.1992), trans. denied; see also Farmers Mut. Ins. Co. v. M Jewell, LLC, 992 N.E.2d 751, 754 (Ind.Ct.App.2013), trans. denied; Yoder v. Colonial Nat'l Mortg., 920 N.E.2d 798, 801 (Ind.Ct.App.2010); Laflamme v. Goodwin, 911 N.E.2d 660, 664 (Ind.Ct.App.2009); LePore v. Norwest Bank Ind., N.A., 860 N.E.2d 632, 634 (Ind.Ct.App.2007); Hotmix & Bituminous Equip. Inc. v. Hardrock Equip. Corp., 719 N.E.2d 824, 826 (Ind.Ct.App.1999).

In Swiggett Lumber Construction Co. v. Quandt, 806 N.E.2d 334, 336 (Ind.Ct.App.2004), we applied an abuse of discretion standard in a Trial Rule 60(B)(6) appeal. For support, we cited to Morequity, Inc. v. Keybank, N.A., 773 N.E.2d 308, 312–13 (Ind.Ct.App.2002), trans. denied, and for support of that proposition in Morequity we cited In re Paternity of Baby Doe, 734 N.E.2d 281, 284 (Ind.Ct.App.2000). But In re Paternity of Baby Doe was an appeal under Trial Rule 60(B)(1), not Rule 60(B)(6). Moreover, we are persuaded by this court's reasoning in Santiago that a trial court has no discretion on how to rule on a Trial Rule 60(B)(6) motion once a judgment is determined to be either void or valid. If a judgment is void, the trial court cannot enforce it and the motion under Rule 60(B)(6) must be granted; if a judgment is valid, the trial court cannot declare it void and the motion must be denied. Thus, we review de novo a trial court's judgment on a Rule 60(B)(6) motion.

That said, whether a judgment is void or valid is not a determination made by pulling a label from the ether. As we have explained in...