Bonaventura v. Leach
| Decision Date | 18 September 1996 |
| Docket Number | No. 45A05-9508-CV-334,45A05-9508-CV-334 |
| Citation | 670 N.E.2d 123 |
| Parties | A.P. BONAVENTURA, M.D., and St. Anthony Radiologists, P.C, Appellants-Defendants, v. Colleen LEACH and John Leach, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
A.P. Bonaventura (Bonaventura) and St. Anthony Radiologists, Inc. (St.Anthony) appeal the trial court's denial of their Indiana Trial Rule 60(B) motions for relief from default judgment.
Colleen and John Leach (Leach) filed a complaint against Bonaventura and St. Anthony alleging medical negligence. When neither Bonaventura nor St. Anthony responded to the complaint, the trial court granted a default judgment in favor of Leach. Upon being notified of the default judgment, both Bonaventura and St. Anthony sought to have the default judgment set aside pursuant to Indiana Trial Rule 60(B). Each argued that service of process of the complaint was inadequate, entitling them to relief. The trial court denied their respective motions to set aside the default judgment.
The decision whether to set aside a default judgment is given substantial deference on appeal. Jostens Learning v. Educ. System Corp., 651 N.E.2d 1186, 1188 (Ind.Ct.App.1995), trans. denied. Appellate review of the refusal to set aside a default judgment is limited to determining whether there has been an abuse of discretion. Id. Upon a motion for relief from the default judgment, the burden is on the movant to show sufficient grounds for relief under Indiana Trial Rule 60(B). A denial of the motion is presumptively valid and the movant must demonstrate that the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
Prior to filing the medical negligence action in Lake Superior Court, Leach filed a proposed complaint with the Department of Insurance and proceeded through the medical review panel process as required by Indiana law. See Ind.Code §§ 27-12-8 to -10. The medical review panel unanimously concluded that both Bonaventura and St. Anthony failed to comply with the appropriate standard of care.
Bonaventura and St. Anthony contend that Leach was required to serve the complaint for medical negligence filed in Lake Superior Court on the attorneys who represented Bonaventura and St. Anthony before the medical review panel, arguing that the medical negligence action was merely a continuation of the medical review panel proceeding and thus the attorneys appearing therein were entitled to notice. It is asserted that failure to serve the attorneys requires relief under Indiana Trial Rule 60(B)(3).
The obligation to serve a party's attorney arises with the entry of an appearance by the attorney. Ind.Trial Rule 5(B) (); Butler Toyota, Inc. v. Metropolitan Bd. of Zoning Appeals, 504 N.E.2d 271 (Ind.1987). Here, no appearance was entered by an attorney for either Bonaventura or St. Anthony between filing of the complaint in Lake Superior Court and entry of the default judgment. Thus, if the complaint was a new action, Leach had no obligation to serve an attorney on behalf of Bonaventura or St. Anthony. 1
The authority provided in support of the contention that the action in Lake Superior Court is a mere continuation of the proceedings before the medical review panel is not persuasive. Both parties rely on Butler Toyota, 504 N.E.2d 271. In Butler Toyota, the Board of Zoning Appeals re-docketed a variance request and a petition for certiorari to the circuit court was filed challenging the redocketing. Id. at 271. Our supreme court held that the petition for certiorari was a continuation of the zoning proceeding and thus service upon the attorney of record was proper. Id. at 272. This result rested on the statutory language addressing the certiorari proceeding, which the supreme court interpreted as "clearly contemplat(ing) judicial review of a previous or continuing proceeding and not an original action." Id. The petition for certiorari in Butler Toyota was in the nature of a review or appeal. The action filed in Lake Superior Court is not a review or appeal of the medical review panel opinion. Neither the trial court nor a jury could alter or invalidate the opinion issued by the medical review panel. Thus, Butler Toyota is not analogous to the present situation.
St. Anthony also cites to the statutory provision making submission to a medical review panel a condition precedent to most court actions for medical malpractice (I.C. § 27-12-8-4), the provision providing that the opinion of the medical review panel shall be admissible in a subsequent court action (I.C. § 27-12-10-23), and case law holding that a medical review panel opinion will sustain a motion for summary judgment absent any contrary expert testimony. See Oelling v. Rao, 593 N.E.2d 189 (Ind.1992); Whyde v. Czarkowski, 659 N.E.2d 625 (Ind.Ct.App.1995), trans. denied (1996). St. Anthony asserts that given the statutory interrelation of the two proceedings and the case law connecting them, a court action filed after the medical review panel process is clearly merely a continuation of that process. While the two proceedings are related, interrelation does not necessarily equate to sameness. Under the statutory scheme, initiation of a legal proceeding for medical negligence is a separate action from the medical review panel process. Thus, for purposes of service of process, the attorneys who appeared before the medical review panel are not entitled to notice upon the commencement of a civil suit for medical negligence.
Bonaventura also contends that under McGee v. Reynolds, 618 N.E.2d 40 (Ind.Ct.App.1993), Leach's failure to serve the attorney who represented Bonaventura before the medical review panel required the trial court to grant the motion to set aside. In McGee, a personal injury case, attorney for plaintiff had considerable negotiations with defendant's insurer. Upon filing suit, plaintiff did not give notice to the insurer nor did defendant receive actual notice of the suit. After suit had been filed, plaintiff's attorney did not respond to a direct inquiry by defendant's insurer as to the status of the claim. In upholding the trial court's grant of a Trial Rule 60(B)(3) motion to set aside default judgment, this court noted that the decision of plaintiff's attorney not to answer the direct inquiry showed a lack of good faith and "smack[ed] of chicanery and unfair advantage." Id. at 41. The opinion also noted that failure to give notice to an insurer of the existence of a lawsuit after negotiations had occurred was a valid consideration in determining whether to set aside a default judgment, but that such failure, standing alone, was insufficient to set aside a default judgment. Id. at 41 (citing Boles v. Weidner, 449 N.E.2d 288, 290 (Ind.1983)).
McGee is not persuasive authority because there was no direct inquiry by Bonaventura's or St. Anthony's attorneys and no misrepresentation by Leach's attorney as to the status of the case. In fact, the last communication from Leach's attorney indicated that filing of the complaint was imminent. Further, the only omission alleged is the failure to serve counsel. As noted in McGee, while this is a consideration in setting aside a default judgment, it is insufficient standing alone.
While it would have been courteous to serve the attorneys who represented Bonaventura and St. Anthony before the medical review panel, there is no authority requiring Leach to do so.
Bonaventura claimed that he never received the complaint. The complaint was mailed, via certified mail, to Bonaventura at 1500 South Lake Park Avenue, Hobart, Indiana, 46342. This is the address listed by Bonaventura in the telephone directory and is in fact a correct address, with the exception that it does not include his office suite number.
The certified mail receipt is signed by Rich Campbell. Campbell is an employee of St. Mary's Medical Center. Evidence showed that all mail for St. Mary's Medical Center and the adjacent professional building, where Bonaventura has his office, is picked up and signed for by an employee of St. Mary's Medical Center. It is then sorted by volunteers of the hospital and delivered to the appropriate location.
Service of process must be reasonably calculated to inform the defendant of the pending lawsuit in accordance with due process. Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind.App. 144, 152, 338 N.E.2d 670, 675 (1975). When service of process is inadequate, the court does not have personal jurisdiction over the party and a default judgment issued without personal jurisdiction is void. Shotwell v. Cliff Hagan Ribeye Franchise, 572 N.E.2d 487, 489 (Ind.1991).
Indiana Trial Rule 4.1 provides that service of process may be made upon an individual by sending a copy of the summons and complaint by certified mail to his place of business with return receipt requested and a return showing receipt of the letter. Bonaventura asserts two problems with the service of process in this case. First, he asserts that the certified mail was not sent to his specific place of business because the suite number was not included in the address. Second, he asserts that the certified mail was not received and acknowledged by him because he did not sign the receipt. For both these reasons, Bonaventura contends that the judgment is void and must be set aside pursuant to Indiana Trial Rule 60(B)(6).
Concerning the absence of a suite number in the address, Bonaventura has not explained how...
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