Glennar Mercury-Lincoln, Inc. v. Riley

• Decision Date: 04 December 1975
• Docket Number: INC,MERCURY-LINCOL,No. 2--574A105,2--574A105
• Parties: GLENNAR, Appellant (Defendant below), Ford Motor Co., (Co-Defendant below), v. Betty Joanna RILEY, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 670

338 N.E.2d 670

167 Ind.App. 144

GLENNAR MERCURY-LINCOLN, INC., Appellant (Defendant below), Ford Motor Co., (Co-Defendant below), v. Betty Joanna RILEY, Appellee (Plaintiff below).

No. 2--574A105.

Court of Appeals of Indiana, Second District.

Dec. 4, 1975.

Rehearing Denied Jan. 6, 1976.

Louis Pearlman, Jr., Lafayette, for appellant.

Heide, Gambs & Mucker, Lafayette, for appellee.

SULLIVAN, Presiding Judge.

Defendant Glennar Mercury-Lincoln, Inc. (Glennar) appeals from the trial court's refusal to relieve Glennar (under Ind. Rules of Procedure, Trial Rule 60) from the court's previous order of default in plaintiff Betty Joanna Riley's action for personal injuries against Glennar and co-defendant, Ford Motor Co. Ford Motor Co. is not a party to this appeal.

We affirm.

Glennar attacks the trial court's refusal to set aside the default order on three grounds:

1. The trial court lacked jurisdiction to rule on Glennar's TR 60 motion because of a pending motion for change of venue filed by co-defendant Ford after the default, but before the judgment thereon.

2. No service of process was had upon Glennar so that the court did not have jurisdiction over Glennar's person, and therefore the default order is 'void' under TR. 60(B)(6).

3. Even if service of process was sufficient for in personam jurisdiction, Glennar lacked actual knowledge of the suit through no fault of its own, and therefore relief should be granted for 'mistake, surprise or excusable neglect' under TR. 60(B)(1).

Plaintiff Riley was injured on April 29, 1971, when the Ford-produced car which she was driving crashed, allegedly as a result of brake failure. Riley had leased the car from Glennar and sought to impose liability on both it and Ford on theories of negligence and breach of implied warranty. The complaint was filed in the Tippecanoe Circuit Court on August 7, 1972.

Riley sought service upon Glennar by certified mail on August 7, 1972, pursuant to TR. 4.6(A)(1) (service upon domestic corporation permissible by service upon its resident agent), TR. 4.6(B) (service upon such agent in the manner of service upon individuals), TR. 4.1(A)(1) (service upon individuals by certified mail), and TR. 4.11 (mechanics of service by certified mail). A summons and a copy of the complaint were delivered to 20 South 6th Street, Lafayette, Indiana, which, according to its 1971 annual report (the most recent report on file with the Secretary of State at the time of the action) was Glennar's principal place of business. Both the caption of the summons and the entire complaint listed Glennar Mercury-Lincoln, Inc. as Ford's co-defendant, but the summons was addressed to 'Glenn R. Pitman, Inc., 20 South 6th Street, Lafayette, Indiana.'

The record reveals that Glenn R. Pitman, Inc. is a legally separate corporate entity from Glennar Mercury-Lincoln, Inc. Glenn R. Pitman, Inc.'s corporate records designate 5th and South Streets, Lafayette, Indiana, as that corporation's place of business. However, Glenn R. Pitman, Inc., like Glennar, maintains an office at 20 South 6th Street. Both corporations have the same resident agent, Glenn R. Pitman, whose office is at 20 South 6th Street, and both corporations are served by the same office staff, that staff being supervised on behalf of both corporations by Charles Galema.

Charles Galema's signature appears on the return receipt for the letter containing the summons and complaint. Galema, though technically an employee of Glenn R. Pitman, Inc., is authorized by Mr. Pitman to receive and sign for all certified mail addressed to either corporation. The receipt was signed by Galema as agent for Glenn R. Pitman, Inc., the envelope containing the documents being addressed to that corporation. The trial court found as a fact that normal office procedures were followed and the letter was delivered by Galema to the desk of Glenn R. Pitman, just as a letter addressed to Glennar Mercury-Lincoln, Inc. or to Glenn R. Pitman would have been.

Pitman denied ever seeing the summons or the complaint, and stated at the hearing on Glennar's TR. 60 motion that he did not learn of Riley's suit until after judgment was entered upon the default on June 27, 1973. The trial court, however, found as a fact, based on testimony from plaintiff's counsel and Pitman himself concerning a telephone conversation between the two prior to the September 6, 1972 default, that Pitman did have actual knowledge of Riley's suit prior to the default. The trial court found that Pitman's knowledge stemmed from his having received and read the summons and complaint.

Co-defendant Ford was served on August 7, 1972 by certified mail. After the trial court defaulted Glennar for failing to appear on September 6, and after evidence of damages upon Glennar's default was heard on September 27, Ford, on October 5, 1972, filed its answer, a request for a jury trial and a motion for change of venue. No definitive action was taken on Ford's motion for change of venue, and the trial court heard additional evidence on March 29, 1973 as to the amount of damages due Riley from Glennar.

The trial court entered judgment for $108,000 (Riley had claimed $250,000) against Glennar on June 27, 1973. A newspaper account of the judgment appeared on July 2, 1973. Glennar's president, Henry Holer, testified that the newspaper article first gave him knowledge of Riley's action. Riley did not contradict Holer's testimony. On July 6, 1973, Glennar filed its TR. 60 motion, which attacked both the default order and the judgment--the order on grounds of insufficiency of service of process and the judgment on grounds of both insufficient process and lack of jurisdiction to enter judgment because of Ford's pending motion for change of venue. ¹

After hearing evidence and considering the arguments and briefs of counsel, the trial court issued a written opinion on November 28, 1973, granting partial relief on Glennar's TR. 60 motion. The court agreed with Glennar that it lacked subject jurisdiction to enter judgment on June 27, 1973, because of Ford's pending motion for change of venue. See Michigan Mutual Liability Co. v. Perez (1965), 137 Ind.App. 247, 207 N.E.2d 368. However, the court found that service of process upon Glennar in the manner described above was sufficient for the court to acquire jurisdiction pursuant to TR. 4.15(F), and that therefore the default order was not 'void' under TR. 60(B)(6). The court further found that Glenn R. Pitman's actual knowledge of the action vitated any claim of 'excusable neglect' countenanced by TR. 60(B)(1). In this appeal, Glennar disputes these last two findings, besides asserting the court's lack of jurisdiction to rule at all on the TR. 60 motion. ²

ASSERTION OF LACK OF JURISDICTION TO CONSIDER TO. 60 MOTION

WAIVED BY GLENNAR

Glennar argues that, if Ford's pending motion for change of venue divested the trial court of jurisdiction to enter judgment against Glennar on June 27, 1973 under the rule of Michigan Mutual Liability Co. v. Perez, supra, 137 Ind.App. 247, 207 N.E.2d 368, the pendency of that motion necessarily deprived the court of jurisdiction to consider and rule on Glennar's TR. 60 motion on November 28, 1973. We hold that such argument is not cognizable.

In Michigan Mutual, supra, the general rule was recognized 'that when a proper motion for change of venue from the county is filed the court in which it was filed loses jurisdiction in the case.' Indianapolis Dairyman's Co-Op v. Bottema (1948), 226 Ind. 260, 265, 79 N.E.2d 409, 411. An exception exists to this general rule, however, 'where the moving party to a motion for change of venue, without first perfecting the change of venue, voluntarily submits the cause to the court which acts through its regular judge.' State ex rel. City of Indianapolis v. Superior Court of Marion County (1955), 235 Ind. 151, 158, 128 N.E.2d 874, 877 (emphasis supplied); see also Moore v. American National Bank at Indianapolis (1944), 114 Ind.App. 551, 52 N.E.2d 513.

We hold that this exception to the geneal rule obtains when a co-defendant of the party who had filed a change of venue motion, voluntarily submits to the court. Having voluntarily filed its TR. 60 motion in the same court and before the same judge before whom Ford's TR. 76 motion was pending, Glennar cannot now be heard to complain that the court lacked jurisdiction to consider and rule

upon that TR. 60 motion. SERVICE OF PROCESS UPON GLENNAR

SUFFICIENT TO OBTAIN JURISDICTION; THEREFORE,

DEFAULT ORDER NOT VOID

Glennar correctly asserts that an order of default against a party over whom the court has no jurisdiction is 'void' within the meaning of TR. 60(B)(6). See Clark v. Hillis (1893), 134 Ind. 421, 34 N.E. 13; Dobbins v. McNamara (1887), 113 Ind. 54, 14 N.E. 887; Krick v. Farmers & Merchants Bank of Boswell (1972), 151 Ind.App. 7, 279 N.E.2d 254; Roth v. Bonar (1951), 122 Ind.App. 174, 101 N.E.2d 828; Civil Code Study Commission Comments to TR. 60, in 4 Harvey & Townsend, iIndiana Practice Rules of Procedure Annot. 200--201 (1971); 4 Harvey & Townsend, supra, at 215. It is also true that a 'court acquires jurisdiction over a party or person who under these rules . . . is served with summons . . ..' TR. 4(A). Hence were, as here, jurisdiction over the defendant is sought by service of summons, whether the judgment is 'void' turns on whether the defendant was served with process effective for that purpose under the Ind. Rules of Procedure.

The trial court found that the service of process attempted upon Glennar was sufficient for the court to obtain jurisdiction over Glennar's person pursuant to TR. 4.15(F), which reads:

'(F) Defects in summons. No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.'

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