Munster v. Groce

• Court: Indiana Supreme Court
• Writing for the Court: Barnes
• Citation: Munster v. Groce, 829 N.E.2d 52 (Ind. 2005)
• Decision Date: 08 June 2005
• Docket Number: No. 18A02-0409-CV-738.,18A02-0409-CV-738.
• Parties: David MUNSTER, Appellant-Plaintiff, v. Joe GROCE and Business World, Inc., Appellees-Defendants.

829 N.E.2d 52

David MUNSTER, Appellant-Plaintiff, v. Joe GROCE and Business World, Inc., Appellees-Defendants.

No. 18A02-0409-CV-738.

Court of Appeals of Indiana.

June 8, 2005.

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Thomas D. Blackburn, Blackburn & Green, Fort Wayne, Karl L. Mulvaney, Nana Quay-Smith, Candace L. Sage, Bingham

McHale, LLP, Indianapolis, for Appellant.

Michael D. Conner, Spitzer Herriman Stephenson, Holderead Musser & Conner, LLP, Marion, for Appellees.

OPINION

BARNES, J.

Case Summary

David Munster appeals the dismissal of his complaint against Joe Groce and Business World, Inc. ("BWI"). We affirm in part, reverse in part, and remand.

Issues

The restated issues before us are:

I. whether Munster properly effected service of process on Groce; and

II. whether Munster properly effected service of process on BWI.

Facts

On February 25, 2000, Munster and Groce were involved in an automobile accident. At the time, Groce was an employee of BWI, a corporation that later was dissolved in July 2001. On February 15, 2002, Munster filed a complaint against Groce and BWI. Munster attempted to serve both Groce and BWI by certified mail. Both mailings were returned undelivered on March 1, 2002; the mailing to Groce was marked "attempted not known" and the mailing to BWI was marked with a new address. App. p. 2.

No further action was taken in the case until December 2003, when Munster obtained new counsel. Second attempts to serve BWI and Groce by certified mail were again returned undelivered, with the marking on each "forwarding order expired." Id. Munster then attempted to serve BWI and Groce through the Indiana Secretary of State, as provided by Indiana Trial Rule 4.10. Munster did not file a praecipe for summons with the trial court, but instead delivered copies of the summons and complaint directly to the Secretary of State. Munster provided the Secretary of State with addresses for BWI and Groce, the Secretary of State mailed copies of the summons and complaint to those addresses, and they were returned undelivered as before.

At least by December 2003, BWI's former insurer learned of Munster's lawsuit and filed an answer on behalf of BWI and Groce, which among other things asserted the affirmative defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. On January 22, 2004, counsel also filed a motion to dismiss on behalf of BWI and Groce under Indiana Trial Rules 12(B)(2), (4), and (5), alleging a lack of personal jurisdiction due to insufficiency of process and service of process. The motion also sought dismissal due to failure to prosecute pursuant to Indiana Trial Rule 41(E).

On January 26, 2004, Steve Harris, an investigator hired by Munster's counsel, delivered a copy of the summons and complaint to the residence of George Mikesell, who was listed as a director of BWI in its articles of incorporation. Mikesell was not home at the time, but his wife Lois personally received the summons and complaint. Harris phoned Mikesell the next day and confirmed that he received the summons and complaint. Also on January 26 and January 31, 2004, Harris attempted personal delivery of the summons and complaint at Groce's alleged former places of residence and employment, but could not locate him.

On May 17, 2004, the trial court dismissed Munster's complaint pursuant to Trial Rules 12(B)(2), (4), and (5); it did not dismiss under Trial Rule 41(E). It stated in its order that Munster had not complied with Trial Rule 4.10 allowing for service through the Secretary of State because he had not filed a praecipe for summons with the trial court first. As for the January 26, 2004 delivery of the summons and complaint to Lois Mikesell, the trial court struck the acknowledgment of service she had signed and concluded that she had no actual or apparent authority to accept service on BWI's behalf.

On June 14, 2004, Munster filed a motion to correct error. On the same date, Munster also filed, with the trial court this time, a praecipe for summons for service upon BWI and Groce through the Secretary of State. Using the same addresses as before, the Secretary of State again sent certified mail addressed to BWI and Groce, and the mailings again were returned undelivered. On August 24, 2004, the trial court denied the motion to correct error. Munster now appeals.

Analysis

I. Standard of Review

Technically, Munster is appealing from the denial of a motion to correct error. We generally review a trial court's denial of a motion to correct error for an abuse of discretion. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind.Ct.App.2004). Except for pointing out Munster's re-attempt to effect service through the Secretary of State, however, the motion to correct error in this case merely asked the trial court to reconsider its earlier ruling on the motion to dismiss.

BWI and Groce have not claimed that they lacked insufficient contacts with Indiana for the trial court to exercise jurisdiction over them and base their arguments solely on insufficient service of process. Indiana Trial Rule 12(B)(5) allows for dismissal of a complaint if there is insufficient service of process; Trial Rule 12(B)(2) similarly allows for a dismissal of a complaint if there is a lack of personal jurisdiction. A trial court does not acquire personal jurisdiction over a party if service of process is inadequate. King v. United Leasing, Inc., 765 N.E.2d 1287, 1290 (Ind.Ct.App.2002).

When a defendant argues a lack of personal jurisdiction, the plaintiff must present evidence to show that there is personal jurisdiction over the defendant. Anthem Ins. Companies, Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind.2000). The defendant ultimately bears the burden of proving the lack of personal jurisdiction by a preponderance of the evidence, unless the lack of jurisdiction is apparent on the face of the complaint. Id. The existence of personal jurisdiction over a defendant is a question of law and a constitutional requirement to rendering a valid judgment, mandated by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. at 1237. Thus, we review a trial court's determination regarding personal jurisdiction de novo. Id. at 1238. To the extent a trial court may make findings of jurisdictional facts, these findings are reviewed for clear error if they were based on in-court testimony. Id. at 1238. If, however, 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. Id. at n. 12.

Here, the trial court ruled on the motion to dismiss based entirely on a paper record, consisting of records of Munster's attempts at service and affidavits of Harris and Lois Mikesell. No testimony was presented at the hearings conducted on the motion to dismiss and motion to correct error. Thus, our review of the trial court's personal jurisdiction ruling is entirely de novo. Additionally, we note that although the trial court in dismissing Munster's complaint provided an explanation as to why it was doing so, we will affirm a trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. See Minks v. Pina, 709 N.E.2d 379, 381 (Ind.Ct.App.1999), trans. denied.

II. Service as to Groce

Groce argues that Munster's attempts to serve him with process were insufficient to permit the trial court to exercise jurisdiction over him.¹ This question has two aspects: whether there was compliance with the Indiana Trial Rules regarding service, and whether such attempts at service comported with the Due Process Clause of the Fourteenth Amendment. We conclude that due process required more than was attempted here with respect to service on Groce.

In the seminal case regarding due process and notice, the Supreme Court held that the Due Process Clause requires at a minimum "that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). "This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Id. at 314, 70 S.Ct. at 657. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. "[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Id. at 315, 70 S.Ct. at 657. The Court held that alternatives to personal service and actual notice of a suit, such as publication, are permissible

where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.... [Parties] whose interests or whereabouts could not with due diligence be ascertained come clearly within this category.

Id. at 317, 70 S.Ct. at 658-59 (emphasis added). Mullane thus clearly indicates that although it is acceptable in some instances to proceed with a lawsuit by using a service method that it is unlikely to give actual notice to an interested party, this is only the case if that party's whereabouts cannot reasonably and in the exercise of...