Jordache White and American Transport, LLC, and Canal Insurance Company v. George Reimer , 61 N.E.3d 301 ( 2016 )

FILED
Sep 08 2016, 8:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Andrew S. Williams Daniel H. Pfeifer
Hunt Suedhoff Kalamaros, LLP Jerome W. McKeever
Fort Wayne, Indiana Pfeifer, Morgan & Stesiak
South Bend, Indiana
Deborah A. Kapitan
Kopka Pinkus Dolin, PC
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jordache White and American September 8, 2016
Transport, LLC, Court of Appeals Case No.
71A03-1602-CT-270
and Appeal from the St. Joseph
Superior Court
Canal Insurance Company, The Honorable David C.
Appellants-Defendants, Chapleau, Judge
Trial Court Cause No.
v. 71D06-1109-CT-191
George Reimer,
Appellee-Plaintiff.
Najam, Judge.
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Statement of the Case
[1] Jordache White, American Transport LLC (“American Transport”), and Canal
Insurance Company (“Canal”) (collectively, “the Appellants”) appeal the trial
court’s decision to deny their joint motion to set aside default judgment. The
Appellants raise the following issues for our review:
1. Whether the trial court lacked jurisdiction over White due
to allegedly insufficient service of process.
2. Whether the trial court lacked jurisdiction over American
Transport due to allegedly insufficient service of process.
[2] We affirm.
Facts and Procedural History1
[3] On January 31, 2010, George Reimer and Jordache White were involved in a
motor vehicle collision in Wayne County, Indiana. At the time, White was
operating a semi-tractor within the scope of his employment for American
Transport. As a result of the collision, Reimer sustained six fractured ribs, a
fractured sternum, and torn ligaments in his left knee. He incurred $93,574.67
in medical bills and $20,800 in lost wages. Accordingly, on September 8, 2011,
Reimer filed a complaint against White and American Transport for $750,000
in damages. White is not an Indiana resident and American Transport is not an
Indiana company.
1
We held oral argument on July 27, 2016.
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[4] On September 16, Reimer, through his counsel, attempted to serve White at a
residential address, in Thebes, Illinois, that White had provided to Indiana law
enforcement following the January 31 collision. According to three entries in
the trial court’s chronological case summary (“CCS”): “Defendant Jordache
White was served by confirmed delivery [at that address on] 09/16/11.
Defendant Jordache White was not served by confirmed delivery refused. Not
deliverable as addressed. Defendant Jordache White was served by confirmed
delivery 09/16/11.” Appellants’ App. at 7. Due to that obvious confusion in
the CCS, on September 23 the clerk of the court called Reimer and confirmed
that the court file contained a signed return receipt for White at his Thebes,
Illinois, address, although that receipt had been signed by a third party, Rhonda
Powell. Following the clerk’s information, on November 21 Reimer filed a
praecipe for summons for White to be served through the Indiana Secretary of
State by certified mail at the same residential address in Illinois.
[5] On December 5, Reimer attempted service on American Transport at Route 1,
Box 1877, Patton, Missouri, the address provided by White to Indiana law
enforcement following the collision. Reimer’s attempted service on American
Transport was returned undeliverable as addressed. On January 20, 2012, he
filed a praecipe for summons on American Transport to be served through the
Secretary of State by certified mail at that same address. On February 22, the
Secretary of State issued an affidavit that stated that the summons on American
Transport was returned undeliverable as addressed. On February 24, Reimer’s
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summons on White was also returned by the Secretary of State as undeliverable
as addressed.
[6] Reimer filed a motion for default judgment on September 5. Thereafter, the
trial court entered judgment against White and American Transport for
$750,000. Reimer filed a verified motion in proceedings supplemental against
White and American Transport on March 5, 2013, which was also returned as
undeliverable. Reimer then learned that White had recently moved to an
address in Cairo, Illinois.
[7] Reimer served the proceedings supplemental on White at White’s Cairo
address, and White called Reimer soon thereafter. Reimer asked White if
White knew American Transport’s whereabouts. White stated that American
Transport operated out of Pittsburgh, Pennsylvania. However, when Reimer
attempted to serve the proceedings supplemental at an address for an American
Transport business in Pittsburgh, a representative of that business responded
and informed Reimer that he had the wrong American Transport business. The
representative provided an address for another American Transport business
located in Farmington, Missouri. But when Reimer attempted to serve the
proceedings supplemental at that address, that mailing was returned as
undeliverable.
[8] On November 26, Reimer hired two private investigators to find American
Transport. Neither located American Transport, but one did locate American
Transport’s apparent insurance carrier, Canal. Accordingly, on February 3,
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2015, Reimer served the proceedings supplemental on Canal as a garnishee-
defendant. On August 24, White and Canal filed a joint motion to set aside
default judgment under Indiana Trial Rule 60(B)(6), which the trial court
denied. This appeal ensued.
Discussion
Overview
[9] The Appellants contend that the trial court lacked jurisdiction to enter default
judgment against White and American Transport due to insufficient service of
process. Therefore, they argue that the judgment is void under Indiana Trial
Rule 60(B)(6). Trial Rule 60(B)(6) provides that a court may relieve a party
from a default judgment when the judgment is void. “In Indiana, ‘whether the
judgment is void turns on whether the defendant was served with process
effective for that purpose under the Ind[iana] Rules of Procedure.’” Anderson v.
Wayne Post 64, 4 N.E.3d 1200, 1206 (Ind. Ct. App. 2014) (quoting Glennar
Mercury-Lincoln, Inc. v. Riley, 167 Ind. App. 144, 150, 338 N.E.2d 670, 675
(1975)), trans. denied.
[10] Our standard of review in such appeals is as follows:
Personal jurisdiction is a question of law. Therefore, our review
is de novo, and we do not defer to the trial court’s legal
conclusion as to whether personal jurisdiction exists. However,
to the extent that personal jurisdiction turns on disputed facts, the
trial court’s findings of fact are reviewed for clear error.
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Id. (quoting Seibring v. Air Equip & Eng’g Inc., 988 N.E.2d 272, 274 (Ind. Ct. App
2013)). Further:
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 60(B)(6) must be granted; if a judgment is
valid, the trial court cannot declare it void and the motion must
be denied.
Id. at 1205.
[11] Notice of a lawsuit is a requirement of due process:
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. . . . But when notice is a person’s due,
process which is a mere gesture is not due process.
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950)
(emphasis added; citations omitted). As we have recognized:
A trial court does not acquire personal jurisdiction over a party if
service of process is inadequate. The existence of personal
jurisdiction . . . is . . . a constitutional requirement to rendering a
valid judgment, mandated by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. 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. . . . Our review
requires scrutiny of the method of authorized service chosen in
order to determine whether under the facts and circumstances of
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the particular case that method was best calculated to inform the
defendant of the pending proceeding. An authorized method is
sufficient if no other method better calculated to give notice is
available but is insufficient if another method obviously better
calculated to give notice is available.
Anderson, 4 N.E.3d 1206-07 (citations and quotations omitted).
[12] It is undisputed that the Appellants were nonresidents of Indiana at the time of
the motor vehicle collision. Generally, a person may be served by sending a
copy of the summons by registered or certified mail, delivering a copy of the
summons personally, leaving a copy of the summons at his dwelling house or
usual place of abode, or serving his agent. Ind. Trial Rule 4.1. And, with
respect to nonresidents, Trial Rule 4.4(A)(2) provides:
Any person or organization that is a nonresident of this
State . . . submits to the jurisdiction of the courts of this state as
to any action arising from the following acts committed by him
or her or his or her agent: [c]ausing personal injury or property
damage by an act or omission done within this state.
[13] Trial Rule 4.4(B)(2) provides that a nonresident who is subject to our
jurisdiction “shall be deemed to have appointed the Secretary of State as his
agent upon whom service of summons may be made as provided in Rule 4.10.”
And, under Trial Rule 4.10(A),2 litigants must file a praecipe for a summons;
state the address, last known address, or that the address is unknown, of the
2
There is no subdivision (B) to Trial Rule 4.10.
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person being served; and pay any fees along with providing copies of a
summons, affidavit, and complaint to the clerk of the court in order to
accomplish service through the Secretary of State. The Secretary of State is
then to serve a copy of the summons and complaint; complete an affidavit
showing the date of the mailing; send the clerk a copy of the return receipt with
a copy of the summons; and retain a copy of the return receipt. T.R. 4.10(A).3
[14] Finally, Trial Rule 4.15(F) provides that “[n]o 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.” However, Trial Rule 4.15(F) “only cures technical defects in the
service of process, not the total failure to serve process.” Anderson, 4 N.E.3d at
1210 (quoting LaPalme v. Romero, 621 N.E.2d 1102, 1106 (Ind. 1993)).
[15] Indiana Code Section 34-33-3-1 is consistent with our Trial Rules regarding
service of process but goes further, affirmatively appointing the Secretary of
State as a nonresident motor vehicle operator’s attorney for service of process as
a matter of law. In particular, that statute states in relevant part:
(b) The operation of a motor vehicle [in Indiana] by a
[nonresident or its agent] is considered to be an appointment by
3
In its order denying the Appellants’ motion to set aside the default judgment, the trial court relied on
Professor Harvey’s assessment that, when a nonresident defendant does not receive actual service, due
process is satisfied when service is made upon the Indiana Secretary of State pursuant to Trial Rule 4.10. See
1 William F. Harvey, Ind. Prac. § 4.10 at 367-70 (3rd ed. 1999).
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the person of the secretary of state to be the person’s attorney
upon whom process may be served in any action or proceeding
against the person arising from an accident or collision in which
the person may be involved while operating or permitting to be
operated a motor vehicle on a street or highway or any other
place in Indiana.
(c) The operation is an agreement that process against the person
has the same legal force and validity as if served upon the person
personally.
Ind. Code § 34-33-3-1 (2010).
[16] With that legal framework in mind, the Appellants argue on appeal that Reimer
failed to provide adequate service to either White or American Transport. We
address the Appellants’ arguments with respect to White and American
Transport separately.
Issue One: Service On White
[17] The Appellants first assert that Reimer’s service on White was insufficient.
Specifically, the Appellants contend that the CCS entries were inconsistent and,
as such, could not demonstrate that sufficient service on White had occurred. 4
Further, the Appellants contend that White was never served even though
Reimer received a return receipt, signed by a third party, from the address that
4
Although the CCS entries were inconsistent, at oral argument counsel for the Appellants acknowledged
that the CCS entries read “refused to sign” as opposed to “not at this address” or “unclaimed.” Only the
latter two notations would have suggested that the person upon whom service had been attempted did not
live at the residence served. T.R. 4.16(A)(2) (“A person who has refused to accept the offer or tender of the
papers being served thereafter may not challenge the service of those papers.”).
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White provided on the police report. Finally, because the Appellants contend
that White was not served at that address, they further contend that service on
White through the Secretary of State was not reasonably calculated to reach
him there.
[18] We reject the Appellants’ arguments. As a matter of law, White had sufficient
notice of Reimer’s lawsuit. “Service delivered by United States mail, postage
prepaid, as certified mail with a return receipt satisfies the method requirement
of due process. . . . [A]ctual delivery to the party is not jurisdictionally
necessary.” Buck v. P.J.T., 182 Ind. App. 71, 73, 394 N.E.2d 935, 937 (1979),
trans. denied. There is no question that Reimer satisfied that burden here when
he served White at the Thebes, Illinois, address, which White had provided to
Indiana’s law enforcement following the collision, and that service was received
and signed for by a party at that address, albeit someone other than White.
And the Appellants do not suggest on appeal that “another method obviously
better calculated to give notice [wa]s available” to Reimer.5 Anderson, 4 N.E.3d
at 1206-07. Indeed, the fact that, in an abundance of caution, Reimer took the
additional step of serving White through the Secretary of State is irrelevant. We
hold that White had sufficient notice of the lawsuit and, as such, we affirm the
trial court’s denial of the Appellants’ motion to set aside the default judgment
with respect to White.
5
At oral argument, counsel for the Appellants suggested that Reimer could have utilized an online search
engine or online social media to ascertain White’s location. But there was no evidence presented at trial that
such efforts, even if minimal, would have revealed or otherwise indicated White’s location. Accordingly, we
do not consider this argument in this appeal.
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Issue Two: Service On American Transport
[19] The Appellants next contend that Reimer’s service on American Transport
through the Secretary of State was insufficient. Specifically, the Appellants
assert that, because Reimer did not exercise due diligence to ascertain American
Transport’s whereabouts before attempting service through the Secretary of
State, that service did not comport with the demands of due process. We
cannot agree.
[20] In support of their argument, the Appellants rely on Munster v. Groce, 829
N.E.2d 52 (Ind. Ct. App. 2005). In Munster, all the parties were Indiana
residents. The plaintiff, Munster, twice attempted to serve the defendant,
Groce, at addresses that resulted in a return of service. When those attempts
failed, rather than attempt service by publication Munster instead attempted to
serve Groce through the Secretary of State at those same addresses. We held
that Munster’s attempt at constructive service through the Secretary of State
failed to satisfy the requirements of due process. Id. at 61. In particular, we
stated:
in order for such service [on the Secretary of State pursuant to
Trial Rule 4.10] 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 the Secretary of State was
reasonable under the circumstances.
Id. at 60-61.
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[21] Appellants’ reliance on Munster is misplaced. In Munster, the defendant was a
person and a resident of Indiana. Yet, when attempts at actual service on the
defendant failed, the plaintiff eschewed “[t]he textbook example of constructive
service and notice . . . by publication.” Id. at 58. Instead, the plaintiff sought
constructive service through the Secretary of State. We were openly critical of
the plaintiff’s apparent decision to “sidestep the due diligence requirements of
notice by publication and simply ask for service through the Secretary of State.”
Id. at 61. In other words, in Munster there appeared to be “another method
obviously better calculated to give notice” available to the plaintiff than the
method of service actually chosen by the plaintiff. See Anderson, 4 N.E.3d at
1206-07.
[22] That is not the case here, however, where it is undisputed that the defendant,
American Transport, is a nonresident company. As a nonresident that
authorized its agent, White, to operate its motor vehicle in Indiana, as a matter
of law the Secretary of State was American Transport’s “attorney upon whom
process may be served in any action . . . arising from an accident or collision” in
Indiana. I.C. § 34-33-3-1(b). Further, when American Transport operated its
vehicle in Indiana, it agreed “that process against [the Secretary of State] has
the same legal force and validity as if served upon [American Transport]
personally.” I.C. § 34-33-3-1(c).
[23] In other words, unlike in Munster, here the Secretary of State was, as a matter of
law, American Transport’s attorney for purposes of service of process, and
service on the Secretary of State was service on American Transport. I.C. § 34-
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33-3-1(b), (c). Thus, Reimer’s reliance on Trial Rules 4.4(B) and 4.10(A) was
reasonable under the circumstances when he served American Transport’s
attorney pursuant to Indiana Code Section 34-33-3-1, using the business address
provided by American Transport’s employee to Indiana law enforcement
officers who were investigating the collision. And, unlike in Munster, here there
was not “another method obviously better calculated to give notice” to
American Transport than the method actually employed by Reimer.6 See
Anderson, 4 N.E.3d at 1206-07.
Conclusion
[24] In sum, we agree with the trial court that, under the facts and circumstances of
this case, Reimer’s service on White at his Thebes, Illinois, address and service
on American Transport through the Secretary of State was reasonably
calculated to inform the Appellants that an action had been instituted against
them, was effective under the Indiana Trial Rules, and was consistent with due
process. Accordingly, we affirm the trial court’s order denying the Appellants’
joint motion to set aside the default judgment.
[25] Affirmed.
Robb, J., and Crone, J., concur.
6
Indeed, while it is not disputed that American Transport is not an Indiana company, its precise
whereabouts are wholly unknown, which would make notice by publication, discussed in Munster, impossible
to achieve with respect to American Transport.
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