Meleeka Clary-Ghosh, MCM Fashions, LLC, TCD Productions, LLC, Andrew L. Clary, Jr., and Luke L. Tooley, Jr. v. Michael Ghosh (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 15 2020, 8:25 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE APPELLEE PRO SE
Luke L. Tooley, Jr. Michael Ghosh
Billerica, Massachusetts Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Meleeka Clary-Ghosh, MCM May 15, 2020
Fashions, LLC, TCD Court of Appeals Case No.
Productions, LLC, Andrew L. 19A-PL-1541
Clary, Jr., and Luke L. Tooley, Appeal from the
Jr.,1 Hamilton Superior Court
Appellants-Defendants, The Honorable
Jonathan M. Brown, Judge
v. Trial Court Cause No.
29D02-1707-PL-6437
Michael Ghosh,
Appellee-Plaintiff.
1
Meleeka Clary-Ghosh (“Clary-Ghosh”), MCM Fashions, LLC (“MCM”), TCD Productions, LLC
(“TCD”), and Andrew L. Clary Jr. (“Clary”) are not seeking relief on appeal and have not filed briefs in this
appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on
appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-1541| May 15, 2020 Page 1 of 15
Kirsch, Judge.
[1] Luke L. Tooley, Jr. (“Tooley”) appeals the trial court’s denial of his motion to
vacate a default judgment that was entered against him in favor of Michael
Ghosh (“Ghosh”). Tooley raises several issues for our review, and we find
dispositive the issue of whether he received sufficient service of process.
Finding that he was properly served, we affirm the trial court’s denial of his
motion to vacate the default judgment.
Facts and Procedural History
[2] On July 11, 2017, Ghosh filed a verified complaint (“initial complaint”) against
Clary-Ghosh, his former spouse, and MCM to set aside fraudulent transfers and
to pierce the corporate veil/alter ego of MCM pursuant to Indiana Code
chapter 32-18-2. Appellant’s App. Vol. 2 at 3, 51-115. MCM’s operating
agreement shows that it is composed of Clary-Ghosh, who served as the
business’s registered agent, Tooley, and Clary, who is the brother of Clary-
Ghosh. Appellee’s App. Vol. 2 at 23, 42, 47. Schedule II of the MCM operating
agreement, titled, “MEMBER INFORMATION, CONTRIBUTION &
INTEREST PERCENTAGE” listed Tooley’s address as follows:
Luke L. Tooley, Jr.
11 Crawfield Street
Dorchester, Massachusetts 02125
Appellee’s App. Vol. 2 at 42. Before Ghosh and Clary-Ghosh were married,
Tooley and Clary-Ghosh had children together and Ghosh and Clary-Ghosh
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went to Tooley’s personal residence in Dorchester, Massachusetts to pick up
Clary-Ghosh’s daughters from their visitation with Tooley. Id. at 21. In the
initial complaint, Ghosh sought to collect on judgments that had been awarded
to him against Clary-Ghosh arising out of the divorce proceedings between him
and Clary-Ghosh, alleging that Clary-Ghosh “fraudulently conveyed all of her
property to MCM with the actual intent to hinder, delay, or defraud [Ghosh].”
Appellant’s App. Vol. 2 at 51-52. On March 8, 2018, Tooley established a
revocable trust into which he subsequently transferred, among other assets, a
2000 Mercedes-Benz CLK 430, a 2002 Chevrolet Venture, a 2005 Lexus GX
470, a 2007 BMV 750i, and a 2005 Mercedes-Benz CLS 500C, vehicles that
Clary-Ghosh owned and had previously transferred to MCM. Appellee’s App.
Vol. 2 at 64-92; 102-06.
[3] On August 27, 2018, Ghosh filed a motion for leave to amend the complaint
(“amended complaint”), seeking to add three additional defendants, Tooley and
Clary, in their individual capacities, and TCD Productions, LLC (“TCD”). Id.
at 233-35. TCD was created by Clary-Ghosh and identified Tooley as its sole
corporate manager. Id. at 241. The trial court granted Ghosh’s motion to
amend on January 3, 2019. Id. at 236. The amended complaint set forth the
amounts of the judgments awarded to Ghosh as a result of the divorce
proceedings between Clary-Ghosh and Ghosh, which totaled $84,567.13. Id. at
238, 240-41. It also set forth the vehicles that Clary-Ghosh owned and
transferred to MCM, which included the vehicles that Tooley had previously
transferred to his revocable trust. Id. at 239-40. The amended complaint sought,
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among other things, to hold Tooley personally liable for the judgments awarded
to Ghosh against Clary-Ghosh in their divorce proceeding. Id. at 243-44.
Ghosh requested relief, in part, for the trial court to order “Tooley personally
liable for [Clary-Ghosh’s] debts and financial obligations due and owing
Ghosh” and to order Tooley (along with MCM, TCD, Clary-Ghosh, and
Clary) to “pay Ghosh punitive damages for their malicious and/or fraudulent
conduct . . . .” Id. at 245.
[4] Ghosh engaged a private process server to serve Tooley, a resident of
Massachusetts, with the summons, amended complaint, and the order granting
motion for leave to amend at the address for the residence listed in the MCM
operating agreement, 11 Crawfield Street, Dorchester, Massachusetts 02125
(“11 Crawfield”). Appellant’s App. Vol. 2 at 237, 246-49. It was discovered that
11 Crawfield did not exist in Dorchester, but there was an 11 Cawfield Street,
Dorchester, Massachusetts 02125 (“11 Cawfield”). Appellee’s App. Vol. 2 at 22.
Ghosh’s process server made five unsuccessful attempts to serve Tooley at 11
Cawfield throughout January 2019 but eventually successfully served Tooley on
February 4, 2019 at 11 Cawfield with the summons, amended complaint, and
order granting motion for leave to amend. Appellant’s App. Vol. 2 at 249. The
process server noted that he left the documents at 11 Cawfield and mailed a
copy of the documents served via first class United States Mail. Id.
[5] On February 7, 2019, Ghosh filed a verified notice of service of process on
Tooley and attached the process server’s affidavit of service, which the trial
court entered into its chronological case summary (“CCS”). Id. at 246-49. On
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March 15, 2019, Ghosh filed a motion for default judgment against Tooley to
which he attached an affidavit from his trial counsel in support of his motion.
Appellant’s App. Vol. 3 at 7-10. The affidavit indicated that Tooley was served
with a copy of the summons and the amended complaint on February 4, 2019,
failed to appear, plead, or defend himself before February 27, 2019, which was
the deadline for Tooley to respond to the amended complaint, and that Tooley
was not currently in the armed forces of the United States. Id. at 9-10.2
[6] On May 1, 2019, the trial court granted Ghosh’s motion and entered a default
judgment against Tooley. Appellant’s App. Vol. 2 at 26-27. The trial court
awarded Ghosh a judgment against Tooley in the amount of $84,567.13 plus
interest, a $75,000 award of punitive damages plus interest, and attorney’s fees
and costs with the amount to be determined at a damages hearing. Id. On May
28, 2019, Tooley filed a motion to vacate default judgment and motion to
dismiss pursuant to Trial Rule 12(b)(5) (“motion to vacate”), which included an
exhibit declaring that he did not reside at 11 Crawfield and that he never
received a summons or amended complaint either by hand-delivery or through
the United States Mail. Appellant’s App. Vol. 3 at 17-23. Citing Indiana Trial
Rule 60(B)(6), Tooley argued that the trial court’s entry of default judgment
2
CCS entries dated March 22, 2019, March 27, 2019, April 2, 2019, and April 5, 2019 show that first class
mail sent to Tooley at 11 Crawfield was returned. Appellant’s App. Vol. 2 at 17; Appellant’s App. Vol. 3 at 2-6.
The March 22, 2019 CCS entry indicates “[o]rder, return marked ATTEMPTED NOT KNOWN,” and the
March 27, 2019 CCS entry indicates “[n]otice, return marked NOT DELIVERABLE AS ADDRESSED[.]”
Appellant’s App. Vol. 2 at 17. The April 2, 2019 CCS entry notes “[o]rder, return marked NO SUCH
STREET[.]” Id. Three identical April 5, 2019 CCS entries indicate “[n]otice, return marked ATTEMPTED
NOT KNOWN[.]” Id.
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against him should be set aside because he was not served with the summons
and amended complaint and that there was no showing that he had minimum
contacts with Indiana to subject him to the personal jurisdiction of the trial
court. Id. at 17. On June 10, 2019, Ghosh filed his response in opposition to
Tooley’s motion to vacate along with supporting exhibits. Appellee’s App. Vol. 2
at 5-110. Ghosh argued in his response that Tooley was properly served and
had sufficient minimum contacts to support the trial court’s exercise of personal
jurisdiction. Id. at 5.
[7] On July 2, 2019, the trial court denied Tooley’s motion to vacate, finding that
Tooley was properly served and that the trial court had personal jurisdiction
over Tooley. Appellant’s App. Vol. 2 at 32-41. With respect to service and
personal jurisdiction, the trial court’s order provided, in part, as follows:
5. In this case, [Ghosh] stated in an Affidavit that, during his
marriage to [Clary-Ghosh], he “accompanied her to Dorchester,
Massachusetts on at least one occasion to visit with her children’s
father, [Tooley], at his personal residence. Said visit was to pick
up her daughters from their visitation with [Tooley] in order to
return them to Hamilton County, Indiana.
6. Further, [Ghosh] stated in his Affidavit that “[Tooley’s]
personal residence is located at 11 Cawfield Street, Dorchester,
Massachusetts 02125” (emphasis added).
7. On February 7, 2019, a Verified Notice of Service of Process on
Luke L. Tooley Jr. stated that “[o]n February 4, 2019 at
approximately 12:59 p.m. EST, John Roberto, a process server
and disinterested person . . . delivered copies of a Summons
directed to [Tooley] and the Amended Complaint in an envelope by
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posting them at [Tooley’s] dwelling house located at 11
Crawfield Street, Dorchester, Massachusetts 02125” and serving
them “by first class United States Mail, postage pre-paid
addressed to [Tooley], 11 Crawfield Street, Dorchester,
Massachusetts 02125” (emphasis added)
8. However, despite the spelling distinction in the Verified Notice of
Service, John Roberto’s Affidavit of Service attached to the Verified
Notice of Service on Process on Luke L. Tooley Jr. filed on February 7,
2019, states that Tooley’s address was “11 Cawfield Street,
Dorchester, MA 02125” (emphasis added). Not only that, but
there was a successful attempt of service after five unsuccessful
attempts, where, on February 4, 2019, Roberto “LEFT
DOCUMENT(s) LAST & USUAL, ALSO MAILED, VIA 1ST
CLASS U.S. MAIL, COPY OF DOCUMENT(s) SERVED” at
11 Cawfield Street in Dorchester, Massachusetts.
9. In an affidavit attached to his Motion to Vacate and Motion to
Dismiss, Tooley argues that “although several relatives of [his]
reside at 11 Crawfield Street, Dorchester, Massachusetts, 02125,
[he had] never resided there,” and that he had “never received a
summons or complaint regarding this action, either by hand-
delivery or the U.S. Mail” (emphasis added).
10. The Court takes judicial notice that-according to Google
Maps, Apple Maps, Waze, and Mapquest-there is no Crawfield
Street in Dorchester, Massachusetts. There is undoubtedly,
however, a Cawfield Street in Dorchester, Massachusetts and,
specifically, a house located at 11 Cawfield Street in Dorchester,
Massachusetts.
11. Tooley’s allegations that he never resided at 11 Crawfield
Street in Dorchester, Massachusetts may be true because that
address does not exist.
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12. However, there is evidence that [Ghosh] actually went to 11
Cawfield Street in Dorchester, MA 02125 with [Clary-Ghosh],
which was Tooley’s personal residence, to specifically visit with
Tooley and pick up [Ghosh’s] step-children from their visitation
with Tooley.
13. There is also evidence that Tooley executed an Operating
Agreement Limited Liability Company (LLC) on behalf of Defendant
MCM Fashions (“MGM Operating Agreement”), LLC in his
capacity as its co-member and 50/50 shareholder. The Operating
Agreement lists Tooley’s address as: 11 Crawfield Street,
Dorchester, Massachusetts 02125
14. In light of the facts that (1) there is no Crawfield Street in
Dorchester, Massachusetts, (2) [Ghosh] actually visited Tooley at
Tooley’s personal residence at 11 Cawfield Street in Dorchester,
Massachusetts, and (3) MCM Fashions, LLC’s Operating
Agreement lists Tooley’s Address as 11 Crawfield Street in
Dorchester, Massachusetts (which is clearly a scrivener’s error
based on the fact that there’s no Crawfield Street in Dorchester,
Massachusetts), [Ghosh] has shown that “even though a name
was incorrect, the correct party was served,” and the Court
deems the service on Tooley at 11 Cawfield Street proper under
Indiana Trial Rule 4.1(A) & (B). . . .
....
21. In [Ghosh’s] Amended Complaint, [Ghosh] listed that
Tooley was a corporate member of [MCM]; fathered a child with
[Clary-Ghosh]; and was a managing member of [TCD].
22. In [Ghosh’s] Response in Opposition to Defendant Luke L. Tooley
Jr.’s Motion to Vacate Default Judgment and Motion to Dismiss,
[Ghosh] listed out a number of factors related to Tooley’s
minimum contacts related to [Ghosh’s] IUFTA cause of action:
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a. On November 15, 2011, Tooley executed the MCM
Operating Agreement on behalf of Defendant MCM
Fashions, LLC. The MCM Operating Agreement states that
“The Registered Office or Headquarters and Registered
Agent shall be as follows: 3538 East Carmel Drive,
Carmel, Indiana 46033.”
b. The MCM Operating Agreement stated that Tooley would
be a comember and 50/50 shareholder of [MCM].
c. The MCM Operating Agreement further states that special
meetings would take place at the “principal place of
business of the Company.”
d. On November 15, 2011, MCM filed its Articles of
Organization with the Indiana Secretary of State, which
listed the location of its principal office at 3538 East
Carmel Drive, Carmel, Indiana 46033.
e. On August 14, 2013, MCM, by and through its
Manager Meleeka Ghosh, filed a Certificate of Amendment
with the Indiana Secretary of State that identified its
principal office located at 3585 East Carmel Drive,
Carmel, Indiana 46033, and added Tooley as a Member.
f. On or about August 24, 2016, Tooley purchased real
property located at 1112 East Taylor Street, Kokomo,
Indiana 46901.
g. On or about October 26, 2006, Tooley purchased real
property located at 1106 East Monroe Street, Kokomo,
Indiana 46901.
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h. On or about March 8, 2018, Tooley hired counsel for
MCM in Marion County, Indiana to create a Revocable
Trust Agreement, which Tooley then submitted and
published with the Indiana Bureau of Motor Vehicles.
i. Thereafter, MCM transferred five vehicles, including
their respective licenses and registrations, into Tooley’s
Revocable Trust. The vehicles were purchased, registered,
and licensed in Indiana. Those cars are specifically listed
in [Ghosh’s] original Complaint and Amended Complaint.
j. On March 18, 2018, Tooley transferred the Taylor Street
property into his Revocable Trust. Tooley directed the
Howard County Recorder to return a copy of the recorded
Warranty Deed to: “Luke Tooley, Jr., 3145 Hazel Foster
Drive, Carmel, Indiana 46033.”
k. On or about July 6, 2018, Tooley purchased a 2007
Lincoln Navigator and a 2006 Mercedes CLS500C from
Sims Auto, Inc. located at 1636 East Sycamore Street,
Kokomo, Indiana 46901, which he subsequently
transferred, including their respective licenses and
registrations, into Tooley’s Revocable Trust.
l. On January 17, 2019, Tooley transferred the Monroe
Street property into his Revocable Trust. Tooley directed
the Howard [C]ounty Recorder to return a copy of the
recorded Warranty Deed to “Luke Tooley, Jr., 3145 Hazel
Foster Drive, Carmel, Indiana 46033.”
23. The Court finds that, based on all the above facts and
circumstances, that Tooley has sufficient minimum contacts with
Indiana related to the cause of action, and that maintenance of
the suit does not offend traditional notions of fair play and
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substantial justice. As such, the Court has specific personal
jurisdiction over Tooley over this cause of action.
Id. at 34-37, 38-41 (emphases in original). Tooley now appeals.
Discussion and Decision
[8] Tooley contends that the trial court lacked jurisdiction to enter default
judgment against him due to insufficient service of process.3 Therefore, he
argues that the judgment is void under Indiana Trial Rule 60(B)(6), and the trial
court erred when it denied his motion to vacate the default judgment. A
motion made under Trial Rule 60(B) to set aside a judgment is addressed to the
equitable discretion of the trial court. In re Paternity of P.S.S., 934 N.E.2d 737,
740-41 (Ind. 2010). “Typically, we review a trial court’s ruling on a motion to
set aside a judgment for an abuse of discretion, meaning that we must
determine whether the trial court’s ruling is clearly against the logic and effect
of the facts and inferences supporting the ruling.” Hair v. Deutsche Bank Nat’l
Trust Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citing Yoder v. Colonial
Nat’l Mortg., 920 N.E.2d 798, 800-01 (Ind. Ct. App. 2010)). “However, whether
3
Tooley raises two other arguments as to why the trial court erred in denying his motion to vacate the default
judgment, specifically: (1) that the allegations in Ghosh’s amended complaint cannot support the trial court’s
entry of a default judgment against him; and (2) that the evidence is insufficient to pierce MCM’s corporate
veil. However, Tooley failed to raise those arguments in his motion to vacate; thus, Tooley has waived those
arguments for our review. It is the general rule that an argument or issue raised for the first time on appeal is
waived for appellate review. See, e.g., Reynolds v. Reynolds, 64 N.E.3d 829, 834 (Ind. 2016) (“Appellants may
not sit idly by and raise issues for the first time on appeal.”); Carney v. Patino, 114 N.E.3d 20, 29 n.6 (Ind. Ct.
App. 2018) (“The trial court cannot be found to have erred as to an issue or argument that it never truly had
an opportunity to consider.”), trans. denied.
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personal jurisdiction exists over a defendant is a question of law that we review
de novo.” Id. “A judgment entered where there has been insufficient service of
process is void for want of personal jurisdiction.” Id. (citing Front Row Motors,
LLC v. Jones, 5 N.E.3d 753, 759 (Ind. 2014)).
[9] We note at the outset that Tooley is a nonresident of Indiana and advances no
argument that he lacked minimum contacts with Indiana; rather, he is arguing
that he was not served with a summons. Here, Ghosh served Tooley under
Indiana Trial Rule 4.1(A)(3), which provides that “[s]ervice may be made upon
an individual, or an individual acting in a representative capacity, by . . .
leaving a copy of the summons and complaint at his dwelling house or usual
place of abode” and provides in subdivision (B) that whenever service is made
under clause (3) “the person making the service also shall send by first class
mail, a copy of the summons and the complaint to the last known address of the
person being served, and this fact shall be shown upon the return.”
Recognizing that there was no street known as 11 Crawfield in Dorchester,
Massachusetts, Tooley was served on February 4, 2019 at the correct address,
11 Cawfield. Appellee’s App. Vol. 2 at 22; Appellant’s App. Vol. 2 at 249. The
notation on the notarized affidavit of service includes a job number and
indicates that a mailbox at 11 Cawfield listed Tooley’s name on it, that the
summons, amended complaint, and order granting motion for leave to amend
were left at 11 Cawfield, and that copies were then mailed first class to 11
Cawfield as required by Trial Rule 4.1(B). Appellant’s App. Vol. 2 at 249. Tooley
does not argue that there is another address that should have been used to serve
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him, and we cannot say that he received insufficient service of process. We
conclude that Tooley received “‘notice reasonably calculated, under all the
circumstances, to apprise [him] of the pendency of the action and afford [him]
an opportunity to present [his] objections.” See Anderson v. Wayne Post 64, Am.
Legion Corp., 4 N.E.3d 1200, 1206 (Ind. Ct. App. 2014)
[10] To the extent that Tooley argues that the summons was not correctly entered
into the CCS or that the summons was otherwise not proper, we note that “it is
well settled that the trial court speaks through its CCS or docket[.]” City of
Indianapolis v. Hicks, 932 N.E.2d 227, 233 (Ind. Ct. App. 2010), trans. denied.
We acknowledge that there is no document in the record titled summons with
respect to Tooley; however, as previously noted, the trial court’s CCS shows a
February 7, 2019 entry for an electronically filed certificate of issuance of
summons for Tooley. Id. at 14, 246-48. At the time Tooley was served,
Indiana Trial Rule 86(G), which sets forth the procedure for electronically filed
service, provided in pertinent part:
(2) Issuance of Summons and Service of Initial Complaint or
Equivalent Pleading.
(a) Except as provided below in (Q), at the time the initial
complaint or equivalent pleading is filed, the filer shall also file
completed summons(es) designating the manner of service. The
Clerk shall date, sign and seal the summons(es) and transmit the
summons(es) to the filer for service.
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(b) The filer shall serve the initial complaint or equivalent
pleading and the summons upon all parties in the manner
provided in Trial Rules 4.1 through 4.14.
(c) In the event of service by registered or certified mail, or other
public means by which a written acknowledgement of receipt
may be requested and obtained, or first class mail (as provided in
Trial Rule 4.1(B)) the filer shall promptly transmit to the Clerk a
dated and signed Certificate of Issuance of Summons specifying
the method of service with respect to each party, the date of
mailing, address of each party, and tracking or identifying
number for each summons.
(d) All returns regarding service shall be directed and made to the
Clerk.
....
(iii) If service was made by the filer leaving a copy of the
summons and complaint or equivalent pleading at the dwelling
house or usual place of abode of the party under Trial Rule
4.1(A)(3), the filer shall complete service as required by Trial
Rule 4.1(B) and promptly transmit a dated and signed Affidavit
of Service to the Clerk.
That same February 7, 2019 entry referred to Ghosh’s filing of a verified notice
of service of process and accompanying notarized process server’s affidavit
which noted that the summons was one of the documents served on Tooley, as
set forth above. We find no error in the propriety of the trial court’s CCS entry
regarding the certificate of issuance of summons for Tooley. Therefore, we
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conclude that the default judgment entered against Tooley is valid, and the trial
court correctly denied Tooley’s motion to vacate.
[11] Affirmed.
Najam, J., and Brown, J., concur.
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