MEMORANDUM DECISION

ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     May 05 2017, 8:29 am

court except for the purpose of                                    CLERK
                                                               Indiana Supreme Court
establishing the defense of res judicata,                         Court of Appeals
                                                                    and Tax Court
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce P. Clark                                          Duke T. Escue
Bruce P. Clark & Associates                             Walter J. Alvarez
Saint John, Indiana                                     Walter J. Alvarez, P.C.
                                                        Crown Point, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

Menard, Inc.,                                           May 5, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1606-CT-1283
v.
                                                        Appeal from the Lake County
Reba Lane,                                              Circuit Court
Appellee-Plaintiff                                      The Honorable George Paras,
                                                        Judge;
                                                        The Honorable Robert Vann,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        45C01-1308-CT-128



May, Judge.


Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
                                                                                             Page 1 of 3
[1]   Menard, Inc. requests rehearing of our decision in Menard, Inc. v. Lane, 68

      N.E.3d 1106 (Ind. Ct. App. 2017), arguing our court erred when it reviewed the

      trial court’s decision to deny Menard’s motion to set aside judgment under the

      abuse of discretion standard of review because “[a]lthough appropriate for the

      other aspects of the Appeal, this was not the appropriate review for the issues

      surrounding sufficiency of service.” (Br. of Appellant on Rehearing at 13.)

      Menard is correct the language does not accurately reflect the standard of

      review, and we grant rehearing to revise language we used in the opinion.


[2]   In Menard, we began our analysis of the trial court’s denial of Menard’s Trial

      Rule 60(B) motion by stating we “review a trial court’s denial of a motion to set

      aside judgment for an abuse of discretion.” Menard, 68 N.E.3d at 1109 (quoting

      LePore v. Norwest Bank Indiana, N.A., 711 N.E.2d 1259, 1264 (Ind. 1999)). As

      Menard had requested relief from the default judgment in favor of Lane based

      first on Menard’s allegation the judgment was void as a result of inadequate

      service of process, we then narrowed our focus to Trial Rule 60(B)(6), which

      allows relief from a default judgment if the challenged judgment is void for lack

      of service of process. In that instance, 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.” Id. at 1109 (quoting Anderson v. Wayne Post 64, 4 N.E.3d 1200,

      1205 (Ind. Ct. App. 2014), trans. denied).


[3]   After applying the trial rules that control service of process to the facts of this

      case and distinguishing the cases cited by Menard, we concluded our analysis of

      the issue by writing:
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
                                                                                                   Page 2 of 3
              Sergeant Coubal followed the letter of Trial Rule 4.1(B) as
              evidenced by the copy of the summons with the stamp indicating
              he delivered the summons and complaint, and the return receipt
              for the copy of the summons and complaint sent by certified
              mail; thus, we cannot say the trial court abused its discretion
              when it denied Menard’s motion to set aside default judgment
              based on the adequacy of Lane’s service of process.


      Id. at 1101.


[4]   As Menard argues on rehearing, we should not have used the phrase “abuse of

      discretion” in that context, because “if a judgment is valid, the trial court

      cannot declare it void and the motion [under Trial Rule 60(B)(6)] must be

      denied.” Anderson v. Wayne Post 64, 4 N.E.3d 1200, 1205 (Ind. Ct. App. 2014),

      trans. denied. Instead, the end of that paragraph should have read:


              Sergeant Coubal followed the letter of Trial Rule 4.1(B), as
              evidenced by the copy of the summons with the stamp indicating
              he delivered the summons and complaint and the return receipt
              for the copy of the summons and complaint sent by certified
              mail. Thus, Lane’s service of process was adequate and the default
              judgment is valid. The trial court correctly denied Menard’s motion to
              set aside default judgment based on the adequacy of Lane’s service of
              process.


[5]   We grant rehearing to revise only that language and affirm the original result in

      all other respects.


      Kirsch, J., and Crone, J., concur.




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
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