MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral                                       FILED
estoppel, or the law of the case.                                        Sep 13 2017, 7:41 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Dennis F. Cantrell                                       Robin R. Craig
Paul D. Mackowski                                        Evansville, Indiana
Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samandar Reeckmann a/k/a                                 September 13, 2017
Samandar Leaitu Reeckmann,                               Court of Appeals Case No.
Appellant-Defendant,                                     82A01-1701-PL-135
                                                         Appeal from the Vanderburgh
        v.                                               Superior Court
                                                         The Honorable Leslie C. Shively,
Clarence Wolfe, Jr. and Jan                              Judge
Wolfe,                                                   Trial Court Cause No.
Appellees-Plaintiffs.                                    82D01-1510-PL-5513




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017          Page 1 of 12
                                             Case Summary
[1]   On August 27, 2014, Appellee/Plaintiff Clarence Wolfe Jr. was attacked by a

      dog while attempting to serve court documents on behalf of the Vanderburgh

      County Sheriff’s Department at a residence located at 1501 South Grand

      Avenue in Evansville. During the attack, Clarence suffered a bite to the hand.

      At the time, the residence was owned by Appellant/Defendant Samandar L.

      Reeckmann and was inhabited by Jessica L. Hughes a/k/a Jessica L.

      Higginbottom. As a result of the attack, Clarence lost the ability to use his

      hand. Clarence also suffered lost wages and incurred medical expenses.


[2]   On October 27, 2015, Clarence and his wife, Jan Wolfe, (collectively, “the

      Wolfes”) filed suit against Reeckmann and Higginbottom (collectively, “the

      Defendants”). In addition to Clarence’s damages relating to Clarence’s injuries,

      lost wages, and medical expenses, the Wolfes also alleged that Jan had suffered

      loss of consortium as a result of the bite and sought damages for such. Neither

      of the Defendants responded to the Wolfes’ lawsuit.1


[3]   The Wolfes subsequently sought, and the trial court entered, default judgment

      against the Defendants. On March 21, 2016, the trial court entered judgment

      against the Defendants, jointly and severally, in the amount of $36,064.60, plus




      1
        For the purposes of this appeal, we will assume that service upon Higginbottom was sufficient as
      Higginbottom has not challenged the trial court’s personal jurisdiction over her at either the trial court or
      appellate level. Thus, given that the instant appeal only concerns whether Reeckmann was properly served
      with notice of the underlying lawsuit, we will limit our review to whether the service upon Reeckmann was
      sufficient to give the trial court personal jurisdiction over Reeckmann.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017           Page 2 of 12
      costs. The trial court conducted a hearing on June 23, 2016, to determine

      Reeckmann’s ability to pay the default judgment. Reeckmann appeared at this

      hearing. He did not contest the trial court’s jurisdiction over him at this time

      and in fact entered into an agreed order of personal garnishment.

      Approximately two and one-half months later, on September 8, 2016,

      Reeckmann filed a motion to set aside the default judgment, arguing for the first

      time that the trial court lacked personal jurisdiction over him. The trial court

      subsequently denied Reeckmann’s motion.


[4]   On appeal, Reeckmann challenges the trial court’s denial of his motion to set

      aside the default judgment. In doing so, Reeckmann argues that the trial court

      erred in finding that it had personal jurisdiction over him. He also argues that

      the trial court should have granted his motion to set aside the default judgment

      because the requested relief was both necessary and just. Concluding that the

      trial court properly determined that it had personal jurisdiction over

      Reeckmann and that Reeckmann’s requested relief was not necessary and

      would not be just, we affirm.



                            Facts and Procedural History
[5]   In August of 2014, Clarence was under contract with the Vanderburgh County

      Sheriff’s Department to serve court documents. On August 27, 2014, Clarence

      was working in this capacity when he was attacked by a dog at a residence

      located at 1501 South Grand Avenue in Evansville. During the attack,

      Clarence suffered a bite to the hand. As a result of the attack, Clarence lost the

      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 3 of 12
      ability to use his hand. Clarence also suffered lost wages and incurred medical

      expenses.


[6]   On the date in question, Reeckmann owned the residence located at 1501 South

      Grand Avenue. It was inhabited by Higginbottom, who is alleged to have

      owned the dog that attacked Clarence.


[7]   On October 27, 2015, the Wolfes filed suit against the Defendants. The Wolfes’

      alleged that Clarence suffered injuries “as a direct and proximate result of the

      Defendants’ careless and negligent acts or omissions” when he was attacked by

      a dog which exhibited “vicious propensities” during the discharge of his duties.

      Appellant’s App. Vol. II, p. 17. The Wolfes sought damages relating to

      Clarence’s injuries, lost wages, and medical expenses. They also sought

      damages relating to Jan’s claimed loss of consortium.


[8]   The Wolfes used various methods in their attempts to serve Reeckmann with

      notice of the lawsuit. The record indicates that service was successful on two

      occasions. On November 24, 2015, Reeckmann was served with “personal”

      service of an alias summons and a copy of the complaint by D. McKnight of the

      Vanderburgh County Sheriff’s Department. Appellee’s App. Vol. II, p. 4. On

      January 28, 2016, Reeckmann was served with a “copy” of a second alias

      summons and copy of the complaint by D. McKnight. Appellee’s App. Vol. II,

      p. 5. Reeckmann, however, did not respond to the Wolfes’ lawsuit.


[9]   The Wolfes sought default judgment against the Defendants on March 3, 2016.

      The trial court entered default judgment against the Defendants on March 7,

      Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 4 of 12
       2016. The trial court subsequently entered judgment against the Defendants,

       jointly and severally, in the amount of $36,064.60, plus costs.


[10]   The Wolfes subsequently sought to enforce satisfaction of the default judgment.

       On June 7, 2016, the Wolfes requested that the trial court conduct a hearing at

       which the Defendants would be ordered to appear and answer questions

       concerning their property, profits, and income. The trial court conducted this

       hearing on June 23, 2016. Reeckmann appeared before the trial court during

       the June 23, 2016 hearing. Reeckmann did not contest the trial court’s

       jurisdiction over him at this time. Instead, the record indicates that Reeckmann

       “appeared in open Court on 6-23-16 in response to Proceedings Supplemental

       to Execution and entered into an Agreed Order of Personal Garnishment

       accordingly.” Appellant’s App. Vol. II, p. 10. At the conclusion of this

       hearing, the trial court ordered garnishment in the amount of $100 per week

       toward the default judgment.


[11]   On September 8, 2016, Reeckmann filed a motion to set aside the default

       judgment, arguing for the first time that the trial court lacked personal

       jurisdiction over him. Following a hearing, the trial court denied Reeckmann’s

       motion. Reeckmann then filed a motion to correct error, which was also

       denied by the trial court. This appeal follows.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 5 of 12
[12]   On appeal, Reeckmann contends that the trial court abused its discretion by

       denying his request to set aside the default judgment which had been entered

       against him. In making this contention, Reeckmann argues that the trial court

       erred in finding that it had personal jurisdiction over him. Reeckmann also

       argues that the trial court should have granted his motion to set aside the

       default judgment because the requested relief was both necessary and just.


                                      I. Standard of Review
[13]           The decision whether to set aside a default judgment is given
               substantial deference on appeal. Our standard of review is
               limited to determining whether the trial court abused its
               discretion. An abuse of discretion may occur if the trial court’s
               decision is clearly against the logic and effect of the facts and
               circumstances before the court, or if the court has misinterpreted
               the law. We may affirm a general default judgment on any
               theory supported by the evidence adduced at trial. The trial
               court’s discretion is necessarily broad in this area because any
               determination of excusable neglect, surprise, or mistake must
               turn upon the unique factual background of each case.
               Moreover, no fixed rules or standards have been established
               because the circumstances of no two cases are alike. A cautious
               approach to the grant of motions for default judgment is
               warranted in cases involving material issues of fact, substantial
               amounts of money, or weighty policy determinations. In
               addition, the trial court must balance the need for an efficient
               judicial system with the judicial preference for deciding disputes
               on the merits. Furthermore, reviewing the decision of the trial
               court, we will not reweigh the evidence or substitute our
               judgment for that of the trial court. Upon a motion for relief
               from a default judgment, the burden is on the movant to show
               sufficient grounds for relief under Indiana Trial Rule 60(B).



       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 6 of 12
       Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999) (internal

       citations and quotation omitted); see also Huntington Nat. Bank, v. Car-X Assoc.

       Corp., 39 N.E.3d 652, 655 (Ind. 2015) (quoting Kmart, 719 N.E.2d at 1253).


[14]   While the decision of whether to set aside a judgment is usually given

       substantial deference on appeal, the question of whether a trial court has

       personal jurisdiction over a defendant is a question of law. In re Adoption of

       D.C., 887 N.E.2d 950, 955 (Ind. Ct. App. 2008).


               As with other questions of law, a determination of the existence
               of personal jurisdiction is entitled to de novo review by appellate
               courts. This court does not defer to the trial court’s legal
               conclusion as to whether personal jurisdiction exists. However,
               personal jurisdiction turns on facts, and findings of fact by the
               trial court are reviewed for clear error. Clear error exists where
               the record does not offer facts or inferences to support the trial
               court’s findings or conclusions of law.


       Id. (internal citations omitted). “Ineffective service of process prohibits a trial

       court from having personal jurisdiction over a respondent.” Id. (citing

       Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind. Ct.

       App. 2001)). “A judgment rendered without personal jurisdiction over a

       defendant violates due process and is void.” Id. (citing Stidham v. Whelchel, 698

       N.E.2d 1152, 1154 (Ind. 1998)).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 7 of 12
       II. Whether the Trial Court Erred in Determining that it
             had Personal Jurisdiction over Reeckmann
[15]   Reeckmann argues that the trial court abused its discretion in denying his

       motion to set aside the default judgment entered against him because the trial

       court did not have personal jurisdiction over him. We disagree.


[16]   As is stated above, the record indicates that Reeckmann was served with notice

       of the lawsuit on two separate occasions. On November 24, 2015, Reeckmann

       was served with “personal” service of an alias summons and a copy of the

       complaint by D. McKnight of the Vanderburgh County Sheriff’s Department.

       Appellee’s App. Vol. II, p. 4. On January 28, 2016, Reeckmann was served

       with a “copy” of a second alias summons and copy of the complaint by D.

       McKnight. Appellee’s App. Vol. II, p. 5.


[17]   Furthermore, even if Reeckmann had not been personally served with notice of

       the lawsuit, he has waived his claim of lack of personal jurisdiction by

       submitting himself to the trial court’s jurisdiction. We have previously

       concluded that a defendant “can waive the lack of personal jurisdiction and

       submit himself to the jurisdiction of the court if [he] responds or appears and

       does not contest the lack of jurisdiction.” Thomison v. IK Indy, Inc., 858 N.E.2d

       1052, 1055 (Ind. Ct. App. 2006). The facts of the instant matter indicate that

       not only did Reeckmann appear before the trial court during the June 23, 2016

       hearing on Proceedings Supplemental, he participated in the hearing and

       entered into an agreed order of personal garnishment. Nothing in the record

       indicates that Reeckmann made any challenge to the trial court’s alleged lack of
       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 8 of 12
       jurisdiction over him when he appeared before the trial court. As such, we

       conclude that Reeckmann has waived any challenge to the alleged lack of

       personal jurisdiction as he appeared before the court and submitted himself to

       the jurisdiction of the court by entering into an agreed order of garnishment.

       Given that Reeckmann waived any jurisdictional claim that he might have had

       by submitting himself to the jurisdiction of the trial court, the trial court cannot

       be said to have abused its discretion in exercising its jurisdiction over

       Reeckmann.


          III. Whether the Trial Court Abused its Discretion in
              Determining that the Requested Relief was Not
                            Necessary or Just
[18]   Reeckmann argues that the trial court should have granted his motion to set

       aside the judgment because such requested relief was necessary and just.


                The grant or denial of a Trial Rule 60(B) motion for relief from
                judgment is left to the equitable discretion of the trial court. G.H.
                Skala Construction Co. v. NPW, Inc., 704 N.E.2d 1044, 1047 (Ind.
                Ct. App. 1998). We will reverse only if the trial court abused its
                discretion. Id. An abuse of discretion occurs when the trial
                court’s judgment is clearly against the logic and effect of the facts
                and inferences supporting the judgment for relief. Id.


       Cullimore v. St. Anthony Med. Ctr., Inc., 718 N.E.2d 1221, 1223 (Ind. Ct. App.

       1999).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 9 of 12
[19]   The relevant portions of the version of Indiana Trial Rule 60(B) which was in

       effect when Reeckmann filed his motion for relief from judgment provide as

       follows:


               Rule 60. Relief from Judgment or order
                                                ****
               (B) Mistake—Excusable neglect—Newly discovered
               evidence—Fraud, etc. On motion and upon such terms as are
               just the court may relieve a party or his legal representative from
               a judgment, including a judgment by default, for the following
               reasons:
                                                ****
                      (8) any reason justifying relief from the operation of a
                      judgment, other than those reasons set forth in sub-
                      paragraph (1), (2), (3), and (4).
               The motion shall be filed within a reasonable time for … (8), and
               … (8) must allege a meritorious claim or defense.


       (Bold in original). A party seeking relief from judgment under subsection (B)(8)

       must affirmatively demonstrate extraordinary circumstances. Cullimore, 718

       N.E.2d at 1224 (citing G.H. Skala, 704 N.E.2d at 1047).


               Among other things, exceptional circumstances do not include
               mistake, surprise, or excusable neglect, which are set out in Rule
               60(B)(1). [Brimhall v. Brewster, 864 N.E.2d 1148, 1153 (Ind. Ct.
               App. 2007)]. Trial Rule 60(B)(8) has in the past been
               distinguished on the following grounds:
                      [Trial Rule] 60(B)(8) is an omnibus provision which
                      gives broad equitable power to the trial court in the
                      exercise of its discretion and imposes a time limit
                      based only on reasonableness. Nevertheless, under
                      T.R. 60(B)(8), the party seeking relief from the
                      judgment must show that its failure to act was not

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 10 of 12
                      merely due to an omission involving the mistake,
                      surprise or excusable neglect. Rather some
                      extraordinary circumstances must be demonstrated
                      affirmatively. This circumstance must be other than
                      those circumstances enumerated in the preceding
                      subsections of T.R. 60(B).
               Id. (quoting Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276,
               279-80 (Ind. Ct. App. 2000) (internal quotation omitted)).


       Baker & Daniels, LLP v. Coachmen Indus., Inc., 924 N.E.2d 130, 140 (Ind. Ct.

       App. 2010), trans. denied. “For all subsections of T.R. 60(B), the burden is on

       the movant to establish the grounds for relief.” Cullimore, 718 N.E.2d at 1224

       (citing G.H. Skala, 704 N.E.2d at 1047).


[20]   We reiterate that Reeckmann personally appeared before the trial court and

       agreed to the imposed garnishment order. It would be contrary to justice to

       allow Reeckmann to later come back to the court and argue that an agreed

       order must be set aside. Further, while Reeckmann has presented what he

       alleges to be a meritorious defense, he has failed to affirmatively demonstrate

       any extraordinary circumstances which would justify granting relief from the

       default judgment under Trial Rule 60(B)(8).



                                               Conclusion
[21]   In sum, Reeckmann was served twice with notice of the lawsuit. Furthermore,

       even if we were to assume that he did not receive notice of the lawsuit,

       Reeckmann has waived his claim relating to personal jurisdiction as he

       submitted himself to the jurisdiction of the trial court and agreed to the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 11 of 12
       garnishment order. Reeckmann also failed to affirmatively demonstrate any

       extraordinary circumstances which would justify relief under Trial Rule

       60(B)(8). As such, Reeckmann has failed to demonstrate that the trial court

       abused its discretion by denying his request that the default judgment entered

       against him be set aside. We therefore affirm the judgment of the trial court.


[22]   The judgment of the trial court is affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1701-PL-135 | September 13, 2017   Page 12 of 12
