MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Dec 12 2016, 5:41 am
regarded as precedent or cited before any
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

Jeremy A. Wroblewski
Mishawaka, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy A. Wroblewski,                                    December 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1602-SC-318
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
FS Financial, LLC,                                       The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         71D01-0206-SC-8208




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016   Page 1 of 10
                                               Case Summary
[1]   Jeremy A. Wroblewski, pro se, appeals the trial court’s denial of his motion to

      set aside the small claims default judgment entered against him and in favor of

      FS Financial, LLC. Specifically, Wroblewski contends that the trial court’s

      default judgment is void for lack of personal jurisdiction and should be set

      aside. Finding that the trial court indeed had personal jurisdiction over

      Wroblewski, we affirm.


                                   Facts and Procedural History
[2]   In November 2000, Wroblewski entered into a retail installment contract with

      Smith Auto Credit for the purchase of a 1991 Chevrolet Camaro. The contract

      provided for an immediate assignment of the debt to First Step Finance.

      Wroblewski listed his address as 2526 Fredrickson Street, South Bend, Indiana.

      Pursuant to the terms of the contract, Wroblewski was required to notify First

      Step Finance of any change of address, but he never did so.


[3]   On June 24, 2002, First Step Finance (hereinafter “FS Financial” 1) filed a small

      claims lawsuit against Wroblewski in the St. Joseph Superior Court alleging

      nonpayment of the outstanding balance due on the contract. On June 27, 2002,

      the St. Joseph County sheriff delivered a copy of notice of claim to the 2526

      Fredrickson Street address. On July 31, 2002, the trial court held a hearing on




      1
        On June 17, 2005, First Step Finance assigned the cause of action to FS Financial, LLC, and filed a motion
      to substitute plaintiff which was granted by the trial court.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016         Page 2 of 10
      FS Financial’s claim. Wroblewski did not appear at the hearing, and the trial

      court entered a default judgment against him.


[4]   Thereafter, FS Financial initiated proceedings supplemental and an “appear

      and answer” order of the trial court was delivered by the sheriff to the

      Fredrickson Street address indicating a hearing date of September 24, 2002.

      Wroblewski did not appear at the hearing. Accordingly, the trial court ordered

      a “ten-day letter” to be served at the same address. Tr. at 2. Wroblewski

      contacted the court in response to the ten-day letter and personally appeared at

      a hearing before the trial court on October 29, 2002. During that hearing,

      Wroblewski signed an acknowledgment that the Fredrickson Street address

      was, in fact, his current address.


[5]   More than thirteen years later, on November 12, 2015, Wroblewski filed a

      motion to set aside the default judgment pursuant to Indiana Trial Rule

      60(B)(6) asserting that the trial court’s judgment was void for lack of personal

      jurisdiction. Specifically, Wroblewski claimed that service of process of the

      original notice of claim at the Fredrickson Street address was inadequate

      because he did not reside at that address. The trial court denied the motion to

      set aside on that same date. Thereafter, Wroblewski filed a motion to correct

      error. The trial court held a hearing on the motion to correct error on January

      15, 2016. Following the hearing, the trial court entered its order denying the

      motion to correct error. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016   Page 3 of 10
                                        Discussion and Decision
[6]   We begin by noting that FS Financial has not filed an appellee’s brief. Where

      an appellee fails to file a brief, we do not undertake to develop arguments on

      that party’s behalf; rather, we may reverse upon a prima facie showing of

      reversible error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima

      facie error is error “at first sight, on first appearance, or on the face [of] it.” Id.

      The “prima facie error rule” relieves this Court from the burden of

      controverting arguments advanced for reversal, a duty which remains with the

      appellee. Geico Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

      Nevertheless, we are obligated to correctly apply the law to the facts in the

      record in order to determine whether reversal is required. Id.


[7]   Wroblewski filed his motion to set aside the default judgment under Trial Rule

      60(B)(6), alleging that the trial court’s default judgment was void for lack of

      personal jurisdiction. 2 A motion made under Trial Rule 60(B) to set aside a

      judgment is addressed to the equitable discretion of the trial court. U.S. Bank,

      Nat’l Ass’n v. Miller, 44 N.E.3d 730, 738 (Ind. Ct. App. 2015), trans. denied

      (2016). “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




      2
        Indiana Trial Rule 60(B) provides that “the court may relieve a party or his legal representative from a
      judgment, including a judgment by default, for the following reasons: … (6) the judgment is void.”

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016            Page 4 of 10
      N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citation omitted). “However, whether

      personal jurisdiction exists over a defendant is a question of law that we review

      de novo.” Id. “This Court does not defer to the trial court’s legal conclusion as

      to whether personal jurisdiction exists.” Grabowski v. Waters, 901 N.E.2d 560,

      563 (Ind. Ct. App. 2009), trans. denied. Nevertheless, because personal

      jurisdiction turns on facts, the trial court’s findings of fact on the issue are

      reviewed for clear error. Id. Clear error exists where the record does not offer

      facts or inferences to support the trial court’s findings. Id. In determining

      whether the trial court’s findings of fact are clearly erroneous, we neither

      reweigh the evidence nor judge witness credibility. Huber v. Sering, 867 N.E.2d

      698, 706 (Ind. Ct. App. 2007), trans. denied (2008).


[8]   “Rule 60(B)(6) provides for relief from judgments that are ‘void.’ ” Citimortgage,

      Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012) (citation omitted). “A judgment

      issued without personal jurisdiction is void, and a court has no jurisdiction over

      a party unless that party receives notice of the proceeding.” Id. By the plain

      terms of the rule, motions to set aside under subsection (6) of Rule 60(B) do not

      require proof of a meritorious defense to the judgment being challenged. Hair,

      18 N.E.3d at 1022. Also, although motions under Rule 60(B)(6) should be filed

      within a “reasonable time,” “a judgment that is void for lack of personal

      jurisdiction may be collaterally attacked at any time and ... the ‘reasonable

      time’ limitation under Rule 60(B)(6) means no time limit.” Id. (quoting Stidham

      v. Whelchel, 698 N.E.2d 1152, 1156 (Ind.1998)).



      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016   Page 5 of 10
[9]    In moving to set aside the default judgment entered more than thirteen years

       ago, Wroblewski asserts that the trial court never obtained personal jurisdiction

       over him because service to his last known address, his mother’s home, was

       inadequate. Generally, if service of process is inadequate, the trial court does

       not acquire personal jurisdiction over a party. Munster v. Groce, 829 N.E.2d 52,

       57 (Ind. Ct. App. 2005). 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. Id. “[T]he 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.” Id. at 60. “A party

       must provide ‘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. (quoting Mullane v. Cent. Hanover

       Bank & Trust Co., 339 U.S. 306, 314 (1950)).


[10]   Moreover, whether a judgment is void turns on whether the defendant was

       served with process effective for that purpose under the Indiana Rules of

       Procedure. Anderson v. Wayne Post 64, Am. Legion Corp, 4 N.E.3d 1200, 1206

       (Ind. Ct. App. 2014), trans. denied. Our appellate review requires scrutiny of

       “the method of authorized service chosen in order to determine whether under

       the facts and circumstances of the particular case that method was best

       calculated to inform the defendant of the pending proceeding.” Morrison v. Prof’l

       Billing Servs., Inc., 559 N.E.2d 366, 368 (Ind. Ct. App. 1990). “An authorized

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016   Page 6 of 10
       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.”’ Id. (quoting Mueller v. Mueller, 259 Ind. 366, 371, 287

       N.E.2d 886, 889 (1972)). Thus, “[t]he question as to whether process was

       sufficient to permit a trial court to exercise jurisdiction over a party involves two

       issues: 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.” Grabowski, 901 N.E.2d at 563.


[11]   Indiana Trial Rule 4.1 governs service to an individual and provides in relevant

       part as follows:

               Service may be made upon an individual, or an individual acting
               in a representative capacity, by:


               (1) sending a copy of the summons and complaint by registered
               or certified mail or other public means by which a written
               acknowledgment of receipt may be requested and obtained to his
               residence, place of business or employment with return receipt
               requested and returned showing receipt of the letter; or


               (2) delivering a copy of the summons and complaint to him
               personally; or


               (3) leaving a copy of the summons and complaint at his dwelling house
               or usual place of abode; or


               (4) serving his agent as provided by rule, statute or valid
               agreement.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016   Page 7 of 10
       (Emphasis added). 3


[12]   Here, the record indicates that the method of service utilized by FS Financial

       was to have a copy of the notice of claim delivered by the sheriff to the address

       provided on the retail installment contract signed by Wroblewski on November

       30, 2000, which listed his address as 2526 Frederickson Street. 4 Wroblewski

       essentially concedes that process was served at this address but asserts that this

       is his mother’s address, and while he did live at that address when he signed the

       retail installment contract, he claims that he had not “resided at that address for

       literally several months prior to the attempted service of the documents” and

       thus he did not have actual notice of the lawsuit. Appellant’s Br. at 17. Our

       response to Wroblewski’s assertion is twofold.


[13]   First, we think that service of process at the Frederickson Street address

       complied with both the Indiana Trial Rules regarding service and the Due

       Process Clause, as it was the method best calculated to inform Wroblewski of

       the pending proceeding. This was the address specifically provided to FS

       Financial by Wroblewski, and there is no evidence that Wroblewski ever



       3
           Indiana Small Claims Rule 3(A) also applies here and is substantially the same as Trial Rule 4.1.
       4
         We note that Trial Rule 4.1(B) provides, “Whenever service is made under Clause (3) or (4) of subdivision
       (A), the person making the service also shall send by first class mail, a copy of the summons without the
       complaint to the last known address of the person being served, and this fact shall be shown upon the
       return.” Wroblewski dedicates one sentence of his appellant’s brief to baldly asserting that a copy of the
       notice was not also served by mail to the Fredrickson Street address and that this is “an additional
       jurisdictional defect.” Appellant’s Br. at 25. However, during the hearing on the motion to correct error,
       counsel for FS Financial indicated to the trial court that “follow-up mailing” of the notice was in fact sent to
       the Fredrickson Street address, see Tr. at 7, and because Wroblewski made no contrary claim during the
       hearing, and the record is otherwise silent on this issue, we will not further address this poorly developed and
       unsubstantiated assertion.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016             Page 8 of 10
       informed FS Financial of a change in address as was required by the terms of

       the installment contract. Indeed, despite claiming that he no longer lived at his

       mother’s home at the time the notice of claim was served, Wroblewski admitted

       that “technically, at the time” he did not have “another address” or new

       dwelling house or usual place of abode because he was “kind of bouncing

       around between friends and sorts.” Tr. at 11. Under the specific circumstances

       presented, we agree with the trial court that service at the Frederickson Street

       address was reasonably calculated to inform Wroblewski of the pending lawsuit

       and there was not another available method better calculated to give notice. 5


[14]   Second, and more significant, we think that the record supports the trial court’s

       finding that Wroblewski had actual notice of the pending lawsuit because he

       was, in fact, properly served. The record indicates that after Wroblewski failed

       to appear and the default judgment was obtained, FS Financial moved for

       proceedings supplemental and service of process was again made at the same

       Fredrickson Street address. This time, Wroblewski responded and later

       personally appeared at a hearing on October 29, 2002. During that hearing,

       Wroblewski signed an acknowledgement indicating that the Frederickson Street

       address was still his address. It can reasonably be inferred from this evidence

       that, despite his current claims to the contrary, Wroblewski did reside at the




       5
         Wroblewski relies heavily on our opinion in Norris v. Personal Finance, 957 N.E.2d 1002 (Ind. Ct. App.
       2011), to support his argument that service of process at his mother’s home was inadequate to confer
       personal jurisdiction on the trial court. His reliance is misplaced. We note that while Norris has some factual
       similarities to the instant case, those similarities are slight. Moreover, as we specifically noted in Norris, the
       adequacy of the method of service is an “extremely fact-sensitive” question. See id. at 1007 n.4.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016              Page 9 of 10
       Fredrickson Street address on June 26, 2002, the date the original notice of

       claim was served. The trial court did not find credible Wroblewski’s testimony

       or affidavits asserting that he did not live at 2526 Fredrickson Street at the time

       service was made, and we may not reassess that credibility on appeal. 6 We

       conclude that service of process was adequate and that the trial court obtained

       personal jurisdiction over Wroblewski.


[15]   In sum, Wroblewski has not established prima facie error in the trial court’s

       denial of his motion to set aside the default judgment. 7 Accordingly, we affirm.


[16]   Affirmed.


       Kirsch, J., and May, J., concur.




       6
           Wroblewski submitted his own affidavit and the affidavit of his mother.
       7
        Wroblewski also claims that the trial court committed reversible error in summarily denying his Trial Rule
       60(B)(6) motion to set aside without first holding a hearing. Indiana Trial Rule 60(D) provides:
                In passing upon a motion allowed by subdivision (B) of this rule, the court shall hear any
                pertinent evidence, allow new parties to be served with summons, allow discovery, grant relief
                as provided under Rule 59 or otherwise permitted by subdivision (B) of this rule.
       Here, the trial court did hold an evidentiary hearing on the motion to correct error, and thus Wroblewski was
       afforded the opportunity to present all “pertinent evidence” regarding the personal jurisdiction issue during
       that proceeding. We find no reversible error.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-SC-318 | December 12, 2016           Page 10 of 10
