                                                                      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.




Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016               Page 1 of 13
                                         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.

      Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016      Page 2 of 13
[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




      Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016   Page 3 of 13
      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,


      Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016   Page 4 of 13
       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.




       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016   Page 5 of 13
       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
       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016    Page 6 of 13
                  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.

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016         Page 7 of 13
       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).

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016                       Page 8 of 13
                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.”).

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016                        Page 9 of 13
       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.

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016                      Page 10 of 13
                              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.



       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016   Page 11 of 13
[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-

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016   Page 12 of 13
       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.

       Court of Appeals of Indiana | Opinion 71A03-1602-CT-270 | September 8, 2016                Page 13 of 13
