MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Nov 14 2017, 9:38 am

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


ATTORNEY FOR APPELLANT
Theodore J. Minch
Sovich Minch, LLP
Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Bryan Heim,                                             November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        29A02-1703-SC-611
        and                                             Appeal from the Hamilton
                                                        Superior Court
The Indianapolis Yacht Club,                            The Honorable William P.
                                                        Greenaway, Magistrate
Defendant,
                                                        Trial Court Cause No.
        v.                                              29D04-1605-SC-3981


Michael L. Wallace,
Appellee-Plaintiff



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1703-SC-611 | November 14, 2017           Page 1 of 6
                                                  Case Summary
[1]   Bryan Heim appeals the denial of his motion for relief from the judgment

      against him on Michael L. Wallace’s claim based on his missing jet ski. We

      affirm.


                                     Facts and Procedural History
[2]   In June 2016, Wallace filed a corrected notice of claim in small claims court

      against Heim and the Indianapolis Yacht Club (“IYC”), alleging that IYC

      mistakenly believed that his jet ski had been abandoned and had it removed

      from his slip. Apparently, Wallace believed that Heim was in possession of his

      jet ski. Service was effectuated by leaving a copy of the notice of claim at both

      Heim’s residence and IYC on June 21, 2016. Appellant’s App. at 5, 47, 49. 1


[3]   Attorney Theodore Minch filed a general appearance on behalf of Heim and a

      “Notice of Ineffective Service.”2 Heim and IYC filed a joint motion to continue

      the hearing on Wallace’s claim, in which Heim informed the court that he was

      not waiving any claims regarding ineffective service. The trial court granted the

      motion and rescheduled the hearing on Wallace’s claim.


[4]   In November 2016, at the scheduled hearing, Wallace appeared in person, IYC

      appeared by counsel, and Minch appeared on Heim’s behalf to “defend




      1
          We observe that nearly all of Heim’s citations to his appellant’s appendix are incorrect.
      2
        At the hearing on Heim’s motion for relief from judgment, the trial court found that Minch had not signed
      the Notice of Ineffective Service and therefore it was invalid. Tr. at 59-60.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1703-SC-611 | November 14, 2017          Page 2 of 6
      service.” Tr. at 5. Minch informed the trial court that Heim “still to date ha[d]

      not received service on this matter.” Id. at 4. The trial court consulted the

      record and concluded that Heim had received proper service on June 21, 2016.

      Id. at 6-7. Minch did not present any additional evidence or argument to

      support Heim’s ineffective service claim, nor did he move for a continuance.

      The trial court proceeded to swear in the witnesses and hear Wallace’s claim on

      the merits. Minch did not offer argument or evidence.


[5]   The trial court issued an order finding that proper service was had on all parties,

      ruling in favor of IYC on Wallace’s claim, finding that the jet ski in Heim’s

      possession belonged to Wallace, and ordering Heim to return it to Wallace

      within seven days.


[6]   Heim filed a motion for relief from judgment, arguing that the trial court did

      not have personal jurisdiction over him because service of the notice of claim

      was ineffective and that he took lawful ownership of the jet ski. In February

      2017, the trial court held a hearing, took the matter under advisement, and

      issued an order summarily denying Heim’s motion. This appeal ensued.


                                     Discussion and Decision
[7]   Heim appeals the denial of his motion for relief from judgment. Indiana Trial

      Rule 60(B) affords relief only in extraordinary circumstances that are not the

      result of the moving party’s fault or negligence. Z.S. v. J.F., 918 N.E.2d 636,

      640 (Ind. Ct. App. 2009). “Trial Rule 60(B) motions address only the

      procedural, equitable grounds justifying relief from the legal finality of a final

      Court of Appeals of Indiana | Memorandum Decision 29A02-1703-SC-611 | November 14, 2017   Page 3 of 6
      judgment, not the legal merits of the judgment.” In re Paternity of P.S.S., 934

      N.E.2d 737, 740 (Ind. 2010). The moving party carries the burden of showing

      that relief is both necessary and just. Z.S., 918 N.E.2d at 639. We generally

      review a trial court’s denial of a motion of relief from judgment for an abuse of

      discretion. Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1055 (Ind. Ct. App.

      2006). Wallace has not filed an appellee’s brief, and therefore we may reverse if

      Heim “establishes prima facie error, which is an error at first sight, on first

      appearance, or on the face of it.” Laflamme v. Goodwin, 911 N.E.2d 660, 664

      (Ind. Ct. App. 2009).


[8]   First, Heim argues that the trial court lacked personal jurisdiction over him

      because service of the notice of claim was ineffective. See Thomison, 858 N.E.2d

      at 1055 (“Ineffective service of process prohibits a trial court from having

      personal jurisdiction over a defendant.”). Personal jurisdiction is a question of

      law, which we review de novo. Id. “A plaintiff is responsible for presenting

      evidence of a court’s personal jurisdiction over the defendant, but the defendant

      ultimately bears the burden of proving the lack of personal jurisdiction by a

      preponderance of the evidence, unless that lack is apparent on the face of the

      complaint.” Id.


[9]   Specifically, Heim contends that service was ineffective because Wallace did

      not provide him with copy service by mail. See Ind. Small Claims Rule 3(A)3




      3
          Heim incorrectly cites to Indiana Trial Rule 4.1(B).

      Court of Appeals of Indiana | Memorandum Decision 29A02-1703-SC-611 | November 14, 2017   Page 4 of 6
       (“Whenever service is made by leaving a copy at defendant’s dwelling house or

       usual place of abode, the person making the service also shall send by first class

       mail a copy of the notice of claim to the last known address of the person being

       served.”). We observe that at the November 2016 hearing, Heim was

       represented by counsel and the trial court heard and considered his ineffective

       service claim. However, Heim’s trial counsel failed to argue that a copy of the

       notice of claim was not mailed to his residence. Failure to present an argument

       before the trial court waives it for direct appeal. See Dedelow v. Pucalik, 801

       N.E.2d 178, 183 (Ind. Ct. App. 2003) (“A party generally waives appellate

       review of an issue or argument unless that party presented that issue or

       argument before the trial court.”). Heim’s attempt to raise this argument in a

       motion for relief from judgment is unavailing and does not preserve it for

       appellate review. “Trial Rule 60(B) motions address only the procedural,

       equitable grounds justifying relief from a final judgment.” Paternity of P.S.S.,

       934 N.E.2d at 740. We reject his contention that the judgment against him was

       in effect a default judgment when he was in fact represented by counsel at the

       November 16 hearing and had an opportunity to be heard.


[10]   Second, Heim asserts that he is the rightful owner of the jet ski. However, he

       failed to present any evidence at the November 16 hearing to support his claim

       that he took lawful possession and ownership of the jet ski. He attempted to

       introduce such evidence with his motion for relief from judgment and at the

       February 2017 hearing. However, the trial court observed that he had the

       opportunity to present evidence at the November 2016 hearing but failed to do


       Court of Appeals of Indiana | Memorandum Decision 29A02-1703-SC-611 | November 14, 2017   Page 5 of 6
       so and had failed to move for a continuance after the court had ruled that he

       had received effective service. The trial court stated that under these

       circumstances, it appeared that Heim was not entitled to a second bite at the

       apple.


[11]   We observe that the November 2016 hearing was scheduled for the purposes of

       hearing Wallace’s claim on the merits; there is nothing in the record to suggest

       that the hearing was limited to the issue of Heim’s ineffective service claim.

       Nor does Heim contend that he was unaware that the hearing was scheduled to

       address Wallace’s claim on the merits. Again, “Trial Rule 60(B) motions

       address only the procedural, equitable grounds justifying relief from the legal

       finality of a final judgment, not the legal merits of the judgment.” Paternity of

       P.S.S., 934 N.E.2d at 740. We conclude that the trial court did not abuse its

       discretion in denying Heim’s motion for relief from judgment.


[12]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




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