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 estoppel, or the law of the case.
                                                                  May 20 2013, 8:27 am




ATTORNEY FOR APPELLANT:

MIRIAM HUCK
Thomasson, Thomasson, Long & Guthrie, P.C.
Columbus, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA
GINA WEST,                                         )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )     No. 03A01-1208-CC-395
                                                   )
MIDLAND CREDIT MANAGEMENT, INC.,                   )
                                                   )
       Appellee-Plaintiff.                         )


                 APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                       The Honorable Stephen R. Heimann, Judge
                            Cause No. 03C01-0703-CC-535

                                          May 20, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION




MAY, Judge
       Gina West appeals the denial of her motion to set aside a default judgment. We

reverse.

                       FACTS AND PROCEDURAL HISTORY

       In March 2007, Midland Credit Management sued West to recover a debt. It chose to

have the Sheriff serve the summons and complaint. The Process Receipt and Return

indicates West was to be served at “2429 Westline Drive, Apt. A” in Columbus, Indiana.

(App. at 7.) A notation on the Process Receipt and Return indicates it was also sent by first

class mail to that address. West apparently lived at 2429 Westline Drive, but that address is a

house and there is no “Apt. A.” The “remarks” section of the document says “Left with

Hayley Ahrmann,” id., and there was a “family a couple streets down around the corner” by

that name. (Tr. at 5.) West did not know Haley Ahrmann and was never served a copy of the

complaint.

       A default judgment was entered in June 2007, but West never received a copy. The

record does not reflect the address to where a copy was sent. West first learned in March

2012 about the proceedings against her when her father’s business received a request for

interrogatories about her. West testified she did not know what the debt is for and has never

done any business with the alleged creditor.

       The trial court declined to set aside the default judgment. At the hearing it found

service was valid and West was obliged to bring her motion within a year after the judgment.

In its written order it addressed only timeliness, finding Rule 60(B) required the motion to



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set aside the judgment be filed within a year after the judgment, and West had waited five

years.

                              DISCUSSION AND DECISION

         Any doubt of the propriety of a default judgment should be resolved in favor of the

defaulted party. Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1058 (Ind. Ct. App. 2006). In

general, we review a denial of a motion to set aside a judgment for an abuse of discretion

and, in so doing, determine whether the decision is clearly against the logic and effect of the

facts and inferences supporting the judgment. Goodson v. Carlson, 888 N.E.2d 217, 220

(Ind. Ct. App. 2008). However, whether there is personal jurisdiction over a defendant is a

question of law. Id. Thus, we review de novo a determination regarding personal

jurisdiction. Id. A plaintiff is responsible for presenting evidence there is personal

jurisdiction over the defendant, but the defendant ultimately bears the burden of proving by a

preponderance of the evidence the lack of personal jurisdiction, unless that lack is apparent

on the face of the complaint. Id. Ineffective service of process precludes a trial court from

having personal jurisdiction over a defendant, id., and a judgment entered against a defendant

over whom the trial court did not have personal jurisdiction is void. Id.

         At the outset, we note Midland did not submit an appellee’s brief. In such a case, we

need not undertake the burden of developing arguments for the appellee. Dreyer & Reinbold,

Inc. v. Leib, 811 N.E.2d 858, 860 (Ind. Ct. App. 2004). Applying a less stringent standard of

review, we may reverse the trial court if the appellant establishes prima facie error. Id.



                                               3
“Prima facie” is defined as “at first sight,” “on first appearance,” or “on the face of it.” Id.

West has demonstrated prima facie error.

       1.     Service

       Service may be made on an individual by:

       [(A)](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.
       (B) Copy Service to Be Followed With Mail. 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.

Ind. Trial Rule 4.1(emphasis in original).

       West testified the “Apartment A” to which the summons and complaint was to be

delivered and mailed did not exist and the documents were left with someone who lived

nearby but whom she did not know. Midland was represented by counsel at the hearing but

offered no evidence to the contrary. To the extent the trial court’s decision was premised on

valid service, West has shown prima facie error. See, e.g., Poteet v. Bethke, 507 N.E.2d 652,

654 (Ind. Ct. App. 1987) (service was defective when summons was sent to an address where

Poteet no longer lived).




                                               4
          2.     Timeliness

          The trial court determined Trial Rule 60(B) required West to file her motion within a

year after the default judgment, and she did not. The Order does not indicate which

subsection of T.R. 60(B) was applied, and not all subsections require the motion be brought

within a year. At the hearing, neither the trial judge nor counsel was certain whether the

motion for relief from judgment was made under T.R. 60(B)(1) or some other subsection.

          A motion under T.R. 60(B)(1) must be brought within a year, and West’s motion to set

aside the judgment explicitly cited T.R. 60(B)(1), which permits a trial court to relieve a

party from judgment based on “mistake, surprise, or excusable neglect.” But a motion like

West’s is governed by T.R. 60(B)(6). See, e.g., Swiggett Lumber Const. Co., Inc. v. Quandt,

806 N.E.2d 334, 336 (Ind. Ct. App. 2004). There, we addressed Swiggett’s argument the

default judgment was void and should be set aside pursuant to T.R. 60(B)(6) because the trial

court lacked personal jurisdiction over Swiggett due to inadequate service of process:

          While Swiggett did not specifically cite T.R. 60(B)(6) in its motion for relief
          from judgment, the motion clearly raised the issue of whether the trial court
          lacked personal jurisdiction to enter the default judgment. See, e.g.,
          Appellant’s Appendix at 24 (“[w]ithout service upon the Defendant, this Court
          has not obtained jurisdiction over this matter, and cannot properly enter a
          default judgment”).

Id. n.2

          A motion under T.R. 60(B)(6) may be brought “within a reasonable time.” West

brought her motion about a month after she discovered the default judgment. Thus, her

motion was timely. See Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012)


                                                5
(motion filed thirteen months after entry of default judgment was filed in a reasonable time

when Citimortgage never received notice of the proceeding), reh’g denied.



       West has shown prima facie error in the denial of her motion to set aside the default

judgment, as her motion did not have to be brought within a year and she proved service was

improper. We accordingly reverse.

       Reversed.

BAKER, J., and MATHIAS, J., concur.




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