MEMORANDUM DECISION
                                                                 May 11 2015, 8:58 am
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.



ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
David Van Gilder                                         Samuel W. Jarjour
Andrew P. Simmons                                        Fort Wayne, Indiana
Van Gilder & Trzynka, P.C.
Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Senad Keserovic and M1                                   May 11, 2015
Transport, LLC,                                          Court of Appeals Case No.
                                                         02A04-1410-CC-498
Appellants-Defendants,
                                                         Appeal from the Allen Superior
        v.                                               Court; The Honorable Nancy
                                                         Eshcoff Boyer, Judge;
                                                         02D01-1401-CC-161
SET Transport, LLC,
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CC-498 | May 11, 2015        Page 1 of 6
[1]   Senad Keserovic (Keserovic) and M1 Transport, LLC (M1) appeal the denial of

      their motion to set aside default judgment and request for relief from judgment.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 14, 2013, SET Transport, LLC (SET) contracted with Keserovic

      and M1 to repair a 2007 Volvo 670 semi-tractor (Volvo). SET paid Keserovic

      and M1 for the repair on November 26, 2013. On December 4, 2013, on its

      first trip after the repair, the Volvo suffered a catastrophic engine failure. The

      mechanic who examined the Volvo at that time concluded the failure was due

      to a negligent repair performed by Keserovic and M1.


[4]   On December 30, 2013, SET sent a demand letter to Keserovic and M1 at 5506

      Riviera Drive, Fort Wayne, Indiana (Riviera Drive Address) via certified mail,

      return receipt requested. On January 9, 2014, Keserovic contacted SET’s

      attorney in response to the demand letter. He denied repairing the Volvo and

      indicated he would retain an attorney regarding the matter.


[5]   On January 13, 2014, SET sued Keserovic and M1. It served Keserovic and

      M1 at the Riviera Drive Address, as it was listed with the Secretary of State as

      the address of M1’s registered agent. Both summonses were marked

      “unclaimed” and returned to the Clerk of the Allen Superior Court. On

      February 18, 2014, the Clerk issued an Alias Summons directing the Sheriff to

      make personal service on Keserovic and M1 at the Riviera Drive Address. The



      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CC-498 | May 11, 2015   Page 2 of 6
      Sheriff left notice for Keserovic and M1 at the Riviera Drive Address, and

      mailed copies of the summons to the Riviera Drive Address.


[6]   On March 28, 2014, SET filed a motion for default judgment and mailed notice

      of the motion to the Riviera Drive Address. The notice was not returned. On

      May 14, 2014, the trial court granted SET’s motion for default judgment and

      scheduled a hearing regarding damages for June 16, 2014. Notice of the

      damages hearing was served to the Riviera Drive Address, and there was no

      evidence to indicate it was not delivered. After the hearing the trial court

      ordered Keserovic and M1 to pay SET $39,296.00 in damages. The order was

      sent to Keserovic and M1 at the Riviera Drive Address, and it was not returned.


[7]   On August 14, 2014, Keserovic and M1 filed a motion to set aside judgment

      and request for relief from judgment or order, arguing lack of service and

      meritorious defense to SET’s claim. SET responded and the trial court held a

      hearing on the matter on August 29, 2014. On September 29, 2014, the trial

      court denied the motion to set aside judgment and request for relief from

      judgment.


                                     Discussion and Decision
[8]   The decision whether to grant a Trial Rule 60(B) motion is left to the equitable

      discretion of the trial court, and is reviewable only for abuse of discretion.

      Shotwell v. Cliff Hagan Ribeye Franchise, 572 N.E.2d 487, 489 (Ind. 1991). An

      abuse of discretion will be found only when the trial court’s action is clearly

      erroneous, that is, against the logic and effect of the facts before it and the

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       inferences that may be drawn therefrom. In re Paternity of P.S.S., 934 N.E.2d

       737, 741 (Ind. 2010). We will not reweigh the evidence in conducting this

       review. Shotwell, 572 N.E.2d at 489.


[9]    The burden is on the movant to show relief under Rule 60(B) is both necessary

       and just. Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990). Such motions are not

       a substitute for a direct appeal. P.S.S., 934 N.E.2d at 740. A motion for relief

       from judgment may be granted due to “mistake, surprise, or excusable neglect.”

       Trial Rule 60(B)(1).


[10]   Keserovic and M1 argued they were entitled to relief under T.R. 60(B) because

       they did not receive notice of SET’s claim against them. Despite the fact the

       address to which service was sent, the Riviera Drive Address, was the registered

       address of M1 Transport, Keserovic and M1 argued notice should have been

       served at Keserovic’s home address or at the address of the location from which

       the claim arose. SET presented evidence Keserovic and M1 had received the

       demand letter that SET sent to the Riviera Drive Address one month before

       filing the claim, the Riviera Drive Address was listed with the Secretary of State

       as the business address for M1 Transport, and Keserovic was listed as the

       owner of the Riviera Drive Address.


[11]   The trial court found:

               3)      The Summons and Complaint were sent by certified mail to
                       both Defendants at 5506 Riviera Drive, Fort Wayne, Indiana,
                       46823. Both were returned to the Allen County Clerk’s Office
                       as “unclaimed” on or about February 14, 2014.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CC-498 | May 11, 2015   Page 4 of 6
        4)      An Alias Summons and Complaint were left by the Sheriff, D
                service, at 5506 Riviera Drive on February 20, 2014. On
                December 13, 2013, a Demand Letter was sent by Plaintiff to
                Keserovic individually and as the Registered Agent.
        5)      The Demand Letter sent by certified mail was received and
                signed for on December 31, 2013 at 5506 Riviera Drive, Fort
                Wayne, Indiana.
        6)      Keserovic was and is the recorded owner of 5506 Riviera Drive,
                Fort Wayne, Indiana, and 5506 Riviera Drive was and is the
                address for the Registered Agent for M1 Transport.
        7)      On March 28, 2014, Anitra Codling, Plaintiff counsel’s
                assistant, mailed the Motion for Default Judgment to Keserovic
                and M1 Transport at the 5506 Riviera Drive, Fort Wayne,
                Indiana, 46825 address via first class U.S. mail. It was not
                returned to the sender.
        8)      The Summons and Complaint were delivered to the address of
                the Registered Agent. This address was the one registered with
                the Secretary of State.
        9)      Defendants have never changed the Registered Agent
                information on file with the Secretary of State.
        10)     Defendants’ own negligence and failure to comply with the
                requirements of the Secretary of State prevented service by
                certified mail.
        11)     Defendants had constructive, if not actual, notice of the
                proceedings.
(App. at 54-55.)


Keserovic and M1 argue the trial court’s finding they had “constructive, if not

actual, notice of the proceedings,” (id.), did not satisfy due process

requirements. In support of this argument, they cite Washington v. Allison, 593

N.E.2d 1273, 1275 (Ind. Ct. App. 1992), in which we held: “Due process

requires service of notice in a manner that is reasonably calculated to inform the

defendant of the pending lawsuit. Actual notice derived from a source other

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       than service of process does not satisfy the due process requirement.”

       However, Washington supports SET’s argument it comported with the

       requirements of due process, because using the address registered with the

       Secretary of State is a “manner that is reasonably calculated to inform the

       defendant of the pending lawsuit.” See Storm Damage Specialists of America v.

       Johnson, 984 N.E.2d 660, 665-6 (Ind. Ct. App. 2013) (service at address

       registered with the Secretary of State was due process).


[12]   Keserovic and M1 also dispute the evidence SET presented to prove its good

       faith belief the Riviera Drive address was correct. Their argument is an

       invitation for us to reweigh the evidence, which we cannot do. See Shotwell, 572

       N.E.2d at 489 (appellate court cannot reweigh evidence on appeal). We affirm

       the decision of the trial court.


[13]   Affirmed.


       Barnes, J., and Pyle, J., concur.




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