      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Jul 20 2018, 5:29 am
      court except for the purpose of establishing                                  CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              and Tax Court




      ATTORNEY FOR APPELLANT
      Donald E. Morgan
      City of Indianapolis –
      Office of Corporation Counsel
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      City of Indianapolis,                                     July 20, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                49A02-1710-MI-2300
              v.                                                Appeal from the Marion Superior
                                                                Court
      Bradley T. Maynard,                                       The Honorable David J. Dreyer,
      Appellee-Defendant.                                       Judge
                                                                Trial Court Cause No.
                                                                49D10-1702-MI-6368



      Mathias, Judge.

[1]   The City of Indianapolis (“the City”) appeals the Marion County Superior

      Court’s entry of default judgment in favor of Bradley T. Maynard (“Maynard”),

      in Maynard’s action for judicial review from an administrative decision

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018              Page 1 of 13
      upholding his citation for violating a parking ordinance. On appeal, the City

      argues that Maynard never served a summons upon it when he petitioned for

      judicial review, and that the default judgment entered against it is consequently

      void for lack of personal jurisdiction. The City further argues that Maynard’s

      action seeking judicial review was untimely because he did not tender a

      summons upon the clerk within the limitations period. We agree on both

      counts, and reverse.


                                  Facts and Procedural History
[2]   On November 4, 2014, Maynard received a citation for leaving his vehicle

      parked in front of an expired meter. He challenged the citation with the Marion

      County Board of Ordinance Violations (“the Board”), which held an

      administrative hearing on the matter on January 19, 2017. The Board found

      that Maynard had violated the parking ordinance and upheld the citation.


[3]   The administrative hearing officer informed Maynard of his right to petition for

      review within thirty days, and Maynard filed a letter on January 27, 2017, in

      the Marion County Superior Court requesting a trial de novo. With his letter,

      Maynard filed a copy of the citation and entry of the adverse judgment he

      meant to challenge, but neither his letter nor the Chronological Case Summary

      (“CCS”) indicates that he filed a summons or any other documents. Appellant’s

      App. pp. 3, 6–8. In his letter, Maynard requested that the letter and attached

      documents be filed and that the unused copies be returned to him; but he did

      not request that any copy be served upon the City or give any indication that he

      had attempted to serve or notify the City himself. Id. at 6.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 2 of 13
[4]   The CCS indicates that the court scheduled a hearing, which it later cancelled

      and rescheduled twice more before eventually holding a bench trial on

      September 11, 2017, at which default judgment was entered against the City for

      failure to appear. Appellant’s App. pp. 3–4. The CCS shows that Maynard was

      served notice each time the hearing was scheduled and rescheduled; but the

      CCS contains no indication the City was served with these notices, Maynard’s

      letter, a summons, or any other document placing it on notice of the pending

      action before the entry of default judgment. Id.


[5]   The trial court, responding to our order to clarify whether any record of the

      bench trial exists, confirmed that no contemporaneous record was made, but

      explained that Maynard testified under oath that he had personally served his

      request for a trial de novo upon the City and informed an attorney representing

      the City of the trial date by phone. Appellant’s App. pp. 16–18. The trial court

      weighed Maynard’s testimony about the facts and circumstances of the traffic

      citation, determined that “Maynard had met the burden of proof,” and entered

      default judgment against the City. Id. at 18–19. Two days later, on September

      13, 2017, the City entered an appearance and filed a motion to set aside the

      default judgment pursuant to Indiana Rule of Trial Procedure 60(b), which the

      court denied on September 28. The City now appeals.


                                     Discussion and Decision
[6]   On appeal, the City denies that it was served a summons or placed on actual

      notice of the action that Maynard initiated before the entry of default judgment,

      which it argues was consequently void for want of personal jurisdiction and
      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 3 of 13
      should be vacated. Appellant’s Br. at 7–8. The City also argues that tendering a

      summons upon the trial court is a necessary element of initiating a civil action,

      and that Maynard did not file a summons within thirty days of the

      administrative decision being challenged—the period of limitations provided by

      the ordinance—or at any point since Maynard petitioned for review over a year

      ago. Id. at 10–11. As a result, the City argues, Maynard’s action for judicial

      review was not timely brought, and the trial court’s decision must not only be

      vacated, but “reversed.” Id.1 Each argument is addressed separately below.


                               I. Procedural Posture and Applicable Law

[7]   We begin by observing that our research reveals this case is only the second

      appeal from a parking ticket that has reached this court.2 As such, this is our

      first occasion to address the service of process requirements applicable to an

      appeal from an administrative decision upholding a parking ticket.


[8]   Indianapolis Revised Code (“Indianapolis Code”) section 103–79 provides that

      a party may obtain judicial review of such an administrative decision only by

      filing a verified petition for review within thirty days of the adverse

      administrative decision. The ordinance also requires a party to obtain and file a




      1
        The City also argues that the judgment should be vacated because the trial court erred in reviewing the
      administrative decision de novo, rather than applying an arbitrary and capricious standard of review.
      Appellant’s Br. at 8–9. Because we decide that the City prevails on its other two arguments, we need not
      reach this issue.
      2
        As we remarked two years ago in resolving the first such appeal: “Since the City tends to dismiss or excuse
      tickets that are protested, few cases proceed beyond the administrative level.” See Gilday v. City of Indianapolis,
      54 N.E.3d 378, 382 (Ind. Ct. App. 2016).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018                  Page 4 of 13
       certified copy of the record from the administrative hearing and provides that

       the failure to do so “or obtain an extension of time therefor shall be cause for

       dismissal of the petition for review upon motion of any party of record.” Id. at

       §§ 103–79 (b)–(d); see also Gilday v. City of Indianapolis, 54 N.E.3d 378, 382 (Ind.

       Ct. App. 2016) (discussing record filing requirement).


[9]    The ordinance does not specify any requirements for notice or service of process

       that a petitioner must follow to initiate the judicial review action. Neither does

       Indiana Code section 36-1-6-9, which permits counties and municipalities to

       adopt ordinances creating procedures for the administrative enforcement of

       some types of ordinances, including those related to parking. This statute

       provides that when a municipal administrative body issues an order imposing a

       penalty for violation of an ordinance, it may be appealed within sixty days in a

       court of record in the county where the municipality sits. Id. at § 36-1-6-9(e)–(f).


[10]   As the ordinance and this enabling statute authorizing its creation are silent

       about the proper manner of service when bringing an action for judicial review,

       we turn to the Indiana Rules of Trial Procedure for guidance. Trial Rule 1

       provides that: “Except as otherwise provided, these rules govern the procedure

       and practice in all courts of the state of Indiana in all suits of a civil nature

       whether cognizable as cases at law, in equity, or of statutory origin.” Where a

       statute prescribes special rules of procedure for administrative proceedings or

       appeals therefrom, the statutory procedure will prevail when it conflicts with

       the Trial Rules. State Bd. of Tax Comm’rs v. LeSea Broad. Corp., 511 N.E.2d 1009,

       1013 (Ind. 1987). However, where the statute does not conflict with the Trial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 5 of 13
       Rules, but is merely silent as to a particular procedure, the Trial Rules will

       supply the missing procedure. See id. (holding that Trial Rule 5(B)’s definition

       of “filing” governed where administrative procedure statute did not define term

       or prescribe method of filing notice of intent to appeal State Board of Tax

       Commissioners decision); see also Ball Stores, Inc. v. State Bd. of Tax Comm’rs, 262

       Ind. 386, 316 N.E.2d 674, 677 (1974) (finding that Trial Rule 6 supplied

       method for computing when statute of limitations began and ended where

       administrative statute was silent).3


[11]   As no administrative procedural statutes or ordinances supply any contrary

       procedure, we conclude that the service of process requirements in the Trial

       Rules apply by default, and Maynard was accordingly obligated to serve the

       City pursuant to Trial Rule 4.6(a)(4), as would any ordinary plaintiff who filed

       a civil action against a city.


                                               II. Personal Jurisdiction

[12]   The City argues that the default judgment was void for lack of personal

       jurisdiction because the City never received service of process and did not enter




       3
         In addition to the ordinance and the enabling statue, this action—an appeal authorized by the enabling
       statute (as well as the ordinance), from a decision of the Indianapolis Board of Ordinance Violations—also
       seems to have been governed by Indiana Code section 34-13-6-1, which provides that: “An appeal allowed by
       statute from any action or decision of (1) a board of a city . . . shall be filed as an original complaint against the
       city or town in the circuit or superior court of the county in which the municipality is located.” (emphasis
       added). This statute does not provide any service of process requirements either, but another section in this
       chapter provides that: “The rules of trial procedure govern in all matters of procedure not otherwise provided
       for by this chapter.” Ind. Code § 34-13-6-6.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018                     Page 6 of 13
       an appearance until after default judgment was entered against it. It also argues

       the judgment “runs afoul of due process requirements.” Appellant’s Br. at 8.


[13]   While we generally review a trial court’s denial of a motion to set aside a

       default judgment for abuse of discretion, when the appellant argues that the

       judgment was void for lack of personal jurisdiction, we review the legal

       question of whether personal jurisdiction existed de novo. Thomison v. IK Indy,

       Inc., 858 N.E.2d 1052, 1055 (Ind. Ct. App. 2006). As default judgments are

       disfavored in Indiana, any doubt as to the propriety of a default judgment is to

       be resolved in favor of the defaulted party. Swiggett Lumber Constr. Co. v. Quandt,

       806 N.E.2d 334, 336 (Ind. Ct. App. 2004) (citations omitted).


[14]   We also note that Maynard has not filed an appellee’s brief. When the appellee

       has failed to submit an answer brief we need not undertake the burden of

       developing an argument on the appellee’s behalf; and we will reverse the trial

       court’s judgment if the appellant’s brief presents a case of prima facie error.

       Norris v. Personal Finance, 957 N.E.2d 1002, 1006 (Ind. Ct. App. 2011) (citing

       Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008)). “Prima

       facie error in this context is defined as, at first sight, on first appearance, or on

       the face of it.” Id.


[15]   If service of process is inadequate, the trial court does not acquire personal

       jurisdiction over a party, and any default judgment rendered without personal

       jurisdiction is void. Yoder v. Colonial Nat. Mortg., 920 N.E.2d 798, 801 (Ind. Ct.

       App. 2010) (quoting Swiggett, 806 N.E.2d at 336). Whether service of process is


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 7 of 13
       sufficient to confer personal jurisdiction upon the trial court turns on whether

       there was compliance with the Trial Rules regarding service, and whether such

       attempts at service comported with the Due Process Clause of the Fourteenth

       Amendment. Munster v. Groce, 829 N.E.2d 52, 58 (Ind. Ct. App. 2005). Due

       process requires “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.” Yoder, 920 N.E.2d at 802 (quoting

       Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).


[16]   Once the party contesting jurisdiction challenges the lack of personal

       jurisdiction, the plaintiff must present 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.” Norris, 957 N.E.2d at 1007

       (quoting LePore v. Norwest Bank Indiana, N.A., 860 N.E.2d 632, 634 (Ind. Ct.

       App. 2007)).


[17]   In this case, Maynard should have attempted service on the City pursuant to

       Trial Rule 4.6(a), which provides, in relevant part, that: “Service upon an

       organization may be made as follows . . . (4) In the case of a local governmental

       organization, upon the executive thereof and upon the attorney for the local

       governmental organization.” Further, Trial Rule 4(B) requires that:


               Contemporaneously with the filing of the complaint or
               equivalent pleading, the person seeking service or his attorney
               shall furnish to the clerk as many copies of the complaint and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 8 of 13
                summons as are necessary. The clerk shall examine, date, sign,
                and affix his seal to the summons and thereupon issue and
                deliver the papers to the appropriate person for service.


[18]   We can find no evidence in the trial record that Maynard served the City apart

       from Maynard’s apparent testimony at the bench trial. Maynard’s letter

       requesting a trial de novo does not include a certificate of service and neither it

       nor any document filed with it contains any indication that service was

       attempted. The CCS also contains no indication that Maynard ever furnished a

       summons upon the clerk, or that a summons ever existed.


[19]   In addition, there is no evidence that Maynard attempted to serve the City

       pursuant to the Trial Rules. As there is no record from the bench trial, it is

       unclear if Maynard’s testimony included any description of how he attempted

       to serve the City.4 However, if Maynard made any such attempt, and it involved

       furnishing a summons on the clerk, as was required by Trial Rule 4(B), it was

       never recorded in the CCS.5




       4
        The trial judge only related that “Maynard testified that he had served the action upon the City.”
       Appellant’s App. p. 18.
       5
         The trial judge also recounted Maynard testifying that he had called the City and spoke to a male attorney,
       who he informed of the date set for the bench trial. Appellant’s App. p. 18. The City asserts that during the
       relevant period the one attorney who handled all parking citation cases for the City was female. Appellant’s
       Br. at 6 n.1. However, even if we were to credit Maynard’s account about the phone call, it would, at most,
       establish that the City had actual knowledge of the suit, not that it received service. While actual notice
       resulting from an attempted method of service can show that the method was reasonably calculated to inform
       and was therefore not deficient, see Reed Sign Service, Inc. v. Reid, 755 N.E.2d 690, 696 (Ind. Ct. App. 2001),
       trans. denied, actual knowledge derived from sources other than service is irrelevant to whether a manner of
       service satisfies due process. Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind. Ct. App. 1992).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018              Page 9 of 13
[20]   “It is well settled that the trial court speaks through its CCS or docket.” City of

       Indianapolis v. Hicks, 932 N.E.2d 227, 233 (Ind. Ct. App. 2010) (citing Young v.

       State, 765 N.E.2d 673, 678 n.6 (Ind. Ct. App. 2002)), trans. denied.6 In the

       instant case, there is nothing in the CCS or trial record that supports Maynard’s

       testimony that he served the City, or which contradicts the City’s assertions that

       it received no service and had no actual knowledge of the action before default

       judgment was entered.


[21]   As Maynard has not filed an appellee’s brief or advanced any contrary evidence

       or argument on appeal, we conclude that the City has established prima facia

       that it did not receive service of process. There is also no evidence that

       Maynard made any attempt to serve the City, let alone an attempt reasonably

       calculated to place the City on notice of the judicial review action. Accordingly,

       we hold that neither the Trial Rules nor the minimum requirements of due

       process were satisfied, and that the trial court did not acquire personal

       jurisdiction over the City. The default judgment against the City was therefore

       void.


                                                   III. Timeliness

[22]   The City also argues that tendering a summons upon the clerk is a necessary

       element of bringing an action for judicial review, and that Maynard’s failure to



       6
        Trial Rule 77(B) also provides that the clerk shall maintain the CCS and that: “The judge of the case shall
       cause CCS entries to be made of all judicial events. Notation of judicial events shall be made promptly, and
       shall set forth the date of the event and briefly define any documents, orders, rulings, or judgments filed or
       entered in the case.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018              Page 10 of 13
       tender a summons upon the clerk within the applicable period of limitations

       meant that his action was not timely brought. As a result, the City argues,

       Maynard forfeited his right to appeal the administrative decision.


[23]   Trial Rule 3 provides, in relevant part:


               A civil action is commenced by filing with the court a complaint
               or such equivalent pleading or document as may be specified by
               statute, by payment of the prescribed filing fee . . . and, where
               service of process is required, by furnishing to the clerk as many
               copies of the complaint and summons as are necessary.


       Citing Trial Rule 3, and Trial Rule 4(B), our supreme court has concluded that

       a civil action is not timely commenced “if the plaintiff files a complaint within

       the applicable statute of limitations but does not tender the summons to the

       clerk within that statutory period.” Ray-Hayes v. Heinamann, 760 N.E.2d 172,

       173 (Ind. 2002), aff’d in part and rev’d in part on reh’g, 768 N.E.2d 899 (Ind.

       2002).7


[24]   Subsequent decisions of this court have interpreted Ray-Hayes as setting a

       bright-line rule and have held that even relatively small deviations from Trial

       Rule 3’s filing requirements will render an action untimely. For example, in

       Smith v. Haggard, 22 N.E.3d 801, 804 (Ind. Ct. App. 2014), we held that the

       plaintiff’s action was untimely where the plaintiff had timely filed their




       7
        On rehearing, the supreme court affirmed its holding but concluded that it only applied prospectively. 768
       N.E.2d at 901.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018           Page 11 of 13
       complaint and paid the filing fee but did not tender a summons upon the clerk

       until two days after the statute of limitations expired. In Hortenberry v. Palmer,

       992 N.E.2d 921, 923 (Ind. Ct. App. 2013), trans. denied, we found that a

       plaintiff’s action was untimely where the summons and complaint were timely

       filed but the plaintiff mistakenly paid two dollars less than the required filing

       fee. We explained this result in Smith, where we noted that while the Hortenberry

       court:


                [A]cknowledged that dismissal of the plaintiff’s case “produc[ed]
                a harsh result [. . . ,]” and reiterated our preference for deciding
                cases on their merits[. . . . ,]“that preference ‘does not displace
                the legislative policy which undergirds the statute of limitations,’
                that is, to spare courts from stale claims and insure that parties
                are given reasonable notice that a claim is being asserted against
                them.’”


       Smith, 22 N.E.3d at 804 (quoting Hortenberry, 992 N.E.2d at 926) (in turn

       quoting Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993)).


[25]   As this was a case where service of process was required, Trial Rule 3 obligated

       Maynard to furnish a summons upon the clerk before his action for judicial

       review could commence. Indianapolis Code § 103–79 provides that decisions of

       administrative hearing officers may only be appealed by filing a verified petition

       for judicial review within thirty days of the adverse decision. While Maynard

       petitioned for review within this thirty-day period of limitations, we find no

       evidence in the CCS indicating that he tendered a summons upon the clerk




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 12 of 13
       within this thirty-day window or, for that matter, at any point since he

       petitioned for review over a year ago.


[26]   As such, we are bound by precedent to hold that Maynard’s judicial review

       action was untimely. If tendering a summons on the clerk two days late or

       underpaying on a filing fee by two dollars will render an action untimely under

       the bright-line rule recognized in Ray-Hayes, then this action must be considered

       untimely where no summons was tendered at all. As Indianapolis Code § 103–

       79 provides that a failure to petition for review within the allotted time will

       waive the right to appeal the administrative decision, we find that Maynard is

       time-barred from bringing another action for judicial review.


                                                 Conclusion
[27]   We conclude that defective service of process deprived the trial court of

       personal jurisdiction and its default judgment against the City must be set aside

       as void. We further conclude that Maynard’s action for judicial review was not

       timely brought and he consequently waived his right to challenge the

       administrative decision upholding his citation. We therefore reverse the trial

       court’s the entry of default judgment, and remand with instructions that the trial

       court vacate its judgment and reinstate the Board’s decision.


[28]   Reversed and remanded.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MI-2300 | July 20, 2018   Page 13 of 13
