FOR PUBLICATION

ATTORNEY FOR APPELLANT:                  ATTORNEY FOR APPELLEE:

SCOTT A. NORRICK                         WESLEY D. SCHROCK
Anderson, Indiana                        Anderson, Indiana


                                                                  Mar 08 2013, 9:28 am
                            IN THE
                  COURT OF APPEALS OF INDIANA

KOA PROPERTIES, LLC,                     )
                                         )
     Appellant,                          )
                                         )
            vs.                          )      No. 48A04-1207-SC-365
                                         )
LAURA MATHEISON,                         )
                                         )
     Appellee.                           )


                  APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Thomas L. Clem, Judge
                         Cause No. 48C05-1112-SC-5577



                                March 8, 2013


                        OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
      KOA Properties LLC (KOA) appeals the denial of its motion to set aside the default

judgment entered against KOA in a small claims action filed by Laura Matheison. KOA

presents the following consolidated and restated issues on appeal:

      1. Did the small claims court abuse its discretion by appointing appellate
         counsel for Matheison?

      2. Did the small claims court err in denying KOA’s motion to set aside the
         default judgment?

      We affirm.

      On December 29, 2011, Matheison filed her notice of small claim against “Todd Culp,

KOA Properties LLC aka/Woodpoint” regarding a lease she had with KOA. Appendix at 23.

Todd Culp is the owner and property manager of KOA and KOA’s business address is 729 E.

Water Street or PO Box 211 in Hartford City, Indiana. Matheison provided both of these

addresses on her notice of claim. Certified mail was returned on service of process on

January 4, 2012, indicating Culp accepted service at 729 E. Water Street.

      The small claims hearing was conducted, as scheduled, on February 3, 2012. Neither

Culp nor KOA appeared, and at the conclusion of the hearing, the court entered a default

judgment in favor of Matheison in the amount of $4300 plus court costs. The caption on the

default judgment listed only Culp as defendant.

      On March 5, 2012, Culp filed a motion to vacate the default judgment, asserting lack

of notice due to “inadvertence of a mistake.” Id. at 17. The court held a hearing on the

motion on April 23, at which Culp appeared individually and by counsel. In addition to

arguing that the certified mailing of the notice was left unopened due to neglect of an


                                            2
employee, Culp noted that he had been improperly named individually in the suit.

Recognizing that KOA is an LLC, the court indicated, “you’re not personally liable for

anything it is your company that’s liable.” Transcript at 12. Accordingly, the court vacated

the default judgment as to Culp personally but refused to set aside the judgment as to KOA

because KOA had not shown that it had a “good and valid defense.” Id. The court,

therefore, amended the original default judgment by changing the caption to KOA Properties

LLC as the defendant, instead of Todd Culp. The court also entered a separate order that

provided: “Judgment as to Todd Culp set aside as to KOA Properties LLC remains in full

force.” Appendix at 15.

       Thereafter, on May 11, KOA filed a motion to vacate default judgment in which it

argued that the small claims court lacked personal jurisdiction because KOA had never been

served with process. KOA claimed Culp was the only defendant named in the notice of

claim and was the only party served. Following another hearing on June 18, the court denied

KOA’s motion. KOA then timely filed its notice of appeal.

       In light of the pending appeal, the small claims court sua sponte set a hearing to

determine whether Matheison needed the court to appoint appellate counsel. KOA filed a

written objection thereto because Matheison had “never filed a formal request for

appointment of counsel based upon indigency” as required by Ind. Code Ann. § 34-10-1-2

(West, Westlaw current through 2012 2nd Reg. Sess.). Appendix at 32. The court conducted

the hearing on August 16, at which the court inquired of Matheison’s financial position and

ability to hire an attorney. Matheison detailed her income and expenses and indicated that


                                             3
she could not afford an attorney, though she acknowledged that she had not looked into

hiring one for the appeal. After the court detailed the dangers of proceeding pro se on

appeal, Matheison indicated that she would like to have appointed counsel if the court found

it appropriate. The court appointed counsel for Matheison for purposes of the instant appeal.

KOA appeals this appointment along with the denial of its motion to set aside the default

judgment entered against KOA.

                                                       1.

         We briefly address KOA’s argument that Matheison’s appellate brief should be

stricken because the small claims court abused its discretion by appointing appellate counsel

for her. KOA contends that the appointment was in derogation of I.C. § 34-10-1-2 1 because

Matheison made no application prior to the hearing for appointment of counsel and had made

no effort to obtain an attorney on her own.


1
    I.C. § 34-10-1-2 provides in relevant part as follows:
       (b) If the court is satisfied that a person who makes an application described in section 1
       of this chapter does not have sufficient means to prosecute or defend the action, the court:
            (1) shall admit the applicant to prosecute or defend as an indigent person; and
            (2) may, under exceptional circumstances, assign an attorney to defend or prosecute
            the cause.
       (c) The factors that a court may consider under subsection (b)(2) include the following:
            (1) The likelihood of the applicant prevailing on the merits of the applicant’s claim or
            defense.
            (2) The applicant’s ability to investigate and present the applicant’s claims or defenses
            without an attorney, given the type and complexity of the facts and legal issues in the
            action.
       (d) The court shall deny an application made under section 1 of this chapter if the court
       determines any of the following:
            (1) The applicant failed to make a diligent effort to obtain an attorney before filing the
            application.
            (2) The applicant is unlikely to prevail on the applicant’s claim or defense.
                                                           ***
Our Supreme Court has explained that this is the statutory procedure for trial courts to use to “determine
when counsel must be appointed”. Sholes v. Sholes, 760 N.E.2d 156, 160 (Ind. 2001) (emphasis supplied).

                                                       4
       We summarily reject KOA’s suggestion that our small claims courts cannot sua sponte

set a hearing to determine the propriety of appointing counsel for a small claims litigant who

is faced with the daunting task of moving from the informal small claims forum to the

complexities of appellate law. Here, the court held a hearing to address whether Matheison

had sufficient means to defend the appeal. This hearing was informal, of course, but that is

in the nature of all small claims proceedings. See Ind. Small Claims Rule 8 (addressing

informality of hearing).

       As recognized below by the small claims court, Rule 2.2 of our Code of Judicial

Conduct provides: “A judge shall uphold and apply the law, and shall perform all duties of

judicial office fairly and impartially.” Comment 4 to this rule explains further: “It is not a

violation of this Rule for a judge to make reasonable accommodations to ensure pro se

litigants the opportunity to have their matters fairly heard.” This was precisely the course

taken by the small claims court, which acted within its discretion by appointing appellate

counsel.

       Finally, we are compelled to observe the obvious fact that KOA suffered no

cognizable harm by the appointment of counsel. This equitable action by the court simply

allowed KOA’s opponent to be fairly heard on appeal.

                                              2.

       We now turn to KOA’s claim that the trial court erred by denying KOA’s motion to

set aside the default judgment. In this regard, KOA makes two arguments. First, KOA

asserts that Matheison failed to present prima facie evidence at the default hearing. Second,


                                              5
KOA claims it was never served with the small claim notice and, thus, the court did not have

personal jurisdiction over KOA.

       Indiana Small Claims Rule 10(C) provides in part: “Upon good cause shown the court

may, within one year after entering a default judgment, vacate such judgment and reschedule

the hearing of the original claim.” The party moving to set aside the judgment has the burden

to establish grounds for relief from default (i.e., “good cause”). All Season Exteriors, Inc. v.

Randle, 624 N.E.2d 484 (Ind. Ct. App. 1993). In order to obtain relief, the movant must

ordinarily establish, by affidavit or introduction of evidence at a hearing, a factual basis for

relief and a meritorious defense. Sears v. Blubaugh, 613 N.E.2d 468 (Ind. Ct. App. 1993),

trans. denied. The movant may, however, also meet its burden by showing that the default

judgment should not have been granted in the first place. Ultimately, the court’s decision

whether to set aside the default judgment is reviewed for an abuse of discretion, which will

be found only where the court’s action was clearly against the logic and effect of the

circumstances or the court misinterpreted the law. King v. United Leasing, Inc., 765 N.E.2d

1287 (Ind. Ct. App. 2002).

       With regard to KOA’s claim on appeal that the default judgment was improper

because Matheison failed to establish a prima facie case for recovery, we observe that KOA

did not raise this ground for relief below. “An appellant who presents an issue for the first

time on appeal under these circumstances waives the issue for purposes of appellate review.”

Breneman v. Slusher, 768 N.E.2d 451, 463 (Ind. Ct. App. 2002), trans. denied. Therefore,

we find the issue waived.


                                               6
       The entire thrust of KOA’s argument below was that the small claims court did not

have personal jurisdiction over KOA because KOA was not listed as a separate party

defendant on the notice of claim and KOA was not separately served with the notice. In

other words, KOA claims that “the only party served with claim notice was then Defendant

Todd Culp, and there was never a return on service for Defendant KOA Properties.”

Appellant’s Brief at 11.

       Indiana Small Claims Rule 3(A) provides in part: “A copy of the notice of claim shall

be served upon each defendant. Service may be made by sending a copy by certified mail

with return receipt requested….” Here, the notice of claim listed the defendant as: “Todd

Culp, KOA Properties LLC aka/Woodpoint”. Appendix at 23. The notice was served by

certified mail at the address listed on the notice of claim. Culp signed for the certified mail,

which was addressed to “Todd Culp (KOA Properties LLC)”. Id. at 25.

       We do not dispute the fact that Culp and KOA Properties LLC are two separate legal

entities under the law. In the context of this small claims proceeding, however, we agree

with the trial court that the notice of claim clearly included KOA as a party defendant. To be

sure, the address listed on the notice of claim and to which the certified mailing was sent was

KOA’s address, and Culp was the acknowledged owner and property manager of KOA.

       KOA relies upon Idlewine v. Madison Cnty. Bank & Trust Co., 439 N.E.2d 1198 (Ind.

Ct. App. 1982), for the proposition that separate service was required on KOA and Culp. In

that case, there was an attempt to serve a husband and wife with a single copy of a summons

directed to both. The husband received personal service of the summons and neglected to


                                               7
inform the wife that this had occurred. A default judgment was entered against both

defendants. This court set aside the judgment against the wife, stating “[o]ne copy of a joint

summons delivered to a residence where two parties to the suit reside does not constitute

proper service.” Id. at 1201. Moreover, we explained that even assuming an implied agency,

“there remains the insurmountable problem only one summons was served upon [husband]”

and, thus, he was unable to give wife a copy of the summons and complaint. Id. at 1202.

        Aside from the fact that Idlewine did not involve a small claims action, we observe

that separate service upon both legal entities in the instant case would have been sent not

only to the same address but would have been directed to the same person, Todd Culp – the

owner and property manager of KOA. See generally Ind. Trial Rule 4.6 (service upon

organizations). We cannot agree with KOA that when Culp accepted the certified mailing

addressed to “Todd Culp (KOA Properties LLC)” at KOA’s business address there was a

total failure to serve process on KOA. Unlike the wife in Idlewine, KOA was provided with

service reasonably calculated to inform KOA that a small claims action had been instituted

against it. See Idlewine v. Madison Cnty. Bank & Trust Co., 439 N.E.2d 1198; Ind. Trial

Rule 4.15(F) (savings provision for technical defects in summons or service). 2

        KOA has failed to establish that the trial court abused its discretion by denying KOA’s

motion to set aside the default judgment based upon lack of personal jurisdiction.

        Judgment affirmed.

2
   KOA asserts that even if personal jurisdiction exists, the default judgment was improper due to principles of
respondeat superior. This imprecise argument was not raised below and is waived. Moreover, the argument
ignores the fact that the judgment against Culp was set aside solely because he could not be held personally
liable in the contract dispute since his company, KOA, was an LLC.

                                                       8
NAJAM, J., and BRADFORD, J., concur.




                                       9
