Jeremy A. Wroblewski v. FS Financial, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 12 2016, 5:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE
Jeremy A. Wroblewski
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy A. Wroblewski, December 12, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1602-SC-318
v. Appeal from the St. Joseph
Superior Court
FS Financial, LLC, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
71D01-0206-SC-8208
Crone, Judge.
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Case Summary
[1] Jeremy A. Wroblewski, pro se, appeals the trial court’s denial of his motion to
set aside the small claims default judgment entered against him and in favor of
FS Financial, LLC. Specifically, Wroblewski contends that the trial court’s
default judgment is void for lack of personal jurisdiction and should be set
aside. Finding that the trial court indeed had personal jurisdiction over
Wroblewski, we affirm.
Facts and Procedural History
[2] In November 2000, Wroblewski entered into a retail installment contract with
Smith Auto Credit for the purchase of a 1991 Chevrolet Camaro. The contract
provided for an immediate assignment of the debt to First Step Finance.
Wroblewski listed his address as 2526 Fredrickson Street, South Bend, Indiana.
Pursuant to the terms of the contract, Wroblewski was required to notify First
Step Finance of any change of address, but he never did so.
[3] On June 24, 2002, First Step Finance (hereinafter “FS Financial” 1) filed a small
claims lawsuit against Wroblewski in the St. Joseph Superior Court alleging
nonpayment of the outstanding balance due on the contract. On June 27, 2002,
the St. Joseph County sheriff delivered a copy of notice of claim to the 2526
Fredrickson Street address. On July 31, 2002, the trial court held a hearing on
1
On June 17, 2005, First Step Finance assigned the cause of action to FS Financial, LLC, and filed a motion
to substitute plaintiff which was granted by the trial court.
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FS Financial’s claim. Wroblewski did not appear at the hearing, and the trial
court entered a default judgment against him.
[4] Thereafter, FS Financial initiated proceedings supplemental and an “appear
and answer” order of the trial court was delivered by the sheriff to the
Fredrickson Street address indicating a hearing date of September 24, 2002.
Wroblewski did not appear at the hearing. Accordingly, the trial court ordered
a “ten-day letter” to be served at the same address. Tr. at 2. Wroblewski
contacted the court in response to the ten-day letter and personally appeared at
a hearing before the trial court on October 29, 2002. During that hearing,
Wroblewski signed an acknowledgment that the Fredrickson Street address
was, in fact, his current address.
[5] More than thirteen years later, on November 12, 2015, Wroblewski filed a
motion to set aside the default judgment pursuant to Indiana Trial Rule
60(B)(6) asserting that the trial court’s judgment was void for lack of personal
jurisdiction. Specifically, Wroblewski claimed that service of process of the
original notice of claim at the Fredrickson Street address was inadequate
because he did not reside at that address. The trial court denied the motion to
set aside on that same date. Thereafter, Wroblewski filed a motion to correct
error. The trial court held a hearing on the motion to correct error on January
15, 2016. Following the hearing, the trial court entered its order denying the
motion to correct error. This appeal ensued.
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Discussion and Decision
[6] We begin by noting that FS Financial has not filed an appellee’s brief. Where
an appellee fails to file a brief, we do not undertake to develop arguments on
that party’s behalf; rather, we may reverse upon a prima facie showing of
reversible error. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). Prima
facie error is error “at first sight, on first appearance, or on the face [of] it.” Id.
The “prima facie error rule” relieves this Court from the burden of
controverting arguments advanced for reversal, a duty which remains with the
appellee. Geico Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).
Nevertheless, we are obligated to correctly apply the law to the facts in the
record in order to determine whether reversal is required. Id.
[7] Wroblewski filed his motion to set aside the default judgment under Trial Rule
60(B)(6), alleging that the trial court’s default judgment was void for lack of
personal jurisdiction. 2 A motion made under Trial Rule 60(B) to set aside a
judgment is addressed to the equitable discretion of the trial court. U.S. Bank,
Nat’l Ass’n v. Miller, 44 N.E.3d 730, 738 (Ind. Ct. App. 2015), trans. denied
(2016). “Typically, we review a trial court’s ruling on a motion to set aside a
judgment for an abuse of discretion, meaning that we must determine whether
the trial court’s ruling is clearly against the logic and effect of the facts and
inferences supporting the ruling.” Hair v. Deutsche Bank Nat’l Trust Co., 18
2
Indiana Trial Rule 60(B) provides that “the court may relieve a party or his legal representative from a
judgment, including a judgment by default, for the following reasons: … (6) the judgment is void.”
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N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citation omitted). “However, whether
personal jurisdiction exists over a defendant is a question of law that we review
de novo.” Id. “This Court does not defer to the trial court’s legal conclusion as
to whether personal jurisdiction exists.” Grabowski v. Waters, 901 N.E.2d 560,
563 (Ind. Ct. App. 2009), trans. denied. Nevertheless, because personal
jurisdiction turns on facts, the trial court’s findings of fact on the issue are
reviewed for clear error. Id. Clear error exists where the record does not offer
facts or inferences to support the trial court’s findings. Id. In determining
whether the trial court’s findings of fact are clearly erroneous, we neither
reweigh the evidence nor judge witness credibility. Huber v. Sering, 867 N.E.2d
698, 706 (Ind. Ct. App. 2007), trans. denied (2008).
[8] “Rule 60(B)(6) provides for relief from judgments that are ‘void.’ ” Citimortgage,
Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012) (citation omitted). “A judgment
issued without personal jurisdiction is void, and a court has no jurisdiction over
a party unless that party receives notice of the proceeding.” Id. By the plain
terms of the rule, motions to set aside under subsection (6) of Rule 60(B) do not
require proof of a meritorious defense to the judgment being challenged. Hair,
18 N.E.3d at 1022. Also, although motions under Rule 60(B)(6) should be filed
within a “reasonable time,” “a judgment that is void for lack of personal
jurisdiction may be collaterally attacked at any time and ... the ‘reasonable
time’ limitation under Rule 60(B)(6) means no time limit.” Id. (quoting Stidham
v. Whelchel, 698 N.E.2d 1152, 1156 (Ind.1998)).
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[9] In moving to set aside the default judgment entered more than thirteen years
ago, Wroblewski asserts that the trial court never obtained personal jurisdiction
over him because service to his last known address, his mother’s home, was
inadequate. Generally, if service of process is inadequate, the trial court does
not acquire personal jurisdiction over a party. Munster v. Groce, 829 N.E.2d 52,
57 (Ind. Ct. App. 2005). The existence of personal jurisdiction is a
constitutional requirement to rendering a valid judgment, mandated by the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution. Id. “[T]he Due Process Clause requires that[,] in order for
constructive notice of a lawsuit to be sufficient, a party must exercise due
diligence in attempting to locate a litigant’s whereabouts.” Id. at 60. “A party
must provide ‘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.’” Id. (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)).
[10] Moreover, whether a judgment is void turns on whether the defendant was
served with process effective for that purpose under the Indiana Rules of
Procedure. Anderson v. Wayne Post 64, Am. Legion Corp, 4 N.E.3d 1200, 1206
(Ind. Ct. App. 2014), trans. denied. Our appellate review requires scrutiny of
“the method of authorized service chosen in order to determine whether under
the facts and circumstances of the particular case that method was best
calculated to inform the defendant of the pending proceeding.” Morrison v. Prof’l
Billing Servs., Inc., 559 N.E.2d 366, 368 (Ind. Ct. App. 1990). “An authorized
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method is sufficient ‘if no other method better calculated to give notice is
available but is insufficient if another method obviously better calculated to give
notice is available.”’ Id. (quoting Mueller v. Mueller, 259 Ind. 366, 371, 287
N.E.2d 886, 889 (1972)). Thus, “[t]he question as to whether process was
sufficient to permit a trial court to exercise jurisdiction over a party involves two
issues: whether there was compliance with the Indiana Trial Rules regarding
service, and whether such attempts at service comported with the Due Process
Clause of the Fourteenth Amendment.” Grabowski, 901 N.E.2d at 563.
[11] Indiana Trial Rule 4.1 governs service to an individual and provides in relevant
part as follows:
Service may be made upon an individual, or an individual acting
in a representative capacity, by:
(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.
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(Emphasis added). 3
[12] Here, the record indicates that the method of service utilized by FS Financial
was to have a copy of the notice of claim delivered by the sheriff to the address
provided on the retail installment contract signed by Wroblewski on November
30, 2000, which listed his address as 2526 Frederickson Street. 4 Wroblewski
essentially concedes that process was served at this address but asserts that this
is his mother’s address, and while he did live at that address when he signed the
retail installment contract, he claims that he had not “resided at that address for
literally several months prior to the attempted service of the documents” and
thus he did not have actual notice of the lawsuit. Appellant’s Br. at 17. Our
response to Wroblewski’s assertion is twofold.
[13] First, we think that service of process at the Frederickson Street address
complied with both the Indiana Trial Rules regarding service and the Due
Process Clause, as it was the method best calculated to inform Wroblewski of
the pending proceeding. This was the address specifically provided to FS
Financial by Wroblewski, and there is no evidence that Wroblewski ever
3
Indiana Small Claims Rule 3(A) also applies here and is substantially the same as Trial Rule 4.1.
4
We note that Trial Rule 4.1(B) provides, “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.” Wroblewski dedicates one sentence of his appellant’s brief to baldly asserting that a copy of the
notice was not also served by mail to the Fredrickson Street address and that this is “an additional
jurisdictional defect.” Appellant’s Br. at 25. However, during the hearing on the motion to correct error,
counsel for FS Financial indicated to the trial court that “follow-up mailing” of the notice was in fact sent to
the Fredrickson Street address, see Tr. at 7, and because Wroblewski made no contrary claim during the
hearing, and the record is otherwise silent on this issue, we will not further address this poorly developed and
unsubstantiated assertion.
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informed FS Financial of a change in address as was required by the terms of
the installment contract. Indeed, despite claiming that he no longer lived at his
mother’s home at the time the notice of claim was served, Wroblewski admitted
that “technically, at the time” he did not have “another address” or new
dwelling house or usual place of abode because he was “kind of bouncing
around between friends and sorts.” Tr. at 11. Under the specific circumstances
presented, we agree with the trial court that service at the Frederickson Street
address was reasonably calculated to inform Wroblewski of the pending lawsuit
and there was not another available method better calculated to give notice. 5
[14] Second, and more significant, we think that the record supports the trial court’s
finding that Wroblewski had actual notice of the pending lawsuit because he
was, in fact, properly served. The record indicates that after Wroblewski failed
to appear and the default judgment was obtained, FS Financial moved for
proceedings supplemental and service of process was again made at the same
Fredrickson Street address. This time, Wroblewski responded and later
personally appeared at a hearing on October 29, 2002. During that hearing,
Wroblewski signed an acknowledgement indicating that the Frederickson Street
address was still his address. It can reasonably be inferred from this evidence
that, despite his current claims to the contrary, Wroblewski did reside at the
5
Wroblewski relies heavily on our opinion in Norris v. Personal Finance, 957 N.E.2d 1002 (Ind. Ct. App.
2011), to support his argument that service of process at his mother’s home was inadequate to confer
personal jurisdiction on the trial court. His reliance is misplaced. We note that while Norris has some factual
similarities to the instant case, those similarities are slight. Moreover, as we specifically noted in Norris, the
adequacy of the method of service is an “extremely fact-sensitive” question. See id. at 1007 n.4.
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Fredrickson Street address on June 26, 2002, the date the original notice of
claim was served. The trial court did not find credible Wroblewski’s testimony
or affidavits asserting that he did not live at 2526 Fredrickson Street at the time
service was made, and we may not reassess that credibility on appeal. 6 We
conclude that service of process was adequate and that the trial court obtained
personal jurisdiction over Wroblewski.
[15] In sum, Wroblewski has not established prima facie error in the trial court’s
denial of his motion to set aside the default judgment. 7 Accordingly, we affirm.
[16] Affirmed.
Kirsch, J., and May, J., concur.
6
Wroblewski submitted his own affidavit and the affidavit of his mother.
7
Wroblewski also claims that the trial court committed reversible error in summarily denying his Trial Rule
60(B)(6) motion to set aside without first holding a hearing. Indiana Trial Rule 60(D) provides:
In passing upon a motion allowed by subdivision (B) of this rule, the court shall hear any
pertinent evidence, allow new parties to be served with summons, allow discovery, grant relief
as provided under Rule 59 or otherwise permitted by subdivision (B) of this rule.
Here, the trial court did hold an evidentiary hearing on the motion to correct error, and thus Wroblewski was
afforded the opportunity to present all “pertinent evidence” regarding the personal jurisdiction issue during
that proceeding. We find no reversible error.
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