FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAMES D. WITCHGER LEONARDO D. ROBINSON
ASHLEY A. HOWELL F. RONALDS WALKER
Rocap Witchger, LLP Plews Shadley Racher & Braun
Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
SWIGGETT LUMBER CONSTRUCTION )
CO., INC., )
)
Appellant-Defendant, )
)
vs. ) No. 32A04-0310-CV-532
)
BARBARA QUANDT and GREGG PAGE, )
)
Appellees-Plaintiffs. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Robert Freese, Judge
Cause No. 32D01-0301-CT-5
April 20, 2004
Morequity, Inc. v. Keybank, N.A., 773 N.E.2d 308, 313 (Ind. Ct. App. 2002)
(citations omitted), trans. denied. While the decision to set aside a default
judgment is largely the province of the trial court, Indiana disfavors default judgments
and prefers resolution of a cause on its merits. See King v.
United Leasing, Inc., 765 N.E.2d 1287 (Ind. Ct. App. 2002). Therefore, any
doubt as to the propriety of a default judgment is to be resolved
in favor of the defaulted party. Boczar v. Reuben, 742 N.E.2d 1010,
1016 (Ind. Ct. App. 2001).
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. King v. United Leasing, Inc., 765 N.E.2d at 1290. Service
upon an organization is governed by Indiana Trial Rule 4.6, which provides in
relevant part:
Persons to be served. Service upon an organization may be made as
follows:
In the case of a domestic or foreign organization upon an executive officer
thereof, or if there is an agent appointed or deemed by law to
have been appointed to receive service, then upon such agent.
Quandt acknowledges that by choosing to serve Hall as the agent for service
of process, Indiana Trial Rule 4.1 was implicated. T.R. 4.1 governs service
upon individuals and provides in pertinent part as follows:
In General. Service may be made upon an individual, or an individual
acting in a representative capacity, by:
sending a copy of the summons and complaint by registered or certified mail
or other public means by which 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
delivering a copy of the summons and complaint to him personally; or
leaving a copy of the summons and complaint at his dwelling house or
usual place of abode; or
serving his agent as provided by rule, statute or valid agreement.
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.
On appeal, Quandt does not directly dispute Swiggetts assertion that, at best, Hall
was served by copy service and that said copy service was not followed
by mailing the summons to Hallss last known address as required by T.R.
4.1(B). Rather, Quandt relies on the saving language, Appellees Brief at 4,
in Indiana Trial Rule 4.15(F), which provides that no summons or service of
process shall be set aside or adjudged insufficient if either is reasonably calculated
to inform the person to be served that an action has been instituted
against him, the name of the court, and the time within which he
is required to respond. T.R. 4.15(F). In sum, Quandt contends that
copy service at the business to an unidentified employee of Swiggett, who represented
that he understood the nature of the summons and agreed to deliver the
documents to Hall, constituted service reasonably calculated to inform Hall that an action
had been instituted against Swiggett. We cannot agree.
When serving an individual by copy service, T.R. 4.1(B) states that the person
making such service shall mail a copy of the summons to the defendants
last known address. Id.; see also Barrow v. Pennington, 700 N.E.2d 477,
479 (Ind. Ct. App. 1998) (Indiana Trial Rule 4.1(B) is unambiguously mandatory).
In Barrow v. Pennington, we confronted the precise issue presented in this case,
that is: whether T.R. 4.1(B) is mandatory or whether T.R. 4.15(F) will
cure noncompliance with the same. Barrow v. Pennington, 700 N.E.2d at 479.
In the context of a default judgment, we held that compliance with
T.R. 4.1(B), itself, is a jurisdictional prerequisite to obtaining personal jurisdiction and that
T.R. 4.15(F) will not excuse noncompliance with trial rule 4.1(B). Id.
See footnote
We explained:
We have previously concluded that failure to technically comply with the trial rules
will not defeat a trial courts jurisdiction so long as a party substantially
complies with the trial rules. In all such cases, however, there was
some attempt to comply with all of the relevant and mandatory trial rules.
Accordingly, in
Idlewine, we also stated that T.R. 4.15(F) will not cure
defective service of process where no person authorized by the rules was actually
served.
Barrow v. Pennington, 700 N.E.2d at 479 (citations omitted); see also LaPalme v.
Romero, 621 N.E.2d 1102, 1106 (Ind. 1993) (Indiana case law holds that T.R.
4.15(F) only cures technical defects in the service of process, not the total
failure to serve process); Volunteers of Am. v. Premier Auto Acceptance Corp., 755
N.E.2d 656, 660 (Ind. Ct. App. 2001) ([T.R. 4.15(F)] is intended to reduce
the number of challenges to service of process because of technical defects in
the service); Kelly v. Bennett, 732 N.E.2d 859 (Ind. Ct. App. 2000) (under
these circumstances, Trial Rule 4.15(F) does not operate to render service sufficient despite
noncompliance with Trial Rule 4.1).
Here, we are not confronted with merely a technical defect in service of
process, as there was no attempt whatsoever to comply with T.R. 4.1(B).
See footnote
Furthermore, the rules do not contemplate that an unidentified employee of unknown position
within a corporation is authorized to accept service of process for the corporations
registered agent. Because service of process was inadequate in the instant case,
the trial court did not have personal jurisdiction over Swiggett, and the default
judgment entered against Swiggett is void. Therefore, we reverse the judgment of
the trial court, set aside the default judgment against Swiggett, and remand for
further proceedings consistent with this opinion.
Judgment reversed and remanded.
KIRSCH, C.J., and BARNES, J., concur.