First National Bank of Illinois v. Blaine O'Neill-Perez (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 13 2018, 9:19 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Scott A. Pyle Sophia J. Arshad Rubino, Ruman, Crosmer & Polen Arshad, Pangere and Warring, Dyer, Indiana LLP Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA

First National Bank of Illinois, June 13, 2018 Appellant-Defendant, Court of Appeals Case No. 45A03-1710-CT-2453 v. Appeal from the Lake Superior Court Blaine O’Neill-Perez, The Honorable John R. Pera, Appellee-Plaintiff. Judge Trial Court Cause No. 45D10-1401-CT-6

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2453 | June 13, 2018 Page 1 of 17 [1] First National Bank of Illinois (“FNBI”) appeals the trial court’s denial of its

motion to set aside default judgment. We affirm.

Facts and Procedural History [2] On January 10, 2014, Blaine O’Neill-Perez filed a complaint against FNBI and

Homewood Disposal Service, Inc. (“Homewood Disposal”) which alleged in

part that FNBI owned certain property in Dyer, Indiana; that on or about

January 13, 2012, FNBI invited the public, including him, to its property; that

as a result of FNBI’s negligence, he fell on the premises and suffered injuries;

and that his damages included but were not limited to loss of income, medical

expenses and treatment, and permanent scarring. [3] An entry in the chronological case summary (“CCS”) dated January 21, 2014,

states that summons and complaint were issued by certified mail to FNBI and

Homewood Disposal and provided tracking numbers. The entry indicates that

the summons was sent to FNBI, “C/O Thomas Cornwell,” at 54 East Road,

Chesterton, Indiana. Appellant’s Appendix Volume II at 9. An entry in the

CCS dated February 21, 2014, states “Return: 01/30/2014” and “Unsuccessful

– Unable to forward” with respect to the tracking number associated with the

summons sent by certified mail to FNBI. Id. at 8. [4] An entry in the CCS dated December 30, 2014, states: “Mail filed in Clerk’s

office on 12-30-14 Plaintiff, Blaine O’Neill-Perez files Alias Summons. (2 fs

shrf, 1-7-15).” Id. An entry in the CCS dated January 7, 2015, states “Issue

Date: 01/07/2015,” “Service: Alias Summons and Complaint,” “Method:

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Service by Foreign Sheriff Porter Co Sh,” listed FNBI, “C/O Thomas

Cornwell, 54 East Road, Chesterton, IN,” and provided a tracking number of

F000020046. Id. at 7. An entry in the CCS dated January 30, 2015, states:

Copy left at address. Copy mailed. Method: Service by Foreign Sheriff Issued: 01/07/2015 Service: Alias Summons and Complaint Served: 01/14/2015 Return: 01/23/2015 On: First National Bank Illinois Signed By: Reason: Copy left at address. Copy Mailed. Comment: Tracking #: F000020046

Id. An entry in the CCS dated February 17, 2015, states:

Copy Left / Copy Mailed Mail Returned Method: Service by Foreign Sheriff Issued: 01/07/2015 Service: Alias Summons and Complaint Served: Return: 02/06/2015 On: First National Bank Illinois Signed By: Reason: Copy Left / Copy Mailed Mail Returned Comment: Temporarily away Tracking #: F000020046

Id. at 6. [5] On May 27, 2015, O’Neill-Perez and Homewood Disposal reported that they

reached a settlement, and the court ordered the matter dismissed with prejudice Court of Appeals of Indiana | Memorandum Decision 45A03-1710-CT-2453 | June 13, 2018 Page 3 of 17

as to Homewood Disposal and that the case remained pending as to FNBI. On

May 28, 2015, O’Neill-Perez filed a praecipe for service by publication pursuant

to Ind. Trial Rule 4.13. On August 5, 2016, O’Neill-Perez filed a proof of

publication which indicated that a notice to FNBI of the complaint filed against

it on January 10, 2014, was published in the Crown Point Star newspaper on

July 14, 21, and 28, 2016. [6] On November 10, 2016, O’Neill-Perez filed a motion for default judgment

against FNBI. On November 15, 2016, the court entered a default judgment

against FNBI and scheduled a damages hearing. On January 17, 2017, the

court held a damages hearing, and on January 25, 2017, it entered a judgment

in favor of O’Neill-Perez and against FNBI in the amount of $75,000. On May

5, 2017, O’Neill-Perez filed a motion for proceedings supplemental to enforce

judgment. A CCS entry dated May 12, 2017, states: “Court grants order 5-9-17,

received 5-10-17 for the defendant, to appear in Court. Matter is hereby set for

hearing on 7-7-17 at 9 a.m. (mailed 5-12-17).” Id. at 4. [7] On June 28, 2017, FNBI filed a motion to set aside default judgment and

requested that the court set aside the November 15, 2016 default judgment and

the January 25, 2017 judgment. FNBI argued that the default judgment against

it should be deemed void, that “[t]he method of service relied upon by [O’Neill-

Perez] is publication” and that publication was not a valid method of service.

FNBI asserted that this is not an in rem action, that Trial Rule 60(B)(4)

permitted relief when service was made only by publication, and that Trial Rule

60(B)(6) required the court to set aside a default judgment obtained without

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ever obtaining valid service. Id. at 34. FNBI also stated that, on or about May

19, 2016, it became an inactive entity in the records of the Indiana Secretary of

State based upon a May 2013 merger with Old Plank Trail Community Bank,

N.A., (“Old Plank”) as shown in the documents attached to the motion as

Exhibit A. It argued that O’Neill-Perez resorting to service by publication

without setting forth the efforts made to obtain proper service through its

merged surviving entity Old Plank establishes that he did not show the diligence

required to ascertain a party’s whereabouts. [8] The documents attached to FNBI’s motion to set aside default judgment as

Exhibit A included a record from the Indiana Secretary of State for FNBI dated

June 26, 2017, identifying a principal office address in Lansing, Illinois, and

indicating “Creation Date: 02/12/2007”; “Business Status: Merged”; “Inactive

Date: 05/19/2016”; and, under the heading “Registered Agent Information,”

“Type: Individual,” “Name: Thomas C. Cornwell, Attorney at Law,” and

“Address: 54 East Road, Chesterton, IN 46304, USA.” Id. at 39. The exhibit

further included a filing history record for FNBI dated June 26, 2017, showing

that a Certificate of Admission was filed and became effective on February 12,

2007, and that Articles of Merger were filed on May 24, 2016, and became

effective on May 19, 2016. Also, the exhibit included a letter dated May 19,

2016, on letterhead stating “Wintrust,” addressed to the Indiana Secretary of

State, stating in part “[t]hank you for discussing the mechanics of correctly

reflecting with the Indiana Secretary of State the acquisition[] of [FNBI] by Old

Plank . . . effective as of May 1, 2013,” that a copy of an official certification

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issued by the Office of the Comptroller of the Currency to merge FNBI with

and into Old Plank was attached to the letter, and that “Old Plank would very

much like for the service of processes to be forwarded to its registered agent . . .

located at . . . Indianapolis, IN . . . rather than [FNBI’s] registered agent,

Thomas C. Cromwell,[1] because it hinders Old Plank’s response time.” Id. at

43. A file-stamp on this letter indicates that it was filed with the Indiana

Secretary of State on May 19, 2016. [9] O’Neill-Perez filed a response to FNBI’s motion to set aside default judgment

in which he argued, “[a]s noted in the Exhibit ‘A’ attached to [FNBI’s] Motion,

at all relevant times, [FNBI’s] registered agent was Mr. Thomas Cornwell with

an address located at 54 East Road, Chesterton, Indiana.” Id. at 46. He argued

that he attempted to serve FNBI’s registered agent by certified mail; that, as a

result of the failure of FNBI’s registered agent to claim the certified mailing, he

filed an alias summons on or about December 30, 2014; and that the Porter

County Sheriff’s Department left a copy of the complaint at the registered

agent’s address on or about January 14, 2015. He stated that, because FNBI

had not responded to his two attempts of serving the registered agent at his

address, he filed a notice to FNBI and praecipe for service for publication on

May 28, 2015. O’Neill-Perez also argued that his counsel “mailed copies of the

above pleadings to [FNBI’s] registered agent,” that “[t]he above mailings were

1 The letter states “Thomas C. Cromwell,” which appears to be a scrivener’s error as the Indiana Secretary of State’s records show the registered agent’s name as “Thomas C. Cornwell.” See Appellant’s Appendix Volume II at 43, 39.

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not returned to [his] counsel’s office,” and his counsel “was contacted by a

representative of [FNBI] after filing the praecipe for service by publication.” Id.

at 47. FNBI filed a reply arguing that, “[a]s a result of [FNBI] being an inactive

entity, its registered agent was also inactive, and, therefore the fact that

[O’Neill-Perez] mailed pleadings to Mr. Cornwell throughout the course of

these proceedings should have no bearing on this Court setting aside the default

judgment.” Id. at 54-55 (footnote omitted). [10] On September 12, 2017, the trial court held a hearing on FNBI’s motion to set

aside default judgment. FNBI’s counsel indicated that the address at which

O’Neill-Perez had attempted service was Cornwell’s home address. The court

stated that, according to O’Neill-Perez, “certified mail was sent there

[Cornwell’s address], it was unclaimed, and then the Sheriff went out there and

dropped papers off” and “then [O’Neill-Perez] followed up with corresponding

with [FNBI] at that address.” Transcript Volume 2 at 18. FNBI’s counsel

replied “[t]hat is correct. . . . there’s notations . . . that show the agent was

temporarily away and things like that. But that gets to our theory . . . that as of

May 2013, there’s no such entity as” FNBI. Id. The court asked if the

registered agent had been changed, and FNBI’s counsel stated “the formal

merger with the Indiana Secretary of State for those records was not done until

May 2016. That’s - the records reflect that” and “there were notices filed back

in May of 2013, showing that these entities merged. . . . I know these aren’t

formal notices, but there was widely publicized information that [FNBI] had

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been bought out by Wintrust and this Old Plank . . . . So, there was notice.”

Id. at 19. [11] O’Neill-Perez’s counsel argued that the public record, by FNBI’s own

admission, demonstrated that FNBI’s registered agent was, at all relevant times,

Thomas Cornwell and he was located at 54 East Road in Chesterton. He

argued that the letter to the Indiana Secretary of State from Wintrust dated May

19, 2016, makes an admission that Cornwell was the registered agent up until

that date. He argued that service was effectuated on FNBI on January 14,

2015, when the Porter County Sheriff’s Department certified it had left a copy

of the summons and complaint at the registered agent’s address and mailed a

copy of that summons to the address. When asked “[s]o, why did you do

publication,” O’Neill-Perez’s counsel answered “I was giving them another

chance. . . . I think I over served them, if anything, is my point. I could have

defaulted them previously.” Id. at 23. [12] The court stated:

The motion to set aside the default judgment is denied. There’s no evidence in front of me, whatsoever, from Mr. Cornwell that he never received notice of these proceedings, nor by affidavit or by testimony.

So, it’s up - it’s a defense burden to demonstrate to me by the greater weight of the evidence that he actually did not get these papers. The record indicates that he was served personally by the Sheriff of Porter County on January 14th of 2015 and never responded to the lawsuit.

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The August 5, 2016 publication is mere surplusage. It was not needed. [O’Neill-Perez] . . . could have moved for and gotten a default judgment long before that on the basis of the service in Porter County.

But the real problem, here, is the lack of any evidence, any testimony from any witness that [FNBI] did not get the notice or any evidence about a meritorious defense, both of which are required under the rules.

So, for those reasons, your Motion to Set Aside the Default Judgment is denied . . . .

Id. at 28. On September 22, 2017, the trial court entered a written order

providing that, for the reasons stated on the record, it denied FNBI’s motion to

set aside default judgment.

Discussion [13] The entry of a default judgment is authorized by Ind. Trial Rule 55(A), and

pursuant to Trial Rule 55(C) a judgment by default which has been entered may

be set aside by the court for the grounds and in accordance with the provisions

of Trial Rule 60(B). The decision whether to set aside a default judgment is

given substantial deference on appeal. Huntington Nat. Bank v. Car-X Assoc.

Corp., 39 N.E.3d 652, 655 (Ind. 2015) (citation omitted). Our standard of

review is generally limited to determining whether the trial court abused its

discretion. Id. An abuse of discretion may occur if the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the

court or if the court has misinterpreted the law. Id. Upon a motion for relief

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from a default judgment, the burden is on the movant to show sufficient

grounds for relief under Indiana Trial Rule 60(B). Id. [14] Ind. Trial Rule 60(B) provides in part:

(B) Mistake--Excusable neglect--Newly discovered evidence-- Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

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(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;

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(6) the judgment is void;

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(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub- paragraphs (1), (2), (3), and (4).

. . . . A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. . . .

[15] In Indiana, whether a judgment is void turns on whether the defendant was

served with process effective for that purpose under the Indiana Rules of

Procedure. Jordache White & Am. Transp., LLC v. Reimer, 61 N.E.3d 301, 304

(Ind. Ct. App. 2016), reh’g denied, trans. denied. Personal jurisdiction is a

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question of law. Id. at 305 (citation omitted). Therefore, our review is de novo,

and we do not defer to the trial court’s legal conclusion as to whether personal

jurisdiction exists. Id. (citation omitted). However, to the extent that personal

jurisdiction turns on disputed facts, the trial court’s findings of fact are reviewed

for clear error. Id. (citation omitted). If a judgment is void, the trial court

cannot enforce it and the motion under 60(B)(6) must be granted; if a judgment

is valid, the trial court cannot declare it void and the motion must be denied.

Id. at 305 (citation omitted). [16] FNBI argues that O’Neill-Perez’s attempts to locate and serve it did not meet

the diligence tests for service by publication. FBNI also asserts that excusable

neglect existed and that, at the time O’Neill-Perez elected to serve it in July

2016, FNBI was an inactive entity and that it would present a meritorious

defense that it lacked ownership of the subject property. [17] O’Neill-Perez argues that, if FNBI committed any error in reporting its

corporate changes to the Secretary of State, it should be charged with the error,

that FNBI’s lack of compliance with the law and any breakdown in

communication with its own registered agent must be borne by it alone, and

that FNBI merged with another entity and did not dissolve. He also argues that

FNBI raises the argument of excusable neglect for the first time on appeal and

the argument is waived. [18] In January 2014 and in January 2015, Ind. Code § 23-1-49-7 provided in part

that a foreign corporation authorized to transact business in Indiana must

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continuously maintain in Indiana a registered office and a registered agent who

may be an individual who resides in Indiana.2 Ind. Code § 23-1-49-8 provided

in part that a foreign corporation may change its registered office or registered

agent by delivering to the Secretary of State for filing a statement of change that

sets forth certain information regarding the current and new registered office or

agent. Ind. Code § 23-1-49-9 provided in part that a registered agent may resign

the agency appointment by delivering to the Secretary of State for filing a

statement of resignation which may include a statement that the registered

office is also discontinued. Ind. Code § 23-1-49-10(a) provided: “The registered

agent of a foreign corporation authorized to transact business in Indiana is the

corporation’s agent for service of process, notice, or demand required or

permitted by law to be served on the foreign corporation.”3 [19] Ind. Trial Rule 4.6 governs service upon organizations and provides in part:

(A) Persons to be served. Service upon an organization may be made as follows:

(1) 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.

2 See Ind. Code § 23-1-49-7 (1986) (subsequently amended by Pub. L. No. 63-2014, § 6 (eff. July 1, 2014)). Ind. Code §§ 23-1-49-1 to 23-1-49-10 were repealed by Pub. L. No. 118-2017, § 22 (eff. Jan. 1, 2018). Ind. Code §§ 23-0.5-4, which became effective January 1, 2018, govern the designation and maintenance of a registered agent by certain entities including foreign entities. 3 Ind. Code § 23-0.5-4-10(a), which became effective January 1, 2018, provides: “A represented entity may be served with any process, notice, or demand required or permitted by law by serving its registered agent.”

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(B) Manner of service. Service under subdivision (A) of this rule shall be made on the proper person in the manner provided by these rules for service upon individuals . . . .

[20] Ind. Trial Rule 4.1 governs service on individuals and, prior to January 1, 2018,

provided:

(A) In General. 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.

(B) 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

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the person being served, and this fact shall be shown upon the return.[4]

[21] Ind. Trial Rule 4.12 relates to service by a sheriff or other officer and provides

in part that, “[w]henever service is made by delivering a copy to a person

personally or by leaving a copy at his dwelling house or place of employment as

provided by Rule 4.1, summons shall be issued to and served by the sheriff, his

deputy, or some person specially or regularly appointed by the court for that

purpose.” Ind. Trial Rule 4.5 provides that, “[w]hen the person to be served is

a resident of this state who cannot be served personally or by agent in this state

and either cannot be found, has concealed his whereabouts or has left the state,

summons may be served in the manner provided by Rule 4.9 (summons in in

rem actions).” Ind. Trial Rule 4.9, in turn, permits service by publication

pursuant to Ind. Trial Rule 4.13, and Rule 4.13 governs service by publication. [22] In this case, the record reveals that, according to the Indiana Secretary of State’s

records, FNBI’s registered agent in January of 2015 was Thomas Cornwell and

his address was 54 East Road, Chesterton, Indiana, and that, as reflected in the

January 7, January 30, and February 17, 2015 CCS entries, service was effected

upon FNBI by the issuance of an alias summons at O’Neill-Perez’s request.

The Porter County Sheriff’s Department left a copy of the complaint and

4 The current version of Rule 4.1 provides, in part (B), “a copy of the summons and the complaint to the last known address . . . .” Order Amending Rules of Trial Procedure, No. 94S00-1701-MS-5 (Jul. 31, 2017) (substituting the word “and,” emphasized above, for the word “without” in previous version of part (B)).

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summons at 54 East Road, Chesterton, Indiana, on January 14, 2015, and

mailing of a copy of the summons to the address. See Appellant’s Appendix

Volume II at 6-7 (setting forth CCS entries, including January 30, 2015 entry

stating “Served: 01/14/2015” and “Copy left at address. Copy Mailed”). [23] FNBI’s registered agent, Cornwell, was its agent for service of process, see Ind.

Code § 23-1-49-10(a) (repealed eff. Jan. 1, 2018) (a foreign corporation’s

registered agent “is the corporation’s agent for service of process”), and FNBI

was required to maintain a registered office and registered agent in Indiana. See

Ind. Code § 23-1-49-7 (repealed eff. Jan. 1, 2018). FNBI does not argue that the

address of 54 East Road, Chesterton, Indiana, was not the correct address or

last known address for Cornwell as stated in the Indiana Secretary of State’s

records, that the Porter County Sheriff did not leave a copy of the summons

and complaint at 54 East Road, Chesterton, Indiana, in January of 2015, or that

a copy of the summons was not also mailed to the address as contemplated by

Rules 4.6 and 4.1. Further, FNBI does not argue that, prior to January 14,

2015, it had changed its registered office or registered agent by delivering a

statement of change to the Indiana Secretary of State or that Cornwell had

resigned as its registered agent. We also observe that, while it may have

merged with Old Plank in May of 2013, FNBI did not deliver any statement of

change to the Indiana Secretary of State for filing to modify its registered agent

designation until May of 2016, well after service had been made upon Cornwell

in January of 2015. See Appellant’s Appendix Volume II at 41-42 (showing

articles of merger were filed on May 24, 2016, and were effective on May 19,

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2016, and certificate of merger dated May 24, 2016); id. at 43 (letter to the

Indiana Secretary of State, file-stamped on May 19, 2016, requesting its service

of processes to be forwarded to its registered agent rather than FNBI’s

registered agent, Thomas C. Cornwell). [24] Based upon the record, we cannot say that FNBI has met its burden of showing

that service of process was not effected upon it consistent with Trial Rules 4.6

and 4.1. Accordingly, FNBI has not established that the trial court’s entry of

default judgment was void and that it was entitled to relief under Ind. Trial

Rule 60(B)(6). Further, as service was made upon FNBI’s agent for service of

process in accordance with Trial Rule 4.1(A)(3), O’Neill-Perez was not required

to also serve FNBI by publication, and Trial Rule 60(B)(4) is not applicable. See

Wells Fargo Bank, N.A. v. Dechert, 12 N.E.3d 262, 267 (Ind. Ct. App. 2014)

(observing that the defendant’s predecessor, and thus the defendant, was served

with notice of the suit by mail, not by publication, and was thus not entitled to

relief under Rule 60(B)(4)); see also Reimer, 61 N.E.3d at 307 (“Indeed, the fact

that, in an abundance of caution, Reimer took the additional step of serving

White through the Secretary of State is irrelevant.”). Also, to the extent FNBI

did not waive any argument under Trial Rule 60(B)(1) or (8),5 we find that any

failure by FNBI to file a statement of change with the Indiana Secretary of State

5 In its motion to set aside, after arguing that it did not receive proper service of process, FNBI states “FNBI also has meritorious defenses as to [O’Neill-Perez’s] claims thereby further warranting a set aside of the default judgment under T.R. 60(B)(1) and 60(B)(8). However, the issue of meritorious defenses need not be decided here as [O’Neill-Perez’s] method of service as to FNBI is improper.” Appellant’s Appendix Volume II at 37.

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to modify its registered agent designation or any breakdown in communication

between FNBI and Cornwell as its registered agent of record does not constitute

a mistake, surprise, excusable neglect, or any other reason justifying relief from

the entry of default judgment under these circumstances. See Precision Erecting,

Inc. v. Wokurka, 638 N.E.2d 472, 474 (Ind. Ct. App. 1994) (holding that the risk

of a breakdown in communication between a defendant and its registered agent

is one that should be borne by the defendant, not a third-party complainant, and

that the defendant was not entitled to relief from default judgment under Trial

Rule 60(B)(1) or (8)), trans. denied.

Conclusion [25] For the foregoing reasons, we affirm the trial court’s denial of FNBI’s motion to

set aside default judgment. [26] Affirmed.

Bailey, J., and Crone, J., concur.

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