Michael Hale v. Ozark Capital Corporation (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 13 2019, 9:06 am

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 Michael Hale Ellettsville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Hale, February 13, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CC-1922 v. Appeal from the Monroe Circuit Court Ozark Capital Corporation, The Honorable Frances G. Hill, Appellee-Plaintiff. Judge Trial Court Cause No. 53C06-0512-CC-2272

Najam, Judge.

Statement of the Case [1] Michael Hale appeals the trial court’s denial of his Indiana Trial Rule 60(B)

motion for relief from judgment. Hale raises a single issue for our review,

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which we restate as whether the trial court erred when it denied his motion for

relief from judgment. [2] We affirm.

Facts and Procedural History [3] On December 7, 2005, Ozark Capital Corporation (“Ozark”) filed a complaint

against Hale in which Ozark alleged that Hale had failed to make payments

toward a credit card debt. The sheriff delivered a copy of the complaint to

Hale’s address. But Hale did not respond to the complaint. Accordingly, on

January 30, 2006, Ozark filed a motion for default judgment against Hale. On

February 3, the trial court granted Ozark’s motion and entered judgment

against Hale in the amount of $14,882.22. [4] Between the dates of September 18, 2006, and March 6, 2013, the trial court

held four hearings in proceedings supplemental for a determination of Hale’s

wages, assets, profits, and other nonexempt property that could have been

applied toward Hale’s debt. Hale appeared in person at three of the four

hearings.1 At the March 6, 2013, hearing, Hale agreed in writing to a voluntary

garnishment of his wages. Then, on January 5, 2015, Hale filed

correspondence with the court in which he disputed both that he owed the debt

and the amount of the debt. Thereafter, the trial court held three more hearings

1 The CCS entry for the September 18, 2006, hearing does not provide any information on whether Hale appeared at that hearing.

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between March 3, 2015, and March 13, 2018. Hale appeared at all three of

those hearings. [5] On April 16, 2018, some twelve years after the entry of judgment, Hale, pro se,

filed a motion to set aside the default judgment pursuant to Indiana Trial Rule

60(B)(6). In that motion, Hale asserted that the trial court lacked personal

jurisdiction over him because he had not been served with a copy of Ozark’s

complaint. Hale did not dispute the fact that the sheriff had delivered a copy of

the complaint to his correct address. Rather, Hale contended that his then wife

had received the copy of Ozark’s complaint and that she had concealed the

complaint. Hale further asserted that he did not become aware of the complaint

until March 2006, which was after the trial court had entered the default

judgment against him. Accordingly, Hale alleged that the trial court’s default

judgment against him was void. [6] The trial court denied Hale’s motion. Hale then filed a motion to correct error

in which he again asserted that the default judgment against him was void

because the trial court lacked personal jurisdiction over him due to insufficient

service of process. The court denied that motion, too.2 This appeal ensued.

2 Hale did not provide a copy of the trial court’s order denying his motion for relief from judgment, but he included in the record on appeal a copy of the trial court’s order denying his motion to correct error.

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Discussion and Decision [7] Hale contends that the trial court lacked jurisdiction to enter the default

judgment against him due to insufficient service of process. Initially, we note

that Ozark has not filed an appellee’s brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations

omitted). [8] On appeal, Hale contends that, because the trial court lacked personal

jurisdiction over him due to insufficient service of process, the default judgment

is void under Indiana Trial Rule 60(B)(6). Indiana Trial Rule 60(B)(6) provides

that a court may relieve a party from a default judgment when the judgment is

void. “In Indiana, ‘whether the judgment is void turns on whether the

defendant was served with process effective for that purpose under the Ind[iana]

Rules of Procedure.’” Anderson v. Wayne Post 64, 4 N.E.3d 1200, 1206 (Ind. Ct.

App. 2014) (quoting Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind. App. 144,

150, 338 N.E.2d 670, 675 (1975)), trans. denied. [9] This Court has previously set out our standard of review as follows:

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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 effects of the facts and inferences supporting the ruling. Yoder v. Colonial Nat’l Mortg., 920 N.E.2d 798, 800-01 (Ind. Ct. App. 2010). However, whether personal jurisdiction exists over a defendant is a question of law that we review de novo. Id. at 801. A judgment entered where there has been insufficient service of process is void for want of personal jurisdiction. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 759 (Ind. 2014).

Hair v. Deutsche Bank Nat’l Trust Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014).

Thus, we must determine whether Hale has shown prima facie that the trial

court erred as a matter of law when it denied his motion to correct error. [10] Hale contends that the trial court lacked personal jurisdiction over him because

he did not receive effective service of process. Specifically, Hale contends that

he did not receive a copy of the complaint but, rather, that his then wife

received the complaint and that he did not know about the complaint until after

the trial court had already entered the default judgment against him.

Accordingly, Hale contends that the default judgment is void and that the trial

court erred when it denied his motion for relief from judgment. [11] But we hold that Hale has waived his claim of lack of personal jurisdiction. It is

well settled that “[a] defendant can waive the lack of personal jurisdiction and

submit himself to the jurisdiction of the court if he responds or appears and

does not contest the lack of jurisdiction.” Harris v. Harris, 922 N.E.2d 626, 623

(Ind. Ct. App. 2010). Here, the facts show that Hale appeared before the trial

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court for at least six hearings in proceedings supplemental between September

18, 2006, and March 13, 2018. Nothing in the record indicates that Hale

challenged the trial court’s personal jurisdiction over him when he appeared

before the trial court at any of those hearings. Indeed, at one hearing, Hale

agreed in writing to a voluntary garnishment of his wages. Because Hale

appeared before the court on at least six occasions and did not contest personal

jurisdiction, we conclude that Hale has waived any such challenge.3 Given that

Hale has waived any personal jurisdictional claim that he might have had by

submitting himself to the jurisdiction of the trial court, we cannot say that the

trial court erred as a matter of law when it denied Hale’s motion for relief from

judgment. [12] Further, in his motion for relief from judgment, Hale asserted that Ozark’s

complaint “should have been dismissed summarily” because Ozark had failed

to comply with Indiana Trial Rule 9.2(A) when it filed its complaint without

including an affidavit of debt. Appellant’s App. Vol. II at 39. The trial court

also denied Hale’s motion on that ground. While Hale mentions the fact that

Ozark’s complaint lacked an affidavit of debt in his Statement of the Facts,

Hale does not make an argument in his brief on appeal that the trial court erred

when it denied his motion for relief from judgment because Ozark had failed to

comply with the Trial Rules. Generally, the failure to make a cogent argument

3 If Hale believed that the trial court lacked jurisdiction over him because his wife received the copy of the complaint that the sheriff had left at his address before he did, Hale could have raised that claim the first time he appeared before the trial court.

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results in the waiver of that issue. See Ind. Appellate Rule 46(A)(8)(a). Waiver

notwithstanding, Hale has not established prima facie error on that issue. [13] We acknowledge that Hale is correct that Ozark was required to attach an

affidavit of debt to its complaint. See Ind. Trial Rule 9.2(A). But Hale is

incorrect that Ozark’s failure to include the affidavit of debt requires the

dismissal of Ozark’s complaint. Indiana Trial Rule 9.2(F) provides that

noncompliance with the provisions of the rule requiring an affidavit of debt

may be raised by the first responsive pleading or prior motion of a party. “The

court, in its sound discretion, may order compliance, the reasons for non-

compliance to be added to the pleadings, or allow the action to continue

without further proceeding.” T.R. 9.2(F). Accordingly, had Hale timely raised

the issue of Ozark’s failure to include an affidavit of debt, 4 the trial court could

have ordered Ozark to comply with Trial Rule 9.2(A) or have allowed the

action to continue without any additional pleadings. As such, Ozark’s failure

to comply with the pleading requirements of Trial Rule 9.2(A) does not warrant

dismissal of the complaint. See Arflack v. Town of Chandler, 27 N.E.3d 297, 304-

05 (Ind. Ct. App. 2015). Hale therefore has not demonstrated that the trial

court erred when it denied his motion for relief from judgment under Indiana

Trial Rule 60(B). We affirm the trial court.

4 It should also be noted that Hale did not raise the issue regarding Ozark’s failure to include an affidavit of debt until he filed his motion for relief from judgment on April 17, 2018, which was over twelve years after the court filed the default judgment against Hale and after Hale had appeared before the trial court on at least six occasions.

Court of Appeals of Indiana | Memorandum Decision 18A-CC-1922 | February 13, 2019 Page 7 of 8 [14] Affirmed.

Pyle, J. and Altice, J., concur.

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