Bruce R. VandeZande v. Market Ready (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 8, 2017
• Docket: 02A03-1607-CC-1661
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 08 2017, 9:25 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT James A. Hanson Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bruce R. VandeZande, March 8, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1607-CC-1661 v. Appeal from the Allen Superior Court Market Ready, The Honorable Stanley A. Levine, Appellee-Plaintiff. Judge Trial Court Cause No. 02D03-1409-CC-2161

Bailey, Judge.

Case Summary [1] Bruce R. VandeZande (“VandeZande”) incurred a debt with Market Ready, an

Ohio-registered trade name used by Daniel H. Letzer (“Letzer”). Letzer

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CC-1661 | March 8, 2017 Page 1 of 6 proceeded as plaintiff under the name Market Ready, and filed a collection suit

against VandeZande. The trial court entered summary judgment on Market

Ready’s claims, and VandeZande filed a motion under Indiana Trial Rule 60 to

set aside the judgment. The trial court denied the motion, and VandeZande

appealed.

[2] We affirm.

Issue [3] VandeZande presents one issue for our review, which we restate as whether the

trial court erred in denying VandeZande’s motion to set aside the judgment

because Letzer’s use of a trade name registered in Ohio, but not Indiana,

deprived the trial court of jurisdiction.

Facts and Procedural History [4] On September 29, 2014, Market Ready filed a complaint against VandeZande

seeking judgment on an unpaid account balance of $11,017.57. The debt had

been incurred by BVZ, Inc., an administratively-dissolved Indiana corporation

under whose name VandeZande conducted business. In his answer,

VandeZande alleged, among other facts, that Market Ready lacked capacity to

file suit because the Market Ready trade name, registered in Ohio to Letzer,

had not been registered in Indiana. VandeZande’s answer acknowledged the

debt, but alleged that Market Ready/Letzer had improperly refused tendered

payments. Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CC-1661 | March 8, 2017 Page 2 of 6 [5] On October 26, 2015, Market Ready filed a motion for summary judgment on

the claim together with designated evidentiary materials. On December 14,

2015, the trial court granted Market Ready’s motion and entered judgment

against VandeZande for $11,017.57 plus court costs.

[6] On May 16, 2016, VandeZande filed a motion to set aside the judgment under

Indiana Trial Rule 60. As grounds for relief, VandeZande restated his

contention that Market Ready was not a registered trade name for any active

business in Indiana, noted that there had nevertheless been no amendment of

the pleadings, and argued that as a result the suit was not filed by a real party in

interest under Trial Rule 17. On that basis, VandeZande argued that the

judgment against him was void, and moved the court to set aside the judgment

and dismiss the case. Market Ready responded, claimed that VandeZande’s

motion was untimely and had been defectively served upon Market Ready, and

requested that the trial court deny the motion.

[7] The trial court denied Market Ready’s motion on June 8, 2016. This appeal

ensued.

Discussion and Decision [8] VandeZande appeals the trial court’s denial of his motion to set aside the

judgment under Rule 60(B). We review a trial court’s grant or denial of such

motions under an abuse of discretion standard. Waterfield v. Waterfield, 61

N.E.3d 314, 323 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CC-1661 | March 8, 2017 Page 3 of 6 occurs when the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before it, or when the trial court errs on a matter of

law. Id.

[9] We note as well that Market Ready did not file an appellee’s brief. When an

appellee fails to file a brief, we will not undertake the burden of developing an

argument on his behalf. Geico Ins. Co v. Graham, 14 N.E.3d 854, 857 (Ind. Ct.

App. 2014). Thus, we may reverse upon a showing of prima facie error, that is,

error at first sight, on first appearance, or on the face of it. Id. Even under the

prima facie error rule, however, we are obligated to correctly apply the law to the

facts to determine whether reversal is required. Id. We will affirm if the

appellant is unable to establish prima facie error. Id.

[10] Here, VandeZande claims that Market Ready, a trade name for Letzer’s

business registered in Ohio but not in Indiana, was an improper party to pursue

the claim, and thus the trial court lacked subject matter jurisdiction necessary to

adjudicate the case. VandeZande directs us, in particular, to Miller’s Estate v. St.

Joseph County Home, 119 Ind. App. 437, 87 N.E.2d 886 (1949), and

interpretations of that case’s rule in our sister states.

[11] In Miller’s Estate, the St. Joseph County Home filed a claim seeking

reimbursement from the estate of Jerome Miller. The court observed, “St.

Joseph County Home is not a legal entity of any kind. It is merely the name of

a place. It therefore lacks the right or power to maintain in [sic] action.” Id. at

439. Moreover, the court observed that the cause of action at issue was a

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CC-1661 | March 8, 2017 Page 4 of 6 statutory one, and St. Joseph County Home was not a statutory legal entity

with standing under the applicable statute. Id. Miller’s Estate and the authorities

upon which it relied preceded our state’s implementation of notice pleading,

and addresses the problem of “a nonexistent plaintiff”—that is, an

unincorporated piece of real estate cannot be a plaintiff. Id. at 440.

[12] In Parker v. Rod Johnson Farm Serv., Inc., Parker appealed a judgment against

him in an action where Rod Johnson Farm Service, a corporation, did not

include the “Inc.” at the end of its name. 179 Ind. App. 190, 191, 384 N.E.2d

1129, 1131 (1979). Addressing then-effective Indiana corporation statutes, this

Court observed that a corporation was legally obligated to suffix an “Inc.” to its

name and that registration of trade names for business was required by statute.

Id. The court observed that the purpose of these statutory provisions was “to

protect the public from fraud and imposition by preventing a corporate entity

from concealing its identity.” Id. at 192, 1131. Noting from the record that

Parker “had no question regarding the identity of the corporate entity,” id., the

court concluded that Ron Johnson Farm Service Inc. could properly bring an

action “made in the slightly different name of its predecessor.” Id. at 193.

[13] Here, Market Ready was not registered to Letzer as a trade name in Indiana.

However, our review of the record discloses that even in his answer to the

complaint, VandeZande had no question that Market Ready was, in fact,

Letzer: “Defendant … acknowledges that the appropriate legal person to act as

Plaintiff in this action is Daniel H. Letzer, who is also the Agent/Registrant of

the Registered Trade Name ‘Market Ready.’” (App’x Vol. 2 at 11.) Unlike

Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CC-1661 | March 8, 2017 Page 5 of 6 Miller’s Estate, there is a legal entity—namely Letzer—who operates what is

apparently a sole proprietorship with an assumed name in Ohio. As in Parker,

there is no confusion or risk of fraud in a recovery inuring to Market Ready.

[14] We accordingly find no error in the trial court’s order denying VandeZande’s

motion to set aside the judgment.

[15] Affirmed.

Najam, J., and May, J., concur.

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