MEMORANDUM DECISION Feb 17 2015, 8:22 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Jeffrey O. Meunier Steven L. Yount Carmel, Indiana Steven J. Kasyjanski Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryan Jerman and Property February 17, 2015 Insurance Services, Inc., Court of Appeals Case No. 49A02-1407-CC-453 Appellants-Defendants, Appeal from the Marion Superior v. Court. The Honorable Robert R. Altice, Jr., Judge. Cash-Pro, Inc., Cause No. 49D05-1205-CC-19658 Appellee-Plaintiff
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 1 of 8 [1] Bryan Jerman and Property Insurance Services (PIS) appeal the trial court’s
order denying Jerman’s motion to set aside a default judgment. Jerman and
PIS argue that they were never properly served with Cash-Pro’s complaint
against them and, as a result, the default judgment should have been set aside.
Finding no error, we affirm.
Facts [2] During the relevant period of time, PIS had a checking account with Old
National Bank (ONB). The signatory on the account was Jerman, and both
Jerman’s and PIS’s addresses are listed on the contract as 2021 E. 52 nd Street,
Suite 217, Indianapolis, Indiana, 46250.
[3] On May 15, 2012, Cash-Pro, as an assignee of ONB, filed a complaint against
PIS and Jerman for a checking account overdraft. The complaint alleges that
on November 29, 2005, PIS deposited a check drawn on the account of GAB
Robins North America for $60,000 (the GAB Check). ONB provided
provisional credit for the GAB Check to PIS. On May 9, 2006, the bank of
GAB demanded repayment from ONB after it received an affidavit of forgery
regarding the GAB check. As a result, on May 22, 2006, the value of the GAB
Check was debited from PIS’s account, creating an overdraft of $29,452.93.
Cash-Pro requested payment of the outstanding overdraft from PIS, but PIS
refused to pay that sum. The complaint includes counts for the overdraft,
fraudulent endorsement, corporate officer liability, and personal liability against
Jerman.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 2 of 8 [4] Cash-Pro performed a search on LexisNexis to learn Jerman’s address. That
search revealed an address of 5736 Crittenden Avenue in Indianapolis. On
May 16, 2012, the complaint and summons were served by copy service to
Jerman at that address. On May 16, 2012, the Marion County Civil Sheriff
served a copy of the complaint and summons to PIS at 2021 E. 52 nd Street. The
return of service bears a notation, “refused to sign[.]” Appellant’s App. p. 9.
[5] Neither Jerman nor PIS filed a response to Cash-Pro’s complaint. On June 20,
2012, the trial court entered a default judgment in Cash-Pro’s favor. There
were a number of proceedings supplemental hearings. After a hearing held on
August 13, 2013, the court issued an order to attorney David Kress to provide
contact information for Jerman. On September 17, 2013, the trial court
approved a rule to show cause against Jerman and PIS, which was sent to
Jerman at a Post Office Box and email address provided by Kress. Jerman
acknowledges that he received this document on October 10, 2013.
[6] On January 29, 2014, Jerman filed a motion to set aside the default judgment.
PIS did not file a motion to set aside the default judgment. The trial court held
a hearing on Jerman’s motion on May 2, 2014. In the pleadings and during the
hearing, Jerman has made the following representations:
In December 2006, he lived at 7401 North Layman Avenue in Indianapolis. Appellant’s App. p. 43. In December 2006 he moved out of Indiana. Id. He has not maintained a residence in Indiana since December 2006. Id. at 47.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 3 of 8 Either when the complaint was filed in May 2012 or in 2006, Jerman lived on 86th Street in Indianapolis. Tr. p. 7. On the date of the hearing in May 2014, Jerman lived in Franklin, Indiana. Id. at 11-12. In 2012 and in 2014 when he filed the notice of appeal, Jerman lived in Rochester, New York. Appellant’s App. p. 51-52; Notice of Appeal p. 1. Jerman admits that during the relevant period of time, he had a business at 2021 E. 52nd Street, but possibly denies that this business was PIS. Tr. p. 19-20. Jerman’s friend, Bryce Hill, owns a residence at 5736 Crittenden Avenue. While Jerman never lived there, he has stayed at that residence for periods of time. Appellant’s App. p. 48.
Having heard all of the evidence, including Jerman’s multiple versions of
residences, the trial court found that “it looks like you were served with this
Complaint[.]” Tr. p. 17. The trial court also found that PIS was served with
the complaint. Id. at 20-21. Consequently, the trial court denied Jerman’s
motion to set aside the default judgment. Jerman now appeals.
Discussion and Decision [7] In considering a trial court’s ruling on a motion to set aside a default judgment,
we afford substantial deference to the trial court’s judgment. Lapalme v. Romero,
621 N.E.2d 1102, 1104 (Ind. 1993). We will not reweigh the evidence or assess
witness credibility, and will reverse only for an abuse of discretion. Id. Jerman
sought to set aside the default judgment pursuant to Indiana Trial Rule
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 4 of 8 60(B)(6).1 As the movant, Jerman bore the burden to present a sufficient
ground for relief. Id.
[8] Initially, we note that while Jerman filed a motion to set aside the default
judgment, PIS did not. Consequently, PIS has waived any argument on appeal,
and we will not consider it.
[9] As for Jerman, the heart of his claim is that he was not properly served with the
complaint. It is well established that “[d]ue process requires service of notice in
a manner reasonably calculated to inform the defendant of the pending
lawsuit.” Washington v. Allison, 593 N.E.2d 1273, 1276 (Ind. Ct. App. 1992). In
particular, we must consider “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).
[10] Cash-Pro served the complaint by copy service at a residence on Crittenden
Avenue and by personal service at PIS’s address on East 52nd Street. As for the
residence on Crittenden Avenue, Cash-Pro located this address by performing a
search on LexisNexis. And while Jerman did not consider this address to be his
1 Although certain motions made pursuant to Trial Rule 60(B) require that the movant also establish a meritorious claim or defense, a motion made pursuant to Rule 60(B)(6) does not contain that requirement.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Feb 17 2015, 8:22 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Jeffrey O. Meunier Steven L. Yount Carmel, Indiana Steven J. Kasyjanski Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryan Jerman and Property February 17, 2015 Insurance Services, Inc., Court of Appeals Case No. 49A02-1407-CC-453 Appellants-Defendants, Appeal from the Marion Superior v. Court. The Honorable Robert R. Altice, Jr., Judge. Cash-Pro, Inc., Cause No. 49D05-1205-CC-19658 Appellee-Plaintiff
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 1 of 8 [1] Bryan Jerman and Property Insurance Services (PIS) appeal the trial court’s
order denying Jerman’s motion to set aside a default judgment. Jerman and
PIS argue that they were never properly served with Cash-Pro’s complaint
against them and, as a result, the default judgment should have been set aside.
Finding no error, we affirm.
Facts [2] During the relevant period of time, PIS had a checking account with Old
National Bank (ONB). The signatory on the account was Jerman, and both
Jerman’s and PIS’s addresses are listed on the contract as 2021 E. 52 nd Street,
Suite 217, Indianapolis, Indiana, 46250.
[3] On May 15, 2012, Cash-Pro, as an assignee of ONB, filed a complaint against
PIS and Jerman for a checking account overdraft. The complaint alleges that
on November 29, 2005, PIS deposited a check drawn on the account of GAB
Robins North America for $60,000 (the GAB Check). ONB provided
provisional credit for the GAB Check to PIS. On May 9, 2006, the bank of
GAB demanded repayment from ONB after it received an affidavit of forgery
regarding the GAB check. As a result, on May 22, 2006, the value of the GAB
Check was debited from PIS’s account, creating an overdraft of $29,452.93.
Cash-Pro requested payment of the outstanding overdraft from PIS, but PIS
refused to pay that sum. The complaint includes counts for the overdraft,
fraudulent endorsement, corporate officer liability, and personal liability against
Jerman.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 2 of 8 [4] Cash-Pro performed a search on LexisNexis to learn Jerman’s address. That
search revealed an address of 5736 Crittenden Avenue in Indianapolis. On
May 16, 2012, the complaint and summons were served by copy service to
Jerman at that address. On May 16, 2012, the Marion County Civil Sheriff
served a copy of the complaint and summons to PIS at 2021 E. 52 nd Street. The
return of service bears a notation, “refused to sign[.]” Appellant’s App. p. 9.
[5] Neither Jerman nor PIS filed a response to Cash-Pro’s complaint. On June 20,
2012, the trial court entered a default judgment in Cash-Pro’s favor. There
were a number of proceedings supplemental hearings. After a hearing held on
August 13, 2013, the court issued an order to attorney David Kress to provide
contact information for Jerman. On September 17, 2013, the trial court
approved a rule to show cause against Jerman and PIS, which was sent to
Jerman at a Post Office Box and email address provided by Kress. Jerman
acknowledges that he received this document on October 10, 2013.
[6] On January 29, 2014, Jerman filed a motion to set aside the default judgment.
PIS did not file a motion to set aside the default judgment. The trial court held
a hearing on Jerman’s motion on May 2, 2014. In the pleadings and during the
hearing, Jerman has made the following representations:
In December 2006, he lived at 7401 North Layman Avenue in Indianapolis. Appellant’s App. p. 43. In December 2006 he moved out of Indiana. Id. He has not maintained a residence in Indiana since December 2006. Id. at 47.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 3 of 8 Either when the complaint was filed in May 2012 or in 2006, Jerman lived on 86th Street in Indianapolis. Tr. p. 7. On the date of the hearing in May 2014, Jerman lived in Franklin, Indiana. Id. at 11-12. In 2012 and in 2014 when he filed the notice of appeal, Jerman lived in Rochester, New York. Appellant’s App. p. 51-52; Notice of Appeal p. 1. Jerman admits that during the relevant period of time, he had a business at 2021 E. 52nd Street, but possibly denies that this business was PIS. Tr. p. 19-20. Jerman’s friend, Bryce Hill, owns a residence at 5736 Crittenden Avenue. While Jerman never lived there, he has stayed at that residence for periods of time. Appellant’s App. p. 48.
Having heard all of the evidence, including Jerman’s multiple versions of
residences, the trial court found that “it looks like you were served with this
Complaint[.]” Tr. p. 17. The trial court also found that PIS was served with
the complaint. Id. at 20-21. Consequently, the trial court denied Jerman’s
motion to set aside the default judgment. Jerman now appeals.
Discussion and Decision [7] In considering a trial court’s ruling on a motion to set aside a default judgment,
we afford substantial deference to the trial court’s judgment. Lapalme v. Romero,
621 N.E.2d 1102, 1104 (Ind. 1993). We will not reweigh the evidence or assess
witness credibility, and will reverse only for an abuse of discretion. Id. Jerman
sought to set aside the default judgment pursuant to Indiana Trial Rule
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 4 of 8 60(B)(6).1 As the movant, Jerman bore the burden to present a sufficient
ground for relief. Id.
[8] Initially, we note that while Jerman filed a motion to set aside the default
judgment, PIS did not. Consequently, PIS has waived any argument on appeal,
and we will not consider it.
[9] As for Jerman, the heart of his claim is that he was not properly served with the
complaint. It is well established that “[d]ue process requires service of notice in
a manner reasonably calculated to inform the defendant of the pending
lawsuit.” Washington v. Allison, 593 N.E.2d 1273, 1276 (Ind. Ct. App. 1992). In
particular, we must consider “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).
[10] Cash-Pro served the complaint by copy service at a residence on Crittenden
Avenue and by personal service at PIS’s address on East 52nd Street. As for the
residence on Crittenden Avenue, Cash-Pro located this address by performing a
search on LexisNexis. And while Jerman did not consider this address to be his
1 Although certain motions made pursuant to Trial Rule 60(B) require that the movant also establish a meritorious claim or defense, a motion made pursuant to Rule 60(B)(6) does not contain that requirement. The trial court found that in addition to failing to establish that he did not receive proper service, Jerman also failed to establish a meritorious claim or defense. We need not address this issue as the motion was made pursuant to Rule 60(B)(6).
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 5 of 8 residence, he admits that he knows the owner and has stayed there for periods
of time.
[11] As for the address on East 52nd Street, the ONB contract lists this address as
both PIS’s and Jerman’s. Jerman was a signatory on the ONB account and
admittedly endorsed the check at issue in Cash-Pro’s complaint. Jerman admits
that he had a business on East 52nd Street. The Marion County Civil Sheriff
served the complaint and summons to PIS in care of Jerman, listed as its
registered agent,2 on East 52nd Street. Someone was there to accept these
documents but “refuse[d] to sign” them. Appellant’s App. p. 8-9.
[12] We find that Cash-Pro’s attempts to serve Jerman were done in a manner
reasonably calculated to inform him of the pending lawsuit. These attempts,
which continued during proceedings supplemental, were more than a “mere
gesture,” and were instead genuine endeavors to locate and serve him. In re
Adoption of L.D., 938 N.E.2d 666, 671 (Ind. 2010). Under the circumstances,
these methods were the best calculated methods to locate and serve Jerman.
[13] Having heard all of the evidence, the trial court concluded not only that Cash-
Pro’s attempts were reasonably calculated to apprise Jerman of the lawsuit, but
2 Jerman denies that he was PIS’s registered agent. In his affidavit, he claims that a page from the Indiana Secretary of State is attached to support this claim, but no such document is attached. Appellant’s App. p. 51-53. Inasmuch as we are not considering claims related to PIS in this appeal, however, resolution of this issue is unnecessary.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 6 of 8 that he actually received the complaint and summons. Tr. p. 17. In Washington,
this Court considered a similar situation:
As the exclusive judge of the weight of the evidence and the credibility of the witnesses, the trial court was not bound to credit Dr. Washington’s self-serving testimony denying notice of the pending lawsuit . . . . In addition, while Dr. Washington testified he did not receive copies of the summons, complaint, or any other pleading, order, or judgment . . . , his affidavit in support of his motion to set aside the judgment of default and the default judgment, received in evidence at the hearing on his motion, is not consistent with his testimony. . . . This conflict in Dr. Washington’s testimony . . . and the court’s discretion to disregard Dr. Washington’s self-serving assertions, support the trial court’s determination that Dr. Washington had notice of the pending lawsuit . . . . *** The trial court’s decision not to set aside the judgment of default or the default judgment does not constitute an abuse of discretion. We will not reconsider the issue of Dr. Washington’s credibility. Washington, 593 N.E.2d at 1276-77.
[14] In this case, as in Washington, the trial court was not bound to credit Jerman’s
self-serving testimony. Given the multiple versions of Jerman’s and PIS’s
addresses, as well as the murky corporate structure of PIS, the trial court did
not abuse its discretion by implicitly concluding that Jerman attempted to
obfuscate his location and responsibility and attempted—unsuccessfully—to
avoid accepting service of the complaint. We will not reconsider the trial
court’s assessment of Jerman’s credibility or its conclusion that Jerman, in fact,
received service of the complaint and summons. In other words, we find that
the trial court did not abuse its discretion in denying the motion to set aside the
default judgment. Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 7 of 8 [15] The judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CC-453 | February 17, 2015 Page 8 of 8