Menard, Inc. v. Reba Lane (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 5, 2017
• Docket: 45A03-1606-CT-1283
• Status: Published

Opinion

MEMORANDUM DECISION

ON REHEARING Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 05 2017, 8:29 am

court except for the purpose of CLERK Indiana Supreme Court establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce P. Clark Duke T. Escue Bruce P. Clark & Associates Walter J. Alvarez Saint John, Indiana Walter J. Alvarez, P.C. Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA

Menard, Inc., May 5, 2017 Appellant-Defendant, Court of Appeals Case No. 45A03-1606-CT-1283 v. Appeal from the Lake County Reba Lane, Circuit Court Appellee-Plaintiff The Honorable George Paras, Judge; The Honorable Robert Vann, Magistrate Trial Court Cause No. 45C01-1308-CT-128

May, Judge.

Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017 Page 1 of 3 [1] Menard, Inc. requests rehearing of our decision in Menard, Inc. v. Lane, 68

N.E.3d 1106 (Ind. Ct. App. 2017), arguing our court erred when it reviewed the

trial court’s decision to deny Menard’s motion to set aside judgment under the

abuse of discretion standard of review because “[a]lthough appropriate for the

other aspects of the Appeal, this was not the appropriate review for the issues

surrounding sufficiency of service.” (Br. of Appellant on Rehearing at 13.)

Menard is correct the language does not accurately reflect the standard of

review, and we grant rehearing to revise language we used in the opinion.

[2] In Menard, we began our analysis of the trial court’s denial of Menard’s Trial

Rule 60(B) motion by stating we “review a trial court’s denial of a motion to set

aside judgment for an abuse of discretion.” Menard, 68 N.E.3d at 1109 (quoting

LePore v. Norwest Bank Indiana, N.A., 711 N.E.2d 1259, 1264 (Ind. 1999)). As

Menard had requested relief from the default judgment in favor of Lane based

first on Menard’s allegation the judgment was void as a result of inadequate

service of process, we then narrowed our focus to Trial Rule 60(B)(6), which

allows relief from a default judgment if the challenged judgment is void for lack

of service of process. In that instance, a “trial court has no discretion on how to

rule on a Trial Rule 60(B)(6) motion once a judgment is determined to be either

void or valid.” Id. at 1109 (quoting Anderson v. Wayne Post 64, 4 N.E.3d 1200,

1205 (Ind. Ct. App. 2014), trans. denied).

[3] After applying the trial rules that control service of process to the facts of this

case and distinguishing the cases cited by Menard, we concluded our analysis of

the issue by writing: Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017 Page 2 of 3 Sergeant Coubal followed the letter of Trial Rule 4.1(B) as evidenced by the copy of the summons with the stamp indicating he delivered the summons and complaint, and the return receipt for the copy of the summons and complaint sent by certified mail; thus, we cannot say the trial court abused its discretion when it denied Menard’s motion to set aside default judgment based on the adequacy of Lane’s service of process.

Id. at 1101.

[4] As Menard argues on rehearing, we should not have used the phrase “abuse of

discretion” in that context, because “if a judgment is valid, the trial court

cannot declare it void and the motion [under Trial Rule 60(B)(6)] must be

denied.” Anderson v. Wayne Post 64, 4 N.E.3d 1200, 1205 (Ind. Ct. App. 2014),

trans. denied. Instead, the end of that paragraph should have read:

Sergeant Coubal followed the letter of Trial Rule 4.1(B), as evidenced by the copy of the summons with the stamp indicating he delivered the summons and complaint and the return receipt for the copy of the summons and complaint sent by certified mail. Thus, Lane’s service of process was adequate and the default judgment is valid. The trial court correctly denied Menard’s motion to set aside default judgment based on the adequacy of Lane’s service of process.

[5] We grant rehearing to revise only that language and affirm the original result in

all other respects.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017 Page 3 of 3