Jerome Masakowski, Appellant-Defendant v. 111 LLC (2024)

MEMORANDUM DECISION

Case Summary

[1] Jerome Masakowski appeals the denial of his motion to set aside the judgment in this action for breach of contract and mortgage foreclosure. We affirm.

Facts and Procedural History

[2] On January 7, 2022, Fund Investment 111, LLC (“Fund Investment”) filed suit against Masakowski and others in relation to commercial property in Evansville. On January 11, Fund Investment sent the complaint and summons to Masakowski at his home address, 48690 Harbor Drive, Chesterfield, Michigan, 48047, via certified mail, return receipt requested.

[3] At that time, the U.S. Postal Service (USPS) was still operating under the following Covid protocols for mail that required customer signatures:

• Avoid ringing the doorbell when possible. Knock on the customer's door. Avoid areas that may be frequently touched when knocking.

• While maintaining a safe, appropriate distance, employees will request the customer's first initial and last name.

• For increased safety, employees will ask the customer to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.

• If there is no response, employees will follow the normal Notice Left process.

Appellant's App. Vol. II p. 166. When Fund Investment requested proof of delivery for its mailing to Masakowski, USPS provided the following, showing a delivery date of January 26, 2022, and the word “Covid” written twice in the “Signature of Recipient” field of the return receipt:

Tabular or graphical material not displayable at this time.

Id. at 97.¹

[4] Masakowski didn't answer the complaint or otherwise appear in the case. In June 2022, Fund Investment moved for summary judgment against Masakowski and the other defendants. Fund Investment mailed the motion to Masakowski at his home address. Masakowski didn't respond to the motion, and in January 2023 the trial court granted summary judgment against him and the other defendants. As to Masakowski, the court entered a money judgment of $7,095,342.99 plus interest, costs, and attorney's fees.

[5] Ten months later, Masakowski moved to set aside the judgment under Indiana Trial Rule 60(B)(6), which allows a court to relieve a party from a judgment when “the judgment is void.” Masakowski claimed that (1) USPS didn't follow its Covid protocols for delivery of certified mail because the return receipt didn't show the first initial and last name of any person; (2) because USPS didn't follow its protocols, service of process was insufficient; (3) because service of process was insufficient, the trial court never had personal jurisdiction over Masakowski; and (4) because the court didn't have personal jurisdiction over Masakowski, the judgment against him is void. After further briefing and oral argument, the court denied the motion. The court explained, “Although the [return receipt] was not necessarily filled out according to the exact specifications outlined by the USPS during the COVID-19 pandemic, the Court finds that the content of the [return receipt] sufficiently demonstrates that the Complaint Package was delivered to Mr. Masakowski's residence.” Id. at 51. [6] Masakowski now appeals.

Discussion and Decision

[7] Masakowski contends the trial court erred by denying his motion to set aside the judgment. Where, as here, a party moves to set aside a judgment under Trial Rule 60(B)(6) on the basis that the judgment is void for lack of personal jurisdiction, and the relevant facts are undisputed, our review is de novo. Jordache White & Am. Transp., LLC v. Reimer, 61 N.E.3d 301, 304-05 (Ind. Ct. App. 2016), reh'g denied, trans. denied.

[8] Masakowski renews his argument that writing the word “Covid” on the return receipt didn't satisfy USPS's Covid protocols for delivery of certified mail and that as a result service of process was inadequate, the trial court didn't have personal jurisdiction over him, and the judgment against him is void. See Sickle v. JTJ Ind., LLC, 220 N.E.3d 1251, 1252-53 (Ind. Ct. App. 2023) (“A judgment entered where there has been insufficient service of process is void for want of personal jurisdiction.”), reh'g denied, trans. denied. We are inclined to agree with Masakowski that USPS didn't follow its Covid protocols. Those protocols required the delivery person to “request the customer's first initial and last name,” and while they didn't explicitly state that the delivery person must then write that first initial and last name on the return receipt, presumably that was the intent. But even if USPS didn't follow its own protocols, the error didn't render service of process insufficient.

[9] Indiana Trial Rule 4.1(A)(1) provides that service of process may be made upon an individual by “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[.]” For three reasons, we conclude that the return receipt showed receipt of the complaint and summons by a person at Masakowski's home. First, “Covid” wasn't the only thing written on the return receipt. Written below “Covid” was “48690 HAR,” which is a clear reference to Masakowski's address of 48690 Harbor Drive. Second, the return receipt was accompanied by “Item Details,” including that the documents were “Delivered, Left with Individual” at 12:44 p.m. on January 26. Third, the same Covid protocols relied upon by Masakowski also state, “If there is no response, employees will follow the normal Notice Left process.” The fact that the return receipt was completed and the delivery person didn't “follow the normal Notice Left process” is further proof that someone opened the door and accepted the mail.

[10] But even if there was a defect under Trial Rule 4.1(A)(1), it wasn't one that requires setting aside the judgment. Another service rule, Trial Rule 4.15(F), provides, “No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.” There is no question that Fund Investment's chosen method of service was reasonably calculated to inform Masakowski of the lawsuit and his obligation to respond. Fund Investment sent the complaint and summons to Masakowski's home address via certified mail, return receipt requested, and it later received a return receipt accompanied by proof of delivery showing that the documents were “Delivered, Left with Individual” at that address. This was not a case where certified mail was returned undelivered or there was no return receipt.

[11] Because there was sufficient service of process, the trial court had personal jurisdiction over Masakowski, the judgment against him isn't void, and his motion to set aside the judgment was properly denied.²

[12] Affirmed.

FOOTNOTES

1.   Chesterfield, Michigan, and New Baltimore, Michigan, share the 48047 ZIP code.

2.   While not relevant to the service-of-process issue, our review of the docket reveals that several other case documents were sent to Masakowski's home address before the trial court entered summary judgment in January 2023. As already noted, Fund Investment sent its motion for summary judgment there. In addition, Fund Investment sent Masakowski a notice filed January 10, 2022, an objection filed January 18, 2022, and a motion filed December 5, 2022. During the same period, Masakowski's name and home address were included on the distribution list of three court orders (dated January 10, 2022, January 20, 2022, and December 28, 2022). Masakowski doesn't deny receiving these other documents, most importantly the motion for summary judgment.

Vaidik, Judge.

Judges Weissmann and Foley concur. Weissmann, J., and Foley, J., concur.