ELZEY v. KRIEG (2025)

MEMORANDUM DECISION

[1] In February 2023, Marilyn Krieg (landlord) and Kortney Elzey (tenant) entered into a five-month lease for a mobile home in Fort Wayne. On July 20, 2023, David Krieg (on behalf of his mother who had since passed away) filed a Notice of Eviction Claim against Elzey in the Allen Superior Court Small Claims Division. That same day, a process server left a copy of the Notice of Eviction Claim at the mobile home and mailed a copy to the mobile home. See Affidavit for Service of Process, No. 02D02-2307-EV-2537 (Aug. 22, 2023). When Elzey did not respond to the Notice of Eviction Claim, Krieg sought a default judgment for possession of the mobile home. In August, the trial court granted a default judgment for possession and set a damages hearing for October.

[2] On September 12, Elzey, who had been incarcerated in the Huntington County Jail since May 12, filed a pro se counterclaim against Krieg for $15,660 for repairs Elzey had allegedly made to the mobile home. Notably, Elzey didn't allege that he hadn't been served with the Notice of Eviction Claim or otherwise challenge the court's personal jurisdiction over him.

[3] On September 20, Elzey filed a Notice of Claim.¹ Elzey alleged that Krieg “was aware, at the time of filing the [Notice of Eviction Claim], to [his] location”; however, he didn't ask the trial court to dismiss the case or otherwise challenge the court's authority to act. See Notice of Claim, No. 02D02-2307-EV-2537 (Sept. 20, 2023). Instead, Elzey (again) requested $15,660 in damages. The court ordered that Elzey's counterclaim would be heard at the October damages hearing.

[4] Elzey appeared at the hearing telephonically from jail. The trial court asked Elzey when he became incarcerated (May 12) and then asked Krieg when he learned about Elzey's incarceration (July). Tr. Vol. II p. 18. Again, Elzey didn't ask the court to dismiss the case or otherwise challenge the court's authority to act. Instead, Elzey testified about the repairs he had allegedly made to the mobile home. The trial court entered judgment against Elzey for $4,046.01.

[5] In October 2024, Elzey filed an Indiana Trial Rule 60(B)(6) motion for relief from the default judgment for possession, arguing that the trial court did not have personal jurisdiction over him due to “lack of service” and therefore the judgment is void.² Appellant's App. Vol. III p. 2. The trial court denied the motion, noting that Elzey had filed a counterclaim and a Notice of Claim.

[6] Elzey, pro se, now appeals the denial of his Trial Rule 60(B)(6) motion. Because Krieg did not file an appellee's brief, Elzey need only make a prima facie showing of reversible error. See Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Elzey cannot do so. Even assuming that Elzey was not properly served with the Notice of Eviction Claim and the trial court did not have personal jurisdiction over him, defendants can waive lack of personal jurisdiction and submit themselves to the jurisdiction of the court if they respond or appear and do not contest the court's jurisdiction. See Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1055 (Ind. Ct. App. 2006); Liberty First Bank v. Auto. Fin. Corp., 179 N.E.3d 510, 512 (Ind. Ct. App. 2021). Here, Elzey filed a counterclaim and a Notice of Claim and appeared telephonically at the damages hearing, requesting $15,660 in damages. Because Elzey never moved to dismiss the case or otherwise challenged the court's authority to act, he waived the issue of personal jurisdiction. We therefore affirm the denial of his motion for relief from judgment.

[7] Affirmed.

FOOTNOTES

1.   Elzey filed the Notice of Claim because the trial court told him his September 12 filing was defective because it wasn't on a Notice of Claim form. The court later found that the counterclaim was not defective.

2.   Elzey also cited Trial Rule 60(B)(3) in his motion, but on appeal he only addresses Trial Rule 60(B)(6).

Vaidik, Judge.

Bailey, J., and DeBoer, J., concur.