STEWART v. FINKTON (2025)

MEMORANDUM DECISION

Case Summary

[1] Marcie Stewart appeals the trial court's order granting Darryl Finkton's verified motion to set aside a summary judgment order and denying Stewart's motion to correct error. The dispositive issue on appeal is whether the trial court erred when it granted the motion to set aside the summary judgment order. We affirm.

Facts and Procedural History

[2] On February 28, 2022, Stewart filed a complaint for damages and forfeiture of real property that was the subject of a land contract between Stewart and Finkton. The complaint alleged that Finkton had breached the land contract and caused damages to Stewart. Stewart hired a professional process server to serve the complaint and summons to Finkton in person on March 3, 2022, at his last known Indiana address, which was the address Finkton had provided in the land contract. The server was unable to serve Finkton at that address, and a “neighbor and resident verified [Finkton] had moved away from said address months ago.” App. v. II at 21.

[3] Stewart's attorney subsequently obtained information that Finkton “may have moved to Boca Raton, Florida” and had a process server attempt to serve Finkton at his last known Boca Raton address. Id. at 111. However, when the server attempted to serve the papers at that address on April 19, 2022, the individuals living at that address stated that the property was a rental unit, Finkton was not a tenant there, and they did not know whether Finkton had been a former resident there.

[4] On April 25, 2022, Stewart's counsel filed a Praecipe for Service by Publication and an accompanying affidavit in which counsel swore that “[m]ultiple attempts to serve the Defendant Darryl Finkton have been made by a process server at the last known address(es) for the Defendant Darryl Finkton, all of which were unsuccessful.” Id. at 19. The affidavit stated that, “[d]espite due diligence, Defendant has not been found, has concealed his whereabouts, or has left the state such that service pursuant to Trial Rules 4.5, 4.9 and 4.13 is appropriate.” Id. Stewart also attached affidavits from the process servers in Indiana and Florida, indicating that personal service at the known addresses was unsuccessful. Stewart's counsel informed the court that she had conducted service by publication, per Trial Rule 4.13, and provided copies of proof of publication of notice in the Indianapolis Business Journal and South Florida Business Journal. Such notice was given three times in each publication. Nevertheless, Finkton failed to appear or file a responsive pleading in the lawsuit.

[5] On August 30, 2024, Stewart moved for summary judgment against Finkton. In her accompanying memorandum, Stewart noted that Finkton had failed to appear or file a responsive pleading and that all averments—other than those pertaining to the amount of damages—were deemed admitted per Trial Rule 8(D). On September 3, 2024, the trial court issued an order granting summary judgment to Stewart and awarding her the real property and damages totaling $134,353.58. A copy of the order was mailed to Finkton's last known Indiana address.

[6] On September 27, 2024, Finkton appeared and filed a “Verified Emergency Motion to Set Aside Judgment Pursuant to Trial Rule 60(B).” Id. at 83 (emphasis original). That verified motion stated that Finkton was never served with notice of the lawsuit and that he had first learned of the suit when a “notice to vacate was recently served at the property” in question. Id. at 84-85. He also stated that he had received the notice to vacate when it was emailed to him by Stewart's counsel on September 16, 2024. Finkton additionally verified in his motion that he and Stewart had “known each other for many years,” that Stewart at all relevant times had Finkton's telephone number and email address, and that Stewart had not called or emailed him to ask for a current address. Id. at 83. Finkton further verified that Stewart did not inform Finkton of the lawsuit on the several occasions when they had spoken in person “in the last year.” Id. Finkton requested that the summary judgment order be vacated pursuant to Trial Rules 60(B)(1), (3), (4), and (6).

[7] Stewart filed a response and supplemental response to Finkton's motion, which included the affidavit of Stewart and her husband, Donnie Wheaton. The affidavit stated that, on August 4, 2023, Stewart and Wheaton were taking photographs at the real estate in question when Finkton also appeared and approached them. The affidavit averred that Wheaton then verbally informed Finkton of the lawsuit against him.

[8] The trial court held a hearing on Finkton's motion to set aside judgment on December 18. The trial court heard argument of counsel but did not permit testimony by Finkton.¹ The court took the matter under advisement but asked Finkton whether he would concede that there was proper notice and that a summary judgment motion had been filed if the court ultimately ruled in his favor on his motion to set aside judgment. On December 27, the court issued its order granting Finkton's motion to set aside judgment, stating: “The Judgment entered on September 4, 2024[,] against the Defendant is hereby VACATED. Defendant shall be permitted to file an Answer to Plaintiff's Complaint within 23 days of this Court's Order.” App. v. II at 9. On January 27, 2025, Stewart filed a Motion to Correct Error. On February 27, the trial court held a hearing on that motion and denied it. This appeal ensued.²

Discussion and Decision

[9] Stewart contends that the trial court erred when it granted Finkton's “Motion to Set Aside” the summary judgment pursuant to Trial Rule 60(B). Id. at 83. “Ordinarily, we review under an abuse of discretion standard” a trial court's ruling on such a motion. Holland v. Trs. of Ind. Univ., 171 N.E.3d 684, 688 (Ind. Ct. App. 2021), trans. denied. “However, if a trial court's ruling is strictly based upon a paper record, we will review the ruling de novo because we are in as good a position as the trial court to determine the force and effect of the evidence.” Baker v. Baker, 50 N.E.3d 401, 403-04 (Ind. Ct. App. 2016). The trial court here ruled solely upon a paper record; therefore, our review is de novo.

[10] In his Rule 60(B) motion, Finkton asserted that the summary judgment order was void for lack of personal jurisdiction over him because Stewart did not provide him with adequate service of process under the Indiana Trial Rules. Trial Rule 4 provides that a court acquires jurisdiction over a person where the person “is served with summons or enters an appearance.” Ind. Trial Rule 4(A). “A judgment entered where there has been insufficient service of process is void for want of personal jurisdiction.” Hair v. Deutsche Bank Nat'l Tr. Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citing Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 759 (Ind. 2014)).

[11] An individual may be served with a summons in the manner prescribed by Indiana Trial Rule 4.1, which includes delivery of a copy of the summons and complaint to him personally. T.R. 4.1(A)(2). When the person to be served is a resident of Indiana and “cannot be served personally or by agent in this state and either cannot be found, has concealed his whereabouts or has left the state, summons may be served in the manner provided by Rule 4.9[.]” T.R. 4.5. Trial Rule 4.9 allows “service by publication pursuant to Rule 4.13.” T.R. 4.9(B)(3). Rule 4.9 also allows service of summons outside this state by publication per Rule 4.13. Indiana Trial Rule 4.13(A) provides, in relevant part:

Praecipe for summons by publication. In any action where notice by publication is permitted by these rules or by statute, service may be made by publication․ The person seeking such service, or his attorney, shall submit his request therefor upon the praecipe for summons along with supporting affidavits that diligent search has been made that the defendant cannot be found, has concealed his whereabouts, or has left the state, and shall prepare the contents of the summons to be published. The summons shall be signed by the clerk of the court or the sheriff in such manner as to indicate that it is made by his authority.

[12] The Due Process Clause requires “that there be a diligent search for a party before attempting notice of a lawsuit by publication only.” Hair, 18 N.E.3d at 1023 (citing In re Adoption of L.D., 938 N.E.2d 666, 669 (Ind. 2010)). That is, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. (citation modified). “[M]ere gestures” are not sufficient to fulfill the obligation to exercise due diligence, and “ ‘the means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ ” Id. (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315 (1950)). Thus,

minimal or perfunctory efforts to locate a party are insufficient to justify service by publication, and ․ if initial attempts to locate or serve a party are fruitless, the circumstances may require more effort to locate the party instead of proceeding directly to service by publication.

Id.

[13] Here, Stewart's praecipe for summons by publication showed that she attempted personal service, per Trial Rule 4.1, upon Finkton at his last known Indiana residence and, when that was unsuccessful, at his last known address in Boca Raton, Florida. And, although the praecipe averred that Finkton could not be found “despite due diligence,” the praecipe shows that no further efforts were made to learn of Finkton's current address(es). However, Finkton asserted in his verified motion to set aside the judgment that he and Stewart had “known each other for many years,” and that Stewart had Finkton's telephone number, which had not changed. App. v. II at 83. Finkton asserted that Stewart also had a correct email address for him, as shown by the fact that Stewart's counsel had successfully emailed him a copy of the Notice to Vacate Property that was issued following entry of summary judgment. Finkton further alleged that Stewart knew he did not live at the Indiana address where she had attempted to serve him personally but did not contact him by telephone or email to acquire his current address. Finkton also averred that Stewart did not ask him for his current address when they had spoken in person after the lawsuit had been filed.

[14] In her response to Finkton's motion, Stewart does not deny that she had a current telephone number and email address for Finkton but did not attempt to contact Finkton by those means to obtain a current address. Rather, Stewart irrelevantly notes that the trial rules do not allow her to serve Finkton by telephone or email. And, although Stewart and Wheaton submitted a supplemental affidavit in which they alleged that Wheaton informed Finkton of the existence of the lawsuit when they spoke to him in person, they do not dispute that they failed to personally serve Finkton at that time or ask him for a current address at which to serve him.

[15] The undisputed evidence that Stewart had a current telephone number and email address for Finkton establishes that circumstances existed which required at least the minimal additional effort to locate Finkton by calling or emailing him before “proceeding directly to service by publication.” Hair, 18 N.E.3d at 1023. The fact that Stewart did not attempt to contact Finkton by those simple and reasonable means to obtain a current address at which to serve him establishes that Stewart did not make a “diligent” but unsuccessful search that would have justified service by publication. Id.; T.R. 4.13(A). Thus, the service of process upon Finkton was inadequate, and the trial court did not obtain personal jurisdiction over him. The summary judgment was void, and the trial court did not err in granting the motion to set it aside.³

Conclusion

[16] Stewart failed to provide Finkton with adequate service of process under the Indiana Trial Rules. Therefore, the summary judgment order was void for lack of personal jurisdiction, and the trial court correctly granted Finkton's motion to set that order aside.

[17] Affirmed.

FOOTNOTES

1.   The court specifically noted that Finkton's verified statements in his motion to set aside the judgment were “sufficient” to allow him to rule on that motion. Tr. at 16.

2.   The order was deemed final and appealable pursuant to Indiana Appellate Rule 2(H)(3) and Indiana Trial Rule 60(C).

3.   Stewart also maintains that the trial court erred when, after setting the summary judgment order aside, it allowed Finkton to file an answer to the complaint rather than merely an answer to the motion for summary judgment. Stewart asserts that order was “inconsistent with the position” the trial court took at the hearing on the motion to set aside judgment. Appellant's Br. at 16. However, the trial court did not issue an order from the bench at that hearing, nor did it ever state that if it set aside the judgment it would allow the parties to proceed only from the point of briefing summary judgment. Rather, the court specifically stated that it was taking the motion to set aside judgment “under advisement,” and it did not issue an order on the motion until the December 27 order granting the motion and allowing Finkton to file an answer to the complaint. Tr. at 19.

Bailey, Judge.

Brown, J., and Weissmann, J., concur.