Stewart West, Appellant-Defendant v. Westminster Apartments, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Stewart West appeals the small-claims court's denial of his motions to set aside a default judgment. We affirm.

Facts and Procedural History

[2] On July 19, 2018, Westminster Apartments sued West in small-claims court for eviction, rent due, and damages. The notice of claim stated that an eviction hearing would be held on August 10 and a damages hearing would be held on November 30. Appellant's App. Vol. 2 p. 10. West was served with the notice of claim on July 23. See id. at 3 (July 25, 2018 CCS entry). Both parties appeared for the eviction hearing, and the court issued a prejudgment order for possession. Before the damages hearing, Westminster assigned the case to Cardinal Accounts Inc. for collection and moved to modify the case caption to reflect the assignment. On November 28, the court issued an order granting the motion to modify, and notice of the order was mailed to West.

[3] West failed to appear for the November 30 damages hearing, so the court reset it for January 11, 2019. Notice of the January hearing date was mailed to West. See id. at 4 (Dec. 1, 2018 CCS entry). Several days later, the notice of the order granting the motion to modify that had been mailed to West was returned “not deliverable as addressed.” Id. (Dec. 11, 2018 CCS entry). There is no indication in the CCS that the notice of hearing was similarly returned. West didn't appear for the January damages hearing, and the court entered default judgment for Westminster for $4,560.09.

[4] Six years later, in March 2025, West, pro se, moved to set aside the default judgment, which he claimed to have just learned about. At a hearing on the motion, West acknowledged that (1) the notice of claim provided that the eviction hearing would be held on August 10, 2018, and the damages hearing would be held on November 30, 2018, (2) the CCS shows he was served with the notice of claim, and (3) he was present for the eviction hearing. But he claimed that he wasn't aware of the November 30 damages hearing and that the default judgment is void because he didn't receive notice of the continued hearing date. West couldn't explain how he knew of the eviction-hearing date but not the November damages-hearing date. Following the hearing, the small-claims court denied West's motion. A few days later, West filed another motion to set aside, again arguing that he was entitled to relief from the default judgment because he didn't receive notice of the January damages hearing. The court also denied that motion.

[5] West, still pro se, now appeals.

Discussion and Decision

[6] West contends that the small-claims court erred in denying his motions to set aside the default judgment. Westminster didn't file an appellee's brief, so West need only make a prima facie showing of error. See Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). He has not done so. West argues that he didn't receive notice of the damages hearing and that the default judgment is therefore void, entitling him to relief under Indiana Trial Rule 60(B)(6).¹ A party seeking relief under Rule 60(B)(6) must establish that the judgment is void, not merely voidable. T.D. v. State, 219 N.E.3d 719, 725 (Ind. 2023). West cites no authority to suggest that lack of notice of the damages hearing would render the judgment void. In fact, his brief contains no citations at all—not to any authorities or to the appellate record—in substantial violation of the Indiana Rules of Appellate Procedure. See Ind. Appellate Rule 46(A)(6)(a) (“The facts shall be supported by page references to the Record on Appeal or Appendix ․”); id. at (A)(8)(a) (providing each contention in the appellant's argument section “must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on”).

[7] Violations aside, West has not established that the default judgment is void. “A judgment is void when the issuing court lacks personal jurisdiction, subject matter jurisdiction, or the authority to render the judgment.” T.D., 219 N.E.3d at 726. West doesn't argue that the small-claims court lacked subject-matter jurisdiction or authority to render the judgment. He mentions personal jurisdiction, but there is no question that the court had personal jurisdiction over West—the CCS shows that he was served with the notice of claim, which he does not dispute, and he appeared for the eviction hearing. See Ellis v. M & I Bank, 960 N.E.2d 187, 192 (Ind. Ct. App. 2011) (“The existence of personal jurisdiction requires effective service of process on a defendant. Barring that, a defendant can waive the lack of personal jurisdiction and submit herself to the jurisdiction of the court by responding or appearing and failing to contest the lack of jurisdiction.” (citations omitted)). West has failed to establish that the default judgment is void.

[8] And even if lack of notice of the damages hearing would render the judgment void, West hasn't proven that he didn't receive notice. He doesn't challenge the adequacy of service of the notice of claim, which provided that the eviction hearing would be held on August 10, 2018, and the damages hearing would be held on November 30. Despite receiving this notice and attending the eviction hearing, West failed to appear for the November 30 damages hearing. As a result, the damages hearing was continued to January 2019. See Appellant's App. Vol. 2 p. 3 (July 25, 2018 CCS entry) (“Plaintiff appears by counsel. Defendant fails to appear. Cause is continued and reset for 01/11/19 at 1:30 p.m.”). West claims that the notice of the January hearing date was returned as undeliverable, but the Odyssey case-management system shows that the returned document was the notice of the order granting the motion to modify the case caption, not the notice of the January hearing. See “First Class Mail Returned,” Cause No. 41D01-1807-SC-2303 (Dec. 11, 2018). Neither Odyssey nor the CCS indicate that the notice of the January hearing date (or any other notice sent to West) was returned as undeliverable, and West doesn't point to any other evidence that he didn't receive notice of the January hearing, such as evidence that he had moved from that address. West has not shown any error—not even prima facie error—in the denial of his motion for relief from judgment.² We therefore affirm the small-claims court.

[9] Affirmed.

FOOTNOTES

1.   West claimed in his second motion to set aside that he was entitled to relief under several other subsections of Trial Rule 60(B), but on appeal he addresses only Rule 60(B)(6).

2.   West also argues that “the trial court failed to mitigate damages by not recognizing the unit was re-rented.” Appellant's Br. p. 4. But West didn't make this argument below, so he cannot now make it for the first time on appeal. See Wilkes v. Celadon Grp., Inc., 177 N.E.3d 786, 794 (Ind. 2021) (explaining that an argument raised for the first time on appeal is waived).

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.