JOHNSON v. HUNTINGTON HEIGHTS ASSOCIATION INC (2025)

MEMORANDUM DECISION

[1] Michael K. Johnson, pro se, appeals the trial court's denial of his motion for relief from judgment. We affirm.

Facts and Procedural History

[2] On August 28, 2024, the Huntington Heights Association, Inc. (“Huntington”) filed a Complaint to Foreclose Lien relating to property commonly known as 10004 Penrith Drive, Indianapolis, Indiana, against numerous defendants including Johnson under cause number 49D06-2408-PL-39519 (“Cause No. 519”) in the Marion Superior Court. That same day, a summons was filed that was addressed to Johnson at the address of 1004 Penrith Drive, Indianapolis, Indiana. Another summons filed that same day included the correct address for Johnson of 10004 Penrith Drive, Indianapolis, Indiana. In addition, Huntington filed an Affidavit of Publication of Notice and a Lis Pendens.

[3] On December 13, 2024, Huntington's counsel filed an Affidavit of Service asserting that a summons and a copy of the complaint had been served on September 12, 2024, by certified mail to Johnson at “10004 E. Penrith Drive, Indianapolis, Indiana,” and attached a receipt from the United States Postal Service. Appellee's Appendix Volume II at 110. The receipt indicated the mailing was sent to Johnson at an address of “1004 Penrith Drive Indianapolis, IN,” listed the status as “Delivered, Individual Picked Up at Post Office” on September 12, 2024, and included a recipient signature box which contains the signature of Johnson, his printed name, and his handwritten address of 10004 Penrith Drive. Id. at 113-114. Huntington's counsel filed an Affidavit of Service with respect to the summons and complaint to “John Doe/Mary Doe, as Unknown Occupants” of “10004 E. Penrith Drive,” and indicated that Johnson picked up the items at the post office and signed for them on September 12, 2024. Id. at 115. On October 14, 2024, Huntington filed a Notice – Proof of Publication indicating that the notice of suit was published in the Indianapolis Business Journal.

[4] Meanwhile, on October 7, 2024, Johnson filed a Petition for Extension of Time requesting “time to prepare evidence by cross counter claim to show proof this complaint is in-conflict of another case and the showing of newly discovered evidence to squash this case.” Appellant's Appendix Volume II at 13. On October 9, 2024, the court granted the petition “up to and including November 7, 2024.” Id. Johnson did not file any response on or before that date.

[5] On January 4, 2025, Huntington filed a Motion for In Rem Judgment by Default and Decree of Foreclosure. On January 28, 2025, Magistrate Katie Melnick entered a Default In Rem Judgment and Decree of Foreclosure.¹

[6] On January 29, 2025, Huntington filed a Praecipe for Sheriff's Sale, and the certificate of service states that, “on January 29, 2025, a true and correct copy of the foregoing was served upon Michael Johnson, 10004 Penrith Drive, Indianapolis, IN 46229, and Defendant John Doe/Mary Doe, as Unknown Occupants, 10004 Penrith Drive, Indianapolis, IN 46229, by US First Class Mail, postage prepaid.” Appellee's Appendix Volume II at 138. On February 12, 2025, Huntington filed a Notice of Sheriff's Sale which requested service to Johnson at 10004 Penrith Drive, Indianapolis, Indiana 46229. A CCS entry dated March 6, 2025, states: “Party Served: Defendant Johnson, Michael NOTICE OF SHERIFF'S SALE POSTED @10004 PENRITH DR. 46229-N5823.” Appellant's Appendix Volume II at 6.

[7] On April 2, 2025, Johnson filed a motion for relief from judgment pursuant to Ind. Trial “Rule 60.(a), (b), (1), (2), (3), and, (6)” under Cause No. 519. Id. at 25. He asserted that the proceedings started and finished without his proper address and that only Judge Eisgruber could enter a final judgment.

[8] On April 8, 2025, Judge Eisgruber entered an order denying Johnson's motion for relief from judgment.² On April 14, 2025, Johnson filed another motion for relief from judgment. On April 16, 2025, the trial court denied the motion.

Discussion

[9] A pro se litigant is held to the same established rules of procedure that trained legal counsel are bound to follow, and the fact that a litigant proceeds pro se does not excuse the litigant from complying with appellate rules. Foster v. Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). “We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016) (citation and quotations omitted), reh'g denied.

[10] Johnson has failed to comply with the requirements of the Indiana Rules of Appellate Procedure as his statement of case and statement of facts do not include citations to the record. See Ind. Appellate Rule 46(A)(5) and (6); and Ind. Appellate Rule 22(C). With respect to the claims for which Johnson fails to cite the record and relevant authority and develop a cogent argument, such claims are waived.

[11] To the extent Johnson develops cogent arguments, we will address them. Johnson argues that Judge Eisgruber and Huntington's counsel committed misconduct by “letting this civil case proceed with the correct address, nor summons the defendant for lack of correct address” and his due process rights were violated. Appellant's Brief at 7. He also asserts that Magistrate Melnick violated Ind. Code § “33-23-5-8(2).” Id. at 10.

[12] We generally review trial court rulings on motions for relief from judgment for an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh'g denied. Relief from judgment under Ind. Trial Rule 60 is an equitable remedy within the trial court's discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). When reviewing the trial court's determination, we will not reweigh the evidence. Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), reh'g denied, trans. denied, cert. denied, 571 U.S. 1131, 134 S. Ct. 952 (2014). The burden is on the movant to demonstrate that relief is both necessary and just. Id. at 372.

[13] Ind. Trial Rule 60 provides:

(A) Clerical Mistakes. Of its own initiative or on the motion of any party and after such notice, if any, as the court orders, clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the trial court at any time before the Notice of Completion of Clerk's Record is filed under Appellate Rule 8. After filing of the Notice of Completion of Clerk's Record and during an appeal, such mistakes may be so corrected with leave of the court on appeal.

(B) Mistake--Excusable Neglect--Newly Discovered Evidence--Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

* * * * *

(6) the judgment is void ․

[14] “The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4).” Ind. Trial Rule 60(B). “A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.” Id.

[15] The Indiana Supreme Court has held “Rule 60(B)’s requirement of a meritorious defense ․ merely requires a prima facie showing of a meritorious defense, that is, a showing that will prevail until contradicted and overcome by other evidence” and the movant “need only present evidence that, if credited, demonstrates that a different result would be reached if the case were retried on the merits and that it is unjust to allow the judgment to stand.” Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 73-74 (Ind. 2006) (citation and quotation marks omitted). On appeal, Johnson does not argue that he alleged a meritorious defense.

[16] With respect to Johnson's argument that the judgment is void, we note that Ind. Trial Rule 4.9 provides:

(A) In General. In any action involving a res situated within this state, service may be made as provided in this rule. The court may render a judgment or decree to the extent of its jurisdiction over the res.

(B) Manner of Service. Service under this rule may be made as follows:

(1) By service of summons upon a person or his agent pursuant to these rules; or

(2) By service of summons outside this state in a manner provided by Rule 4.1 (service upon individuals) or by publication outside this state in a manner provided by Rule 4.13 (service by publication) or outside this state in any other manner as provided by these rules; or

(3) By service by publication pursuant to Rule 4.13.

[17] Ind. Trial Rule 4.1 provides:

(A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:

(1) 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; or

(2) delivering a copy of the summons and complaint to him personally; or

(3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or

(4) serving his agent as provided by rule, statute or valid agreement.

(B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons and the complaint to the last known address of the person being served, and this fact shall be shown upon the return.

[18] “Under Indiana Trial Rule 4.15(F),[³ ] no summons or service of process shall be set aside if either is reasonably calculated to inform the defendant of the impending action against him.” Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1058 (Ind. Ct. App. 2006) (citation omitted). “Thus, Trial Rule 4.15(F) will prevent service of process which is technically deficient from defeating the personal jurisdiction of a court.” Id. (citation omitted). “[A]lthough actual notice alone will not cure defective service, it may be considered in determining whether the notice was reasonably calculated to inform an organization of the action.” Id. at 1058-1059 (citation omitted).

[19] The record reveals that Huntington's counsel filed an Affidavit of Service, which asserted “under the penalties of perjury that the service of certain documents was duly had upon” Johnson, and that a summons and a copy of the complaint was served on September 12, 2024, by certified mail to Johnson at “10004 E. Penrith Drive, Indianapolis, Indiana.” Appellee's Appendix Volume II at 110. While the receipt from the United States Postal Service attached to the affidavit indicated the mailing was shipped to Johnson at an address of “1004 Penrith Drive Indianapolis, IN,” the receipt also listed the status as “Delivered, Individual Picked Up at Post Office” on September 12, 2024. Id. at 113-114. The receipt also included a recipient signature box which contained a signature of Johnson, his printed name, and his handwritten address of 10004 Penrith Drive. Id. at 114. Huntington also filed a Notice – Proof of Publication indicating that the notice of suit was published in the Indianapolis Business Journal. We further note that Johnson filed a Petition for Extension of Time on October 7, 2024, requesting “time to prepare evidence by cross counter claim to show proof this complaint is in-conflict of another case and the showing of newly discovered evidence to squash this case.” Appellant's Appendix Volume II at 13. With respect to Johnson's argument that Magistrate Melnick violated Ind. Code § “33-23-5-8(2),” Appellant's Brief at 10, we note that Ind. Code § 33-23-5-8.5 provides: “Except as provided in section 8 of this chapter,[⁴ ] a magistrate has the same powers as a judge.”⁵ Reversal is not warranted.

[20] For the foregoing reasons, we affirm the trial court's order.

[21] Affirmed.

FOOTNOTES

1.   The chronological case summary (“CCS”) contains two entries for January 28, 2025. The first entry states: “Order Granting Motion for Default Judgment (Judicial Officer: Melnick, Katie – MAG) Order Signed: 01/28/2025.” Appellant's Appendix Volume II at 6. The second entry states: “Default Judgment entered (Judicial Officer: Eisgruber, Kurt) Comment (REM JUDGMENT $33585.17 10004 E. Penrith Drive, Indianapolis, IN 46229 01/28/2025).” Id. (bold omitted). A CCS entry dated January 29, 2025, states: “Automated Paper Notice Issued to Parties Order Granting Motion for Default Judgment ---- 1/28/2025: Michael Johnson; John Doe/Mary Doe, as Unknown Occupants, et al.” Id. (italics omitted).

2.   This order was dated April 8, 2025, and filed April 9, 2025.

3.   Ind. 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.”

4.   Ind. Code § 33-23-5-8 provides: “A magistrate does not have the power of judicial mandate.” That exception is not applicable here.

5.   While Johnson cites Ind. Code § “33-23-5-8(2),” Appellant's Brief at 10, the section does not include a subsection (2). Johnson cites In re Hawkins, 902 N.E.2d 231, 240 (Ind. 2009), which states in part that a commissioner “routinely entered final orders in PCR cases, rather than reporting her findings to Judge Hawkins for entry of the final order, in violation of Indiana Code [§] 33-23-5-8(2) ․” At that time, Ind. Code § 33-23-5-8 provided: “Except as provided under sections 5(14) and 9(b) of this chapter, a magistrate: (1) does not have the power of judicial mandate; and (2) may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.” Ind. Code § 33-23-5-8 has been amended since In re Hawkins.

Brown, Judge.

Felix, J., and Scheele, J., concur.