Opinion
No. 34A02-1010-MI-1145
09-06-2011
KELAND L. BROWN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
APPELLANT PRO SE : KELAND L. BROWN Michigan City, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
APPELLANT PRO SE:
KELAND L. BROWN
Michigan City, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable George A. Hopkins, Judge
Cause No. 34D04-0804-MI-415
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES , Judge
Case Summary
Keland Brown appeals the denial of his motion to set aside default judgment. We reverse and remand.
Issue
Brown raises two issues, which we consolidate and restate as whether the trial court properly denied his motion to set aside default judgment.
Facts
According to Brown, on March 6, 2008, he was a passenger in a car that was stopped for having fictitious license plates. As a result of the stop, police found a clear plastic baggie containing an off-white rock-like substance, marijuana, and $463 in cash in Brown's possession. That same day, Brown was charged with Class B felony dealing in cocaine, Class D felony possession of cocaine, and Class A misdemeanor possession of marijuana and incarcerated in the Howard County Jail. On April 9, 2008, the State filed additional charges against Brown, apparently related to his incarceration at the Howard County Jail. Brown eventually pled guilty to the April 2008 charges, and the March 2008 charges were dismissed.
On April 17, 2008, while Brown was apparently still incarcerated at the Howard County Jail, the Howard County Prosecutor on behalf of the State filed a complaint for the forfeiture of the $463 and mailed a summons and a copy of the complaint to a Detroit, Michigan address. On February 3, 2009, the trial court set the matter for a hearing pursuant to Indiana Trial Rule 41(E). On February 12, 2009, the State filed a praecipe for service by publication, and Brown was served by publication in the Kokomo Tribune between February 21, 2009, and March 7, 2009.
On March 5, 2009, the trial court trial court received a letter from Brown indicating that he was incarcerated. A bench trial was scheduled for April 9, 2009, and notice of the trial was sent to the Michigan address. Brown failed to appear, and default judgment was entered against him. Notice of the default judgment also appears to have been sent to the Michigan address.
On September 17, 2010, Brown filed a motion to set aside the default judgment on the basis that the trial court lacked personal jurisdiction over him and that he was not served in accordance with Indiana Trial Rule 4.3. On September 30, 2010, the trial court denied Brown's motion. Brown now appeals.
Analysis
Brown argues that the trial court improperly denied his motion to set aside default judgment because the trial court did not acquire personal jurisdiction over him, rendering the default judgment void. "Ineffective service of process prohibits a trial court from having personal jurisdiction over a respondent." In re Adoption of D.C., 887 N.E.2d 950, 955 (Ind. Ct. App. 2008). "A judgment rendered without personal jurisdiction over a defendant violates due process and is void." Id. "Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the 'reasonable time' limitation under Indiana Trial Rule 60(B)(6) does not apply." Id. The question of whether process was sufficient to permit a trial court to exercise jurisdiction over a party involves two issues: whether there was compliance with the Indiana Trial
Rules regarding service and whether such attempts at service comported with the Due Process Clause of the Fourteenth Amendment. Id. at 955-56.
The State concedes, "service by publication does not seem to be applicable to this case, rather Indiana Trial Rule 4.3 is likely the more appropriate method of service." Appellee's Br. p. 4. Indiana Trial Rule 4.3 provides:
Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel.The State agrees that the record does not show service on Brown in compliance with Trial Rule 4.3. The State also recognizes that the notice of trial was sent to Brown in Michigan, despite the fact that Brown notified the trial court that he was in prison and provided his Department of Correction number prior to the notice being set. The State concedes, "this matter should be remanded to the trial court for a hearing to determine whether service on Brown was proper and in compliance with Trial Rule 4.3, and to have a new trial with respect to the complaint for forfeiture." Id. at 5.
In light of the State's concessions regarding its failure to comply with Indiana Trial Rule 4.3, a hearing on the issue of personal jurisdiction is unnecessary. Because of the failure to comply with Indiana Trial Rule 4.3, service on Brown at the Michigan address while he was incarcerated was defective. The default judgment is void based on the improper service, and the trial court improperly denied Brown's motion to set aside the default judgment.
Conclusion
Because the State concedes service was not proper, we conclude that the trial court improperly denied Brown's motion to set aside default judgment. We reverse and remand for the trial court to vacate the entry of default judgment and for further proceedings consistent with this opinion.
Reversed and remanded. ROBB, C.J., and BRADFORD, J., concur.