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Kelly v. Bennett7/31/2000
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Marilyn Bennett and Richard Bennett ("the Bennetts") sued Thomas Kelly, D.O. ("Kelly"). The trial court entered a default judgment against Kelly, and he appeals from the trial court's denial of his motion to set aside the judgment.
We reverse and remand.
ISSUE
Kelly presents three issues for our review, which we consolidate and restate as: whether the trial court erred when it denied his motion to set aside the default judgment for insufficiency of service of process.
FACTS AND PROCEDURAL HISTORY
On October 22, 1998, the Bennetts filed a complaint against Kelly for personal injuries Marilyn Bennett sustained as a result of Kelly's alleged medical malpractice. The Bennetts requested that the summons and complaint be served upon Kelly by Sheriff at his office address in Merrillville. The Sheriff left copies of the summons and complaint at the office address and also mailed copies to that address. Kelly did not answer the Bennetts' complaint within the required thirty-days.
On December 1, 1998, the Bennetts filed a motion for default judgment, which the trial court granted on December 2, 1998. On December 3, 1998, the Bennetts sent additional copies of the summons and complaint via facsimile to Kelly's office located in Flossmoor, Illinois . Kelly then hired counsel, who entered his appearance on Kelly's behalf on December 30, 1998. Kelly filed a motion to set aside default judgment on February 1, 1999. After a hearing, the trial court denied Kelly's motion. Kelly filed a motion to correct error, which the trial court also denied. Kelly now appeals.
DISCUSSION AND DECISION
The grant or denial of a default judgment is within the trial court's discretion. Precision Erecting, Inc. v. Wokurka, 638 N.E.2d 472, 473 (Ind. Ct. App. 1994), trans. denied. On appeal, we will reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. The trial court may relieve a party from a default judgment upon one of the several grounds set forth in Trial Rule 60(B). LaPalme v. Romero, 621 N.E.2d 1102, 1104 (Ind. 1993). Upon his motion to set aside default judgment in the trial court, the burden was upon Kelly to present sufficient grounds for relief. See id.
Kelly contends that the default judgment against him is void because the court did not have personal jurisdiction over him at the time the judgment was entered. He maintains that the Bennetts' means of service of process were insufficient under both Trial Rule 4.1 and 4.15(F). We agree.
Trial Rule 4.1 provides in relevant part:
Service may be made upon an individual . . . 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.
The Bennetts' attempt to obtain service on Kelly was ineffective. They requested service by Sheriff to Kelly's business address in Merrillville. The prescribed means of service at a business address are: personal service, registered or certified mail, or some other means of mailing with a written acknowledgment of receipt.
Page 1 2 Indiana Personal Injury Attorneys
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