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Munster v. Groce6/8/2005
Case Summary
David Munster appeals the dismissal of his complaint against Joe Groce and Business World, Inc. ("BWI"). We affirm in part, reverse in part, and remand.
Issues
The restated issues before us are:
I. whether Munster properly effected service of process on Groce; and
II. whether Munster properly effected service of process on BWI.
Facts
On February 25, 2000, Munster and Groce were involved in an automobile accident. At the time, Groce was an employee of BWI, a corporation that later was dissolved in July 2001. On February 15, 2002, Munster filed a complaint against Groce and BWI. Munster attempted to serve both Groce and BWI by certified mail. Both mailings were returned undelivered on March 1, 2002; the mailing to Groce was marked "attempted not known" and the mailing to BWI was marked with a new address. App. p. 2.
No further action was taken in the case until December 2003, when Munster obtained new counsel. Second attempts to serve BWI and Groce by certified mail were again returned undelivered, with the marking on each "forwarding order expired." Id. Munster then attempted to serve BWI and Groce through the Indiana Secretary of State, as provided by Indiana Trial Rule 4.10. Munster did not file a praecipe for summons with the trial court, but instead delivered copies of the summons and complaint directly to the Secretary of State. Munster provided the Secretary of State with addresses for BWI and Groce, the Secretary of State mailed copies of the summons and complaint to those addresses, and they were returned undelivered as before.
At least by December 2003, BWI's former insurer learned of Munster's lawsuit and filed an answer on behalf of BWI and Groce, which among other things asserted the affirmative defenses of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. On January 22, 2004, counsel also filed a motion to dismiss on behalf of BWI and Groce under Indiana Trial Rules 12(B)(2), (4), and (5), alleging a lack of personal jurisdiction due to insufficiency of process and service of process. The motion also sought dismissal due to failure to prosecute pursuant to Indiana Trial Rule 41(E).
On January 26, 2004, Steve Harris, an investigator hired by Munster's counsel, delivered a copy of the summons and complaint to the residence of George Mikesell, who was listed as a director of BWI in its articles of incorporation. Mikesell was not home at the time, but his wife Lois personally received the summons and complaint. Harris phoned Mikesell the next day and confirmed that he received the summons and complaint. Also on January 26 and January 31, 2004, Harris attempted personal delivery of the summons and complaint at Groce's alleged former places of residence and employment, but could not locate him.
On May 17, 2004, the trial court dismissed Munster's complaint pursuant to Trial Rules 12(B)(2), (4), and (5); it did not dismiss under Trial Rule 41(E). It stated in its order that Munster had not complied with Trial Rule 4.10 allowing for service through the Secretary of State because he had not filed a praecipe for summons with the trial court first. As for the January 26, 2004 delivery of the summons and complaint to Lois Mikesell, the trial court struck the acknowledgment of service she had signed and concluded that she had no actual or apparent authority to accept service on BWI's behalf.
On June 14, 2004, Munster filed a motion to correct error. On the same date, Munster also filed, with the trial court this time, a praecipe for summons for service upon BWI and Groce through the
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