FRONT ROW MOTORS, LLC, AND JERRAMY JOHNSON, Appellants (Defendants below),
SCOTT JONES, Appellee (Plaintiff below)
Appeal from the Marion Superior Court, Civil Division 2, No. 49D02-1001-PL-001299. The Honorable Theodore M. Sosin, Presiding Judge.
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1206-PL-502.
ATTORNEYS FOR APPELLANTS: Robert D. King, Jr., David Ray Thompson, Law Office of Robert D. King, Jr., P.C., Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: Robert Edward Duff, Indiana Consumer Law Group/Law Office of Robert E. Duff, Lebanon, Indiana.
Rucker, Justice. Dickson, C.J., and David, Massa and Rush, JJ., concur.
A car dealership appeals the denial of its motion to set aside default judgment. We conclude the trial court lacked jurisdiction over the dealership at the time the default was entered and therefore reverse the trial court's judgment.
Facts and Procedural History
Jerramy Johnson is a car dealer and the owner of Front Row Motors, LLC.
Johnson sold Scott Jones a used car on which Jones believed Johnson had rolled back the odometer and fraudulently claimed otherwise. Jones filed a complaint against Front Row Motors, LLC alleging among other things a violation of the Indiana Deceptive Sales Act. Counsel entered an appearance on Front Row's behalf and answered the complaint. Discovery ensued in due course; and Johnson's deposition was scheduled for March 23, 2011. As it turns out Johnson at tat time was in the custody of the Hamilton County Community Corrections facility. On that same date counsel withdrew his appearance for Front Row. After Johnson failed to appear for his deposition, Jones filed a motion to compel discovery. See Ind. Trial Rule 37(A). The trial court granted the motion ordering Johnson to appear for deposition on April 19, 2011. When Johnson again failed to appear Jones moved for default judgment against Front Row as a sanction. At the hearing on the motion, Jones argued, " we believe . . . that a default judgment, in favor of Mr. Jones and against Front Row Motors is now warranted, for Mr. Johnson's failure to appear twice for his deposition." Hr'g. on Default Tr. at 7. However, Jones asked the trial court to withhold ruling on the motion so that he could amend his complaint to add Jerramy Johnson as an additional defendant. Jones explained: " [I]f the Court would . . . allow us to, we'd like to add Mr. Johnson as a Defendant, personally, and . . . probably proceed to get a default judgment against him as well, and have the Court ultimately issue judgment against him personally, and Front Row Motors." Hrg. on Default Tr. at 8. With leave of court, on May 19, 2011 Jones filed his First Amended Complaint adding Johnson as a party defendant.
After Johnson failed to respond to the amended complaint, Jones moved for a hearing on default judgment and damages. Notice of the hearing was served on Johnson at his business address as well as his home address. The record would later reveal Jones was aware that Johnson was still in the custody of the Hamilton County Community Corrections facility. At a hearing where neither of the defendants nor counsel on their behalf appeared, the trial court awarded damages in favor of Jones and against Johnson and Front Row Motors " jointly and severally" in the amount of $34,616.73. App. at 61.
Thereafter counsel re-entered his appearance for Front Row Motors and also entered his appearance for Johnson individually. Represented by counsel, defendants moved to set aside the default judgments based on " Imperfect Service of Process." App. at 63. Among other things the motion alleged " the Default Judgment is void as a matter of law" citing Trial Rule 60(B). App. at 66. The trial court conducted a hearing on the ...