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Troxel v. Ward

Court of Appeals of Indiana

September 17, 2018

Timothy C. Troxel, Appellant-Defendant,
v.
Dale Ward, successor in interest to original Plaintiff, Plan Administrators, Inc., Appellee-Plaintiff

          Appeal from the LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge Trial Court Cause No. 46C01-1605-PL-796

          ATTORNEY FOR APPELLANT Kevin E. Steele Burke Costanza & Carberry LLP Valparaiso, Indiana

          ATTORNEY FOR APPELLEE James R. Schrier Reiling Teder & Schrier, LLC Lafayette, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] A Wisconsin corporation obtained a default judgment against Timothy C. Troxel in Wisconsin state court and later sought to enforce that judgment in Indiana. The LaPorte Circuit Court ultimately ordered the sale of Troxel's stock in an Indiana corporation to satisfy the Wisconsin judgment. Upon learning of the sale of his stock, Troxel filed a motion to set aside the sale pursuant to Indiana Trial Rule 60(B). Because Troxel was not properly served with notice of the Wisconsin lawsuit, the Wisconsin court did not have personal jurisdiction over him. Accordingly, the Wisconsin judgment and any Indiana orders based upon it are void. We therefore reverse the trial court's denial of Troxel's Trial Rule 60(B) motion.

         Facts and Procedural History

         [¶2] In late 2013 or early 2014, Troxel moved from Indiana to Florida. See Appellant's App. Vol. II pp. 77 (Troxel's affidavit stating that he has been a Florida resident since December 2013), 11 (trial court's order stating that Troxel became a Florida resident in 2014); Tr. p. 19 (Troxel testifying that in late 2013, he bought a condo in Florida and "intended to stay there"). In November 2014, Plan Administrators, Inc., a Wisconsin corporation with its principal place of business in Wisconsin, filed a lawsuit against Troxel and WK Payroll, Inc. (Troxel's company) in Wisconsin state court. The complaint alleged that in 2013 WK Payroll executed a promissory note agreeing to pay Plan Administrators $653, 000, Troxel executed a guaranty for the $653, 000 promissory note, WK Payroll breached the promissory note by failing to make payments, and Plan Administrators was accelerating the amount due. The complaint also alleged:

Timothy Troxel is an adult resident of the state of Indiana. His address is unknown but he utilizes P.O. Box 637, Franc[e]sville, Indiana 47946 as his mail box for delivery of mail, notices and the like.

Appellant's App. Vol. II p. 83.[1] On December 29, 2014, Plan Administrators left a copy of the summons and complaint for Troxel and WK Payroll at 106 E. Montgomery Street in Francesville, Indiana. According to Troxel, he owned a company called ASI Property Management and that company owned the brick building at 106 E. Montgomery Street from "2003 until roughly 2015," when it was foreclosed. Tr. p. 14.

         [¶3] When neither WK Payroll nor Troxel responded to the Wisconsin lawsuit, Plan Administrators filed a motion for default judgment in April 2015 alleging that the complaint and summons "were properly served on [WK Payroll and Troxel] on December 29, 2014" and they have "failed to answer or otherwise respond." Appellant's App. Vol. II p. 153.[2] In support, Plan Administrators filed, among other things, an Affidavit of Service explaining how service was attempted on Troxel in Indiana. The Affidavit of Service, executed by the process server, provides:

         (Image Omitted)

         Id. at 159.[3] A second affidavit from the process server similarly provides:

4 attempts made [at 106 E. Montgomery Street] with no evidence of occupancy-neighbors, businesses & city offices were canvassed and opinion of those persons is that defendant moved when his ...

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