Timothy C. Troxel, Appellant-Defendant,
Dale Ward, successor in interest to original Plaintiff, Plan Administrators, Inc., Appellee-Plaintiff
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.
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.
and Procedural History
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. 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.
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. 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:
at 159. A second affidavit from the process server
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 ...