MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 05 2017, 8:29 am
court except for the purpose of CLERK
Indiana Supreme Court
establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce P. Clark Duke T. Escue
Bruce P. Clark & Associates Walter J. Alvarez
Saint John, Indiana Walter J. Alvarez, P.C.
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Menard, Inc., May 5, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1606-CT-1283
v.
Appeal from the Lake County
Reba Lane, Circuit Court
Appellee-Plaintiff The Honorable George Paras,
Judge;
The Honorable Robert Vann,
Magistrate
Trial Court Cause No.
45C01-1308-CT-128
May, Judge.
Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
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[1] Menard, Inc. requests rehearing of our decision in Menard, Inc. v. Lane, 68
N.E.3d 1106 (Ind. Ct. App. 2017), arguing our court erred when it reviewed the
trial court’s decision to deny Menard’s motion to set aside judgment under the
abuse of discretion standard of review because “[a]lthough appropriate for the
other aspects of the Appeal, this was not the appropriate review for the issues
surrounding sufficiency of service.” (Br. of Appellant on Rehearing at 13.)
Menard is correct the language does not accurately reflect the standard of
review, and we grant rehearing to revise language we used in the opinion.
[2] In Menard, we began our analysis of the trial court’s denial of Menard’s Trial
Rule 60(B) motion by stating we “review a trial court’s denial of a motion to set
aside judgment for an abuse of discretion.” Menard, 68 N.E.3d at 1109 (quoting
LePore v. Norwest Bank Indiana, N.A., 711 N.E.2d 1259, 1264 (Ind. 1999)). As
Menard had requested relief from the default judgment in favor of Lane based
first on Menard’s allegation the judgment was void as a result of inadequate
service of process, we then narrowed our focus to Trial Rule 60(B)(6), which
allows relief from a default judgment if the challenged judgment is void for lack
of service of process. In that instance, a “trial court has no discretion on how to
rule on a Trial Rule 60(B)(6) motion once a judgment is determined to be either
void or valid.” Id. at 1109 (quoting Anderson v. Wayne Post 64, 4 N.E.3d 1200,
1205 (Ind. Ct. App. 2014), trans. denied).
[3] After applying the trial rules that control service of process to the facts of this
case and distinguishing the cases cited by Menard, we concluded our analysis of
the issue by writing:
Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
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Sergeant Coubal followed the letter of Trial Rule 4.1(B) as
evidenced by the copy of the summons with the stamp indicating
he delivered the summons and complaint, and the return receipt
for the copy of the summons and complaint sent by certified
mail; thus, we cannot say the trial court abused its discretion
when it denied Menard’s motion to set aside default judgment
based on the adequacy of Lane’s service of process.
Id. at 1101.
[4] As Menard argues on rehearing, we should not have used the phrase “abuse of
discretion” in that context, because “if a judgment is valid, the trial court
cannot declare it void and the motion [under Trial Rule 60(B)(6)] must be
denied.” Anderson v. Wayne Post 64, 4 N.E.3d 1200, 1205 (Ind. Ct. App. 2014),
trans. denied. Instead, the end of that paragraph should have read:
Sergeant Coubal followed the letter of Trial Rule 4.1(B), as
evidenced by the copy of the summons with the stamp indicating
he delivered the summons and complaint and the return receipt
for the copy of the summons and complaint sent by certified
mail. Thus, Lane’s service of process was adequate and the default
judgment is valid. The trial court correctly denied Menard’s motion to
set aside default judgment based on the adequacy of Lane’s service of
process.
[5] We grant rehearing to revise only that language and affirm the original result in
all other respects.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana |Memorandum Decision on Rehearing 45A03-1606-CT-1283 | May 5, 2017
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