Court of Appeals of Indiana | Memorandum Decision 49A02-1603-OV-681| November 30, 2016 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Kenneth Slate

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Brian J. Paul

Daniel E. Pulliam

Faegre Baker Daniels LLP

Indianapolis, Indiana

Amy B. Jones

Silvia B. Miller

Health and Hospital Corporation 

of Marion County 

Public Health Division

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenneth Slate,

Appellant-Defendant,

v.

The Health and Hospital 

Corporation of Marion County, 

Indiana, Public Health Division,

Appellee-Plaintiff.

November 30, 2016

Court of Appeals Case No.

49A02-1603-OV-681

Appeal from the Marion Superior 

Court

The Honorable Cynthia J. Ayers, 

Judge

Trial Court Cause No.

49D04-1411-OV-66215

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-OV-681| November 30, 2016 Page 2 of 10

Statement of the Case

[1] Kenneth Slate appeals the trial court’s denial of his Trial Rule 60(B) motion to 

set aside the court’s judgment against Litton Mortgage Servicing Center 

(“Litton”). Slate presents six issues on appeal, but, we address the following 

two dispositive issues:

1. Whether the trial court had personal jurisdiction over 

Slate.

2. Whether the trial court violated Slate’s right to due 

process.

We affirm.1

Facts and Procedural History 

[2] In a citation dated July 16, 2013, The Health and Hospital Corporation of 

Marion County, Indiana, Public Health Division (“HHC”) alleged that Litton 

had violated the Code of the Health and Hospital Corporation of Marion 

County (“the Code”) by failing to keep the exterior of its residence at 4352 

North Kitley Avenue in Marion County (“the residence”) clear of “scattered 

rubbish,” “large rubbish and junk,” and a “refrigerator with doors.” 

Appellant’s App. at 17. Because Litton had still not remedied the violations, on 

 

1

 We have consolidated four of the issues raised in Slate’s brief on appeal into the two stated issues. Slate 

also raises a substantive challenge to the judgment underlying his Trial Rule 60(B) motion. Because we hold 

that the trial court did not err when it denied that motion, we do not reach the merits of the underlying 

judgment. Slate also argues that his Trial Rule 60(B) motion should have been granted under subsection (1). 

But, as we note below, his motion under Trial Rule 60(B)(1) was not timely.
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November 12, 2014, HHC filed a complaint against Litton alleging that Litton 

had not complied with the terms of the citation and had not paid a $100 fine 

and seeking a permanent injunction enjoining Litton “from allowing the 

property . . . to be in violation of Chapter 10 of The Code. . . .” Id. at 10. HHC 

served Litton by service on its registered agent, Slate, who resided at the 

residence. During a hearing on the complaint on December 23, 2014, Slate 

appeared, pro se, and he attempted to explain his involvement in the 

proceedings as follows:

Court: Okay. And are you here representing Litton 

Mortgage Service Center?

Slate: No.

* * *

Slate: They—I don’t even think they exist.

HHC: Judge, he’s listed as the own—

Court: —bring me up to speed?

HHC: —as the registered agent for this entity who’s listed 

as the owner of record.

Court: Okay.

Slate: My brother paid it all, and then I don’t know what 

happened there—is why there’s still on there [sic].

Court: Alright. . . . And this is in regards to property 

[located at] 4352 North Kitley Avenue, correct?
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HHC: Yes, ma’am.

Court: Alright. What’s your relationship with that 

property, Mr. Slate?

Slate: I’s [sic] live there.

Court: Okay. And who do you make your payments to?

* * *

Slate: My brother. He paid it off to them twenty years 

ago, and he told me I could live there until I died.

* * *

Court: Apparently [Litton is] still the registered owner of 

record . . . .

* * *

Court: . . . and you are listed as the registered agent which 

means you’re the person who gets any notices—

Slate: Right.

Court: —um, regarding the property. So that’s why you’re 

here today.

Slate: Right. I agree with you.
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Tr. at 4-6.2 At the hearing, HHC presented evidence that it had: inspected the 

residence on April 25, 2013, and issued a notice of violation; reinspected the 

residence on July 16, 2013, and issued a citation; reinspected the residence on 

December 22, 2014, and observed that “some violations [were] remedied, but 

many still remain[ed].” Appellant’s App. at 18. Slate testified that he had 

“removed 3 tons of material from the property” but could not afford to 

complete the clean-up. Id. At the conclusion of the hearing, the trial court 

entered judgment in favor of HHC on its complaint, ordered Slate to pay the 

$100 citation to HHC, issued a “clean & lien for [the] property,” and issued a 

permanent injunction “that [the defendant] shall not violate Chapter 10 of the 

Code.” Id.

[3] On August 7, 2015, Slate filed an answer and asserted affirmative defenses. 

And on February 18, 2016, Slate filed a Trial Rule 60(B) motion to set aside the 

December 23, 2014, judgment against Litton. In that motion, Slate alleged, 

among other things, that the trial court’s judgment against him was void for 

 

2

 On appeal, HHC argues that we should dismiss this appeal because Slate was not a party below and is not 

a party on appeal. While it appears that Slate was not a named party below and did not move to intervene in 

this action, the transcript shows that both the trial court and HHC treated Slate as though he was at least one 

“responsible” party. Tr. at 21. Indeed, the trial court ordered Slate, not Litton, to pay the $100 fine to HHC 

and ordered Slate to clean up the property. Dismissing this appeal on the grounds propounded by HHC 

would elevate form over substance, which we will not do. See Estate of Helms v. Helms-Hawkins, 804 N.E.2d 

1260, 1266-67 (Ind. Ct. App. 2004), trans. denied.
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lack of personal jurisdiction and for a violation of his right to due process.

3

 On 

March 9, the trial court denied Slate’s motion. This appeal ensued.

Discussion and Decision

Standard of Review

[4] Indiana Trial Rule 60(B) provides in pertinent part: “On motion and upon such 

terms as are just the court may relieve a party or his legal representative from an 

entry of default, final order, or final judgment, including a judgment by default, 

for the following reasons: . . . (6) The judgment is void[.]” Normally, this court 

employs an abuse of discretion standard in reviewing a trial court’s ruling on a 

motion to set aside a judgment. D.L.D. v. L.D., 911 N.E.2d 675, 678 (Ind. Ct. 

App. 2009), trans. denied. However, when a motion for relief from judgment is 

made pursuant to Trial Rule 60(B)(6), alleging that the judgment is void, we 

review the trial court’s judgment de novo because either the judgment is void or 

it is valid. Id.

 

3

 Slate also contends that the trial court should have set the judgment aside under Trial Rule 60(B)(1), which 

provides in relevant part that a trial court may set aside a judgment on the basis of “surprise.” But that 

subsection requires that a party’s motion to set aside be filed within one year of the judgment, and Slate did 

not timely file his motion under that subsection. T.R. 60(B). However, Slate’s motion under Trial Rule 

60(B)(6) was timely. See Stidham v. Whelchel, 698 N.E.2d 1152, 1156 (Ind. 1998) (holding “a judgment that is 

void for lack of personal jurisdiction may be collaterally attacked at any time and that the ‘reasonable time’

limitation under Rule 60(B)(6) means no time limit).
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Issue One: Personal Jurisdiction

[5] Slate first contends that the trial court’s December 23, 2014, judgment is void 

for lack of personal jurisdiction. In particular, Slate maintains that

[he] had no time to even talk to a lawyer before the hearing, let 

alone prepare [his] meritorious defense. [He] did not voluntarily 

go to court on December 23rd but went because the summons 

ordered [him] to go there or face bad consequences. [He] did not 

even have time to finish reading all the legal papers [he] had 

found behind [his] door and just barely found the Courthouse in 

time for the hearing. Without legal advice, [he] had to go to 

court having no idea what terms like due process, jurisdiction, 

service of process or appeal meant and what would happen at the 

hearing. [He] was physically at the hearing but not mentally 

legally there. [He] filed no Answer or Appearance Form or even 

knew what they were.

Appellant’s Br. at 21 (citations omitted). HHC responds that the trial court 

obtained personal jurisdiction over Slate when he appeared for the December 

23, 2014, hearing, participated in that hearing, and did not assert lack of 

personal jurisdiction until more than one year after the court entered the 

judgment. We acknowledge Slate’s argument, but we must agree with HHC.

[6] Personal jurisdiction is a question of law. LinkAmerica Corp. v. Cox, 857 N.E.2d 

961, 965 (Ind. 2006). Thus, we review a trial court’s determination regarding 

personal jurisdiction de novo. Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1055 

(Ind. Ct. App. 2006). A plaintiff is responsible for presenting evidence of a 

court’s personal jurisdiction over the defendant, but the defendant ultimately 
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bears the burden of proving the lack of personal jurisdiction by a preponderance 

of the evidence, unless that lack is apparent on the face of the complaint. Id.

[7] A defendant can waive the lack of personal jurisdiction and submit himself to 

the jurisdiction of the court if he responds or appears and does not contest the 

lack of jurisdiction. Id. Here, Slate appeared at the December 23, 2014, 

hearing on HHC’s complaint and participated in the hearing. At no time did 

Slate challenge the trial court’s personal jurisdiction over him. It was not until 

more than one year later when, in his motion to set aside judgment, Slate 

alleged that the trial court lacked personal jurisdiction over him and the 

judgment was void under Trial Rule 60(B)(6). 

[8] We hold that, because Slate appeared at the December 23, 2014, hearing and 

did not contest the trial court’s jurisdiction over his person at that time, Slate 

waived his claim of lack of personal jurisdiction and submitted himself to the 

jurisdiction of the court. Accordingly, the trial court did not err when it denied 

Slate’s motion to set aside the judgment as void for lack of personal jurisdiction.

Issue Two: Due Process

[9] Slate also contends that, while a Sheriff’s deputy left a copy of the complaint 

and summons at his residence, Slate did not find those documents until the day 

before the December 23, 2014, hearing. Slate maintains that he was 

“prejudiced and harmed by not receiving the summons and complaint through 

the mail” and that the “lack of adequate notice time was [a] due process 

violation.” Appellant’s Br. at 18-19. And, citing World-Wide Volkswagon Corp. 
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v. Woodson, 444 U.S. 286, 291 (1980), Slate argues that “[a] judgment rendered 

in violation of the Due Process Clause of the Fourteenth Amendment to the 

U.S. Constitution is void.” Appellant’s Br. at 19.

[10] As we stated in Munster v. Groce, 829 N.E.2d 52, 58 (Ind. Ct. App. 2005),

[i]n the seminal case regarding due process and notice, the 

Supreme Court held that the Due Process Clause requires at a 

minimum “that deprivation of life, liberty or property by 

adjudication be preceded by notice and opportunity for hearing 

appropriate to the nature of the case.” Mullane v. Central Hanover 

Bank & Trust Co., 339 U.S. 306, 313 (1950). “This right to be 

heard has little reality or worth unless one is informed that the 

matter is pending and can choose for himself whether to appear 

or default, acquiesce or contest.” Id. at 314. “An elementary and 

fundamental requirement of due process in any proceeding which 

is to be accorded finality is notice reasonably calculated, under all 

the circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their 

objections.” Id. “[W]hen notice is a person’s due, process which 

is a mere gesture is not due process. The means employed must 

be such as one desirous of actually informing the absentee might 

reasonably adopt to accomplish it.” Id. at 315.

[11] Here, Slate actually received notice and appeared at the December 23 hearing,

and he did not move to continue the hearing. Slate has not shown that he was 

denied an opportunity to present any objections at that hearing. Id. Moreover,

on appeal, Slate does not demonstrate that the outcome of the hearing would 

have been different if he had had adequate notice. For instance, Slate does not 

explain what he would have done differently had he had more notice of the 
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hearing. Slate cannot show that the trial court’s judgment against him is void 

because of a due process violation.

[12] Affirmed.

Bailey, J., and May, J., concur.