Court of Appeals of Indiana | Memorandum Decision 29A05-1508-CC1215 | December 28, 2015 Page 1 of 8

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.

ATTORNEYS FOR APPELLANT

Mario Garcia

Christopher H. Weintraut

Brattain Minnix Garcia

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

David J. Jurkiewicz

Nathan T. Danielson

Bose McKinney & Evans LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mikhail Goloverya,

Appellant-Defendant,

v.

Nextgear Capital, Inc.,

Appellee-Plaintiff.

December 28, 2015

Court of Appeals Case No.

29A05-1508-CC-1215

Appeal from the Hamilton Superior 

Court

The Honorable Steven R. Nation, 

Judge

Cause No. 29D01-1501-CC-141

Bradford, Judge.

Case Summary

[1] In 2013, Appellee-Plaintiff Nextgear Capital, Inc. made a commercial loan 

(“the Loan”) in the amount of $100,000.00 to G Auto Sales, Inc., of which 

Appellant-Defendant Mikhail Goloverya was president. Goloverya had 
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recently executed an individual guaranty (“the Guaranty”) in favor of Nextgear 

in which he guaranteed payment of G Auto Sales’s liabilities to Nextgear. G 

Auto Sales defaulted on the Loan, and Nextgear filed a complaint seeking to 

enforce the Guaranty against Goloverya. Nextgear caused the trial court clerk 

to serve the complaint on Goloverya at an address on Grasshopper Street in

Warminster, Pennsylvania (“the Grasshopper Address”), the address 

Goloverya provided in connection with the Loan and listed on the Guaranty. 

[2] The complaint and summons were sent to the Grasshopper Address and signed 

for by Goloverya’s mother. Goloverya received the complaint and summons 

within a week afterwards, and telephoned an attorney for Nextgear and 

informed him that he had received them. Nextgear made no further attempts at 

service, and Goloverya did not respond to the complaint in the trial court. Over 

thirty days later, Nextgear filed its motion for default judgment. The trial court 

entered judgment in favor of Nextgear, and, after Goloverya’s attempt to appeal 

was untimely, he filed a motion to set aside the judgment, which the trial court 

denied. Goloverya appeals, contending that the judgment in favor of Nextgear 

is void for lack of personal jurisdiction due to legally deficient service of the 

complaint and summons. We affirm. 

Facts and Procedural History

[3] In August of 2013, Goloverya, who operated G Auto Sales in New Jersey, 

executed the Guaranty in favor of Nextgear guaranteeing certain of G Auto 

Sales’s obligations to Nextgear. The Guaranty listed the Grasshopper address 
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as the address to which notices to Goloverya were to be sent. In September of 

2013, G Auto Sales obtained the Loan, in the amount of $100,000.00, from 

Nextgear, an obligation subject to the Guaranty. 

[4] As of December 31, 2014, G Auto Sales had defaulted on the Loan and owed 

$284,717.02. On January 9, 2015, Nextgear filed suit against Goloverya on the 

Guaranty. Nextgear sent copies of the complaint and summons to the 

Grasshopper address via certified or registered mail. On January 13, 2015, the 

complaint and summons were received at the Grasshopper Address and signed 

for by Goloverya’s mother. On January 20, 2015, an attorney for Nextgear 

received a telephone call from Goloverya, in which he admitted that he had 

received the complaint and summons. Nextgear made no further attempts to 

serve Goloverya with copies of the complaint and summons. Goloverya, 

however, filed no response to the complaint at this point. 

[5] On February 20, 2015, Nextgear moved for default judgment, and the trial 

court entered default judgment in favor of Nextgear on February 27, 2015. On 

March 28, 2015, Goloverya filed a notice of appeal, which this court dismissed 

on April 16, 2015. On June 17, 2015, Goloverya filed a motion to set aside 

judgment pursuant to Indiana Trial Rule 60, which the trial court denied on 

July 27, 2015. 

Discussion and Decision
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[6] Goloverya contends that the trial court lacked personal jurisdiction over him 

because he was not properly served. Indiana Trial Rule 4.1 governs service on 

individuals and provides, in part, that 

[s]ervice may be made upon an individual, or an individual 

acting in a representative capacity, by ... sending a copy of the 

summons and complaint by registered or certified mail or other 

public means by which a written acknowledgment of receipt may 

be requested and obtained to his residence, place of business or 

employment with return receipt requested and returned showing 

receipt of the letter[.]

[7] Moreover, as we have explained, 

“Personal jurisdiction is the court’s power to bring a person into 

its adjudicative process and render a valid judgment over a 

person.” Keesling v. Winstead, 858 N.E.2d 996, 1000 (Ind. Ct. 

App. 2006) (citation omitted). Without effective service of 

process, a trial court does not obtain personal jurisdiction over a 

defendant. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. 

App. 2008). “The existence of personal jurisdiction over a 

defendant is ... a constitutional requirement to rendering a valid 

judgment, mandated by the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution.” 

Munster v. Groce, 829 N.E.2d 52, 57 (Ind. Ct. App. 2005). Once 

the party contesting jurisdiction, usually the defendant, 

challenges the lack of personal jurisdiction, the plaintiff must 

present evidence of a court’s personal jurisdiction over the 

defendant, but “the defendant ultimately 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.” LePore v. Norwest Bank Indiana, N.A., 860 N.E.2d 

632, 634 (Ind. Ct. App. 2007). 

Norris v. Pers. Fin., 957 N.E.2d 1002, 1006-07 (Ind. Ct. App. 2011). 
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[8] In this case, Goloverya’s challenge to personal jurisdiction arises in the context 

of the trial court’s denial of his motion for relief from judgment. Trial Rule 

60(B) provides, in relevant part, as follows: “On motion and upon such terms 

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

judgment, including a judgment by default, for the following reasons: ... the 

judgment is void[.]” A judgment rendered where service of process was 

inadequate is void for want of personal jurisdiction. See Stidham v. Whelchel, 

698 N.E.2d 1152, 1155 (Ind. 1998). 

When a defendant argues a lack of personal jurisdiction, the 

plaintiff must present evidence to show that there is personal 

jurisdiction over the defendant. Anthem Ins. Companies, Inc. v. 

Tenet Healthcare Corp., 730 N.E.2d 1227, 1231 (Ind. 2000). The 

defendant ultimately bears the burden of proving the lack of 

personal jurisdiction by a preponderance of the evidence, unless 

the lack of jurisdiction is apparent on the face of the complaint. 

Id. The existence of personal jurisdiction over a defendant is a 

question of law and a constitutional requirement to rendering a 

valid judgment, mandated by the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution. Id. at

1237. Thus, we review a trial court’s determination regarding 

personal jurisdiction de novo. Id. at 1238. To the extent a trial 

court may make findings of jurisdictional facts, these findings are 

reviewed for clear error if they were based on in-court testimony. 

Id. at 1238. If, however, only a paper record has been presented 

to the trial court, we are in as good a position as the trial court to 

determine the existence of jurisdictional facts and will employ de 

novo review as to those facts. Id. at n. 12.

Munster, 829 N.E.2d at 57. Here, we have been provided with a paper record 

and will therefore review relevant jurisdictional facts de novo. 
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[9] Goloverya contends that Nextgear rendered inadequate service of process 

because it sent the complaint and summons to the Grasshopper address, which 

is not his residence. It is undisputed that the Grasshopper address was not 

Goloverya’s residence at the relevant time, so Nextgear’s attempt to serve 

Goloverya did not comply with the requirements of Trial Rule 4.1. Nextgear, 

however, argues that any defect in service was cured. Trial Rule 4.15(F) 

provides that “[n]o summons or the service thereof shall be set aside or be 

adjudged insufficient when either is reasonably calculated to inform the person 

to be served that an action has been instituted against him, the name of the 

court, and the time within which he is required to respond.” The question, 

then, is whether service at the Grasshopper address was reasonably calculated 

to inform Goloverya of the lawsuit. Under the circumstances of the case, we 

conclude that it was. 

[10] Nextgear mailed the complaint and summons to the Grasshopper address, 

which had been specifically provided by Goloverya as the address for notices 

pursuant to the Guaranty approximately eighteen months previously. Despite 

being in a contractual relationship with Nextgear, Goloverya never notified 

Nextgear that he had moved. One week after the complaint and summons 

were received at the Grasshopper address, Goloverya notified Nextgear’s 

counsel that he was in actual possession of the complaint and summons. In our 

view, this last fact is of particular importance. We have explained that 

“although actual notice alone will not cure defective service, it may be 

considered in determining whether the notice was reasonably calculated to 
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inform an organization of the action.” Nw. Nat. Ins. Co. v. Mapps, 717 N.E.2d 

947, 955 (Ind. Ct. App. 1999). See also Matter of Paternity of R.L.W., 643 N.E.2d 

367, 369 (Ind. Ct. App. 1994) (“However, the actual knowledge of the person 

served is relevant and probative to an inquiry into the likely efficacy of the 

service employed.”). 

[11] In so concluding, we conclude that Mills v. Coil, 647 N.E.2d 679 (Ind. Ct. App. 

1995), trans. denied, on which Goloverya relies, is distinguishable. In that case, 

Mills and Coil were involved in a traffic accident, and Mills filed suit

approximately two years later, serving Coil at Coil’s Fort Wayne address. Id. at 

679-80. Coil, however, had moved to Ohio three months previously with no 

intention of returning. Id. at 680. 

[12] We rejected Mills’s argument that his service was reasonably calculated to 

provide notice, noting that “[s]ervice upon a defendant’s former residence is 

insufficient to confer personal jurisdiction.” Id. at 681 (citing Poteet v. Bethke, 

507 N.E.2d 652, 654 (Ind. Ct. App. 1987)). In rejecting Mill’s argument, we 

identified the following fact as particularly relevant: “Mills served Coil at a 

two-year-old address without any independent reason to suspect Coil might still 

be there.” Id. at 681. 

[13] This case is distinguishable from Mills, because of the prior relationship between 

the parties and Goloverya’s actual notice of the lawsuit. Although Nextgear 

used an eighteen-month-old address, it was an address provided by Goloverya 

himself as required by the terms of the Guaranty. Because of their contractual 
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relationship with Goloverya, we conclude that Nextgear had more reason to 

rely on the Grasshopper address’s accuracy and currency than would a party 

that had no previous relationship with the other party, as apparently was the 

case in Mills. Moreover, Goloverya notified Nextgear’s counsel of his 

possession of the summons and complaint, which is evidence that Nextgear’s 

method was reasonably calculated to provide Goloverya with notice.1 Under 

the totality of circumstances in this case, we conclude that Nextgear’s service on 

the Grasshopper address was reasonably calculated to provide notice to 

Goloverya. Consequently, the trial court properly denied Goloverya’s motion 

to set aside the default judgment against him. 

[14] The judgment of the trial court is affirmed. 

Baker, J., and Pyle, J., concur. 

 

1

 We think it would be somewhat absurd to punish Nextgear for not making further attempts at service once 

Goloverya informed it that he had the summons and complaint. Our caselaw frequently stresses the exercise 

of diligence in service cases, which is perfectly understandable. See, e.g., Munster v. Groce, 829 N.E.2d 52, 61 

(Ind. Ct. App. 2005) (“Harris’ bare-bones affidavit [of diligence in attempting service] does not permit the 

conclusion that due diligence was used to locate Groce’s current whereabouts, or that service via the 

Secretary of State, using an address that apparently was known to be invalid, was reasonably calculated to 

provide Groce notice of this lawsuit.”). We believe, however, that there are few attorneys who would have 

pursued the matter further under the circumstances of this case.