Tavitas, J.
Case Summary
Legacy Builders Indiana, Inc. (“Legacy Builders”), and Jonathon D. Douglas (“Douglas”), individually and d/b/a Legacy Builders Indiana, Inc., (collectively, “Defendants”) appeal the trial court’s denial of their motion to set aside a default judgment in favor of Christopher Crocker and Beth Anne Robards-Crocker (the “Crockers”). The trial court held a hearing on Defendants’ motion to set aside the default judgment on the day after the motion was filed without notice to the Defendants and denied the motion to set aside. We conclude that: (1) the trial court abused its discretion by holding a hearing without notice to the Defendants; and (2) the trial court erred by denying the motion to set aside the default judgment where the trial court lacked personal jurisdiction. Accordingly, we reverse and remand.
Issues
Defendants raise two issues, which we restate as:
I. Whether the trial court erred by conducting a hearing on the motion to set aside the default judgment without notice to the Defendants.
II. Whether the trial court erred by denying the motion to set aside the default judgment because the trial court lacked personal jurisdiction due to the Crockers’ failure to serve a summons with the complaint.
….
Here, Defendants alleged that the trial court lacked personal jurisdiction to grant the motion for default judgment due to lack of proper service. Although the trial court held a hearing on the motion to set aside the default judgment, the hearing was held the day after Defendants filed their motion. Defendants were aware that a hearing was scheduled, but the scheduled hearing was for the purpose of addressing the proceedings supplemental, not the motion to set aside. The record contains no indication that Defendants were provided with any notice that the trial court would be hearing their motion to set aside at the same time.
“It is generally acknowledged that procedural due process includes notice and an opportunity to be heard.” Bruno v. Wells Fargo Bank, N.A., 850 N.E.2d 940, 948 (Ind. Ct. App. 2006) (citing Harper v. Boyce, 809 N.E.2d 344, 350 (Ind. Ct. App. 2004)). “[A] party is entitled to be informed of certain subsequent proceedings in order to give it an opportunity to be heard or to defend before the matter is finally concluded.” Abrahamson Chrysler Plymouth, Inc. v. Ins. Co. of North America, 453 N.E.2d 317, 321 (Ind. Ct. App. 1983). Here, Defendants were not provided with notice of the hearing on the motion to set aside and were not given an opportunity to be heard. Accordingly, the trial court abused its discretion by conducting a hearing on Defendants’ motion to set aside the default judgment without notice to Defendants.
….
Here, the record indicates that the Crockers served Defendants with a complaint but failed to file or serve a summons. [Footnote omitted.] Indiana Trial Rule 4(A) provides that the trial court “acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.” Trial Rule 4(B) provides: “Contemporaneously with the filing of the complaint or equivalent pleading, the person seeking service or his attorney shall furnish to the clerk as many copies of the complaint and summons as are necessary.” “The summons and complaint shall be served together unless otherwise ordered by the court.” T.R. 4(E). Our Supreme Court has held that “actual knowledge of the suit does not satisfy due process or give the court in personam jurisdiction.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 817 (Ind. 2012) (quoting Overhauser v. Fowler, 549 N.E.2d 71, 73 (Ind. Ct. App. 1990)).
We note that, under some circumstances, defects in service or a summons may be excused under Trial Rule 4.15(F), which provides: “No 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.” (emphasis added). Because Defendants did not receive a summons, they were not informed of the time within which they were required to respond. Accordingly, the defective service is not excused by Rule 4.15(F).
In Overhauser, this court held that the service of a summons, not accompanied by the complaint, was insufficient to confer personal jurisdiction. 549 N.E.2d at 73. Likewise, here, the service of a complaint, not accompanied by a summons, was insufficient to confer personal jurisdiction. Under these circumstances, the trial court should have granted Defendants’ motion to set aside the default judgment. See, e.g., Hair, 18 N.E.3d at 1025 (holding that the trial court erred by denying a motion to set aside a judgment due to lack of personal jurisdiction).
Conclusion
The trial court abused its discretion by conducting a hearing on Defendants’ motion to set aside without notice to Defendants. Moreover, because the Crockers failed to file a summons with their complaint, the trial court did not acquire personal jurisdiction of the Defendants. The trial court, thus, erred by denying Defendants’ motion to set aside the default judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded. Bradford, C.J., and Crone, J., concur.