      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be
                                                                              Apr 23 2020, 8:01 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                CLERK
                                                                              Indiana Supreme Court
      the defense of res judicata, collateral                                    Court of Appeals
                                                                                   and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
      Scott A. Norrick                                          Denise E. Hayden
      Anderson, Indiana                                         Lacy Law Office, LLC
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dawn Riddle and Matthew                                   April 23, 2020
      Riddle,                                                   Court of Appeals Case No.
      Appellants-Plaintiffs,                                    19A-PL-1471
                                                                Appeal from the Johnson Superior
              v.                                                Court
                                                                The Honorable Marla Clark, Judge
      Dennis Cress, Haley Wilkerson,                            Trial Court Cause No.
      and Helen Cress,                                          41D04-1810-PL-133
      Appellees-Defendants.



      Shepard, Senior Judge.


[1]   Dawn (“Dawn”) and Matthew (“Matthew”) Riddle (collectively “the Riddles”)

      appeal from the trial court’s order granting a motion to set aside a default

      judgment filed by Dennis Cress (“Dennis”), Helen Cress (“Helen”) and Haley


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020                  Page 1 of 11
      Wilkerson (“Haley”) (collectively, “the Defendants”), contending that the trial

      court erred in granting the motion. We reverse.


                               Facts and Procedural History
[2]   The Riddles filed a complaint on October 20, 2018, alleging that the Defendants

      had committed defamation and false reporting in the course of tendering to the

      Department of Child Services (“DCS”) material designed to denigrate the

      Riddles.


[3]   Dennis and Helen received a summons and service of the complaint on

      November 15, 2018, while Haley received the same on December 20, 2018.

      None of the Defendants appeared or responded to the complaint, and on

      January 25, 2019, the Riddles moved for a default judgment as to each of them

      individually. The trial court granted their request on January 28, 2019.


[4]   On February 21, 2019, the Defendants filed a motion for relief from judgment,

      citing Indiana Trial Rule 60(B)(1). Following a hearing on the motion, the

      court concluded that most of the Defendants’ arguments about excusable

      neglect had been “debunked.” Appellants’ App. Vol. 2, p. 13. It nevertheless

      granted the Defendants relief and set aside the default judgment. This appeal

      followed.


                                                      Issue
[5]   The sole issue on appeal is whether the trial court erred in determining the

      Defendants had demonstrated they were entitled to relief.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 2 of 11
                                    Discussion and Decision
[6]   Indiana Trial Rule 60(B) provides in pertinent part that a “court may relieve a

      party . . . from a judgment, including a judgment by default for the following

      reasons: (1) mistake, surprise, or excusable neglect[.]” Appellate review in the

      area of default judgments is limited. “The decision whether or not to set aside a

      default judgment is committed to the sound discretion of the trial court.” Siebert

      Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983). An abuse of

      discretion occurs when the judgment is clearly against the logic and effect of the

      facts and inferences supporting the judgment, or it is “clearly erroneous.” Bello

      v. Bello, 102 N.E.3d 891, 894 (Ind. Ct. App. 2018).


[7]   “‘The trial court’s discretion is circumscribed and limited by the eight categories

      listed in T.R. 60(B).’” Id. (quoting Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d

      276, 278 (Ind. Ct. App. 2000), trans. denied). These are largely meant “to afford

      relief from circumstances which could not have been discovered” during the

      period a motion to correct error could have been filed. Snider v. Gaddis, 413

      N.E.2d 322, 324 (Ind. Ct. App. 1980). “The burden is on the movant to

      establish grounds for relief” under T.R. 60(B). Ind. Ins. Co., 734 N.E.2d at 279.

      “‘[T]he trial court is required to balance the alleged injustice suffered by the

      party moving for relief against the interests of the winning party and society in

      general in the finality of litigation.’” Bello, 102 N.E.3d at 894 (quoting Indiana

      Ins. Co., 734 N.E.2d at 278-79).




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 3 of 11
[8]   In so doing, “the trial court must consider the unique factual background of

      each case because ‘no fixed rules or standards have been established as the

      circumstances of no two cases are alike.’” Coslett v. Weddle Bros. Constr. Co. Inc.,

      798 N.E.2d 859, 860-61 (Ind. 2003) (quoting Siebert, 446 N.E.2d at 340).

      “Though the trial court should do what is ‘just’ in light of the facts of individual

      cases, that discretion should be exercised in light of the disfavor in which

      default judgments are held.” Id. at 861. “A trial court will not be found to have

      abused its discretion ‘so long as there exists even slight evidence of excusable

      neglect.’” Id. (quoting Sec. Bank & Trust Co. v. Citizens Nat. Bank of Linton, 533

      N.E.2d 1245, 1247 (Ind. Ct. App. 1989), trans. denied).


[9]   The defendants’ motion alleged the following:


              5. That the Defendants neglected to file an Answer to said
              Complaint in a timely fashion based upon the following:

              a. Defendants, [Dennis] and [Helen] were involved in an
              automobile accident in late October 2018. Helen [] sustained
              injuries as a result of said accident. She was briefly hospitalized
              and continued to treat with her physician.

              b. That Defendants, [Dennis] and [Helen] are 75 years of age
              and 66 years of age respectively and are [sic] were not aware that
              an Answer to the Complaint was required to be filed. Through
              the years both Defendants have received certified mail from the
              Plaintiff, [Matt]. The correspondence was routinely sent by
              certified mail by [Matt] and typically contained harassing and
              defamatory assertions about the Defendants, individually, and
              other family members. The Defendants were under the mistaken
              belief the present lawsuit was nothing more than the latest of
              communications from [Matt] which contained similar assertions.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 4 of 11
               c. The Defendants, Helen and [Dennis], were at or near this time
               involved in concluding a Chapter 13 Bankruptcy proceeding.
               The automobile accident as referenced above further complicated
               matters as they were dealing with the Bankruptcy Trustee and
               their insurance carrier related to monies to be received relative to
               replacing their automobile. That the Defendants, Helen and
               [Dennis], were engaged in these negotiations were without
               transportation for a period of time and simply misunderstood
               their respective obligation to answer the Complaint in a timely
               fashion.

               d. That the Defendants, Helen and [Dennis] were selected by the
               Department of Child Services (“DCS”) as placement of the
               Plaintiff’s two children Katie and Megan Riddle in the fall of
               2016 when the children were removed from the home of the
               Plaintiffs. The Defendants mistakenly believed that the
               Complaint was related to the CHINS matter and therefore did
               not require them to answer the Complaint directly.

               e. That [Haley] was moving her primary residence from 9206
               Huntleigh Circle, Plainfield, Indiana to 5629 Mills Rd.,
               Indianapolis [sic] Indiana 46221 between November 3 to
               December 27, 2018. That the Defendant lost track of the
               Complaint in the move and inadvertently failed to answer the
               Complaint in a timely fashion. Further, the Defendant, [Haley],
               was injured on December 3, 2018. Her injury required her to
               attend physical therapy and utilize crutches during her
               convalescence. The Defendant, [Haley], was focused on her
               recovery and not mindful that an answer to the Complaint was
               time sensitive.


       Appellants’ App. Vol. 2, pp. 23-25.


[10]   The hearing testimony contradicts most of the assertions in the motion. Dennis

       and Helen were involved in an accident, but it occurred in September 2018,

       nearly two months before they were served with the complaint. Further, Helen
       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 5 of 11
       was treated at a hospital, but was not hospitalized for her injuries, which did

       not include a concussion. Dennis and Helen each testified that despite the

       mention of their ages in the motion, they were competent.


[11]   Helen testified that she had received only one letter through certified mail from

       Matt and that was the complaint and summons Dennis signed for on November

       14 or 15, 2018. She also agreed that the chronological case summary for the

       bankruptcy case showed that the case was closed on October 31, 2018, and that

       the agreed entry was signed on November 2, 2018. The bankruptcy court order

       indicating that the case was closed was dated November 5, 2018. Although she

       and Dennis were represented by counsel in the bankruptcy proceedings, it did

       not occur to her to have her attorney review the complaint. Registration for the

       vehicle that was bought to replace the one that was totaled in the crash was

       dated October 11, 2018. As for Helen, she testified that after Dennis signed for

       the certified mail for the summons and complaint, she read but “briefly breezed

       through it.” Id. at 38. She also stated that she was aware that an answer

       needed to be filed within twenty days.


[12]   Dennis testified that he signed for the certified mail for both of them, opened

       and read the mail. He said he simply forgot about the letter because of prior

       communication with Matt. Dennis testified that he has not spoken to Matt for

       fifteen years and has had no call, no visits, and no mail from him. When asked

       if he understood the consequences of ignoring a court document, he first stated

       that he is now aware of the consequences. Upon further questioning, Dennis

       stated that prior to his retirement from the police force, he was summonsed into

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 6 of 11
       court approximately 5,000 times. He agreed that when those to whom he

       issued a ticket failed to appear, there was the consequence of re-arrest.


[13]   Regarding Haley’s defense, she testified that she received the complaint in

       December and did not immediately open it because she claimed that Matt had

       sent multiple certified letters to Helen and Dennis, her grandparents. Despite

       claiming that she lost track of the complaint in the move, she stated that later in

       December she read the complaint and was aware of the summons. Id. at 6. She

       understood that she was required to respond within a certain timeframe. Id.

       Haley did not contact a lawyer about the complaint because she believed Matt

       was asserting a “bogus” claim. Tr. p. 6. She said that she turned her attention

       to the complaint only after receiving a letter that the case was “defaulted,” and

       she was ordered to appear. Id. at 7.


[14]   In the motion for relief, Haley had claimed that she neglected to answer the

       complaint because: (1) she was moving and lost track of it; (2) she was

       changing residences; and (3) had to recover and rehabilitate from an injury,

       which required her to use crutches. Haley testified, however, that even though

       she was injured and used crutches, she was able to continue working two jobs

       and found rides to and from work. At one of her jobs, she had access to a

       computer with internet service. She stated that her injuries did not prevent her

       from working and from moving her belongings. Further, Haley had never

       received any mail from the Riddles in the past. She was aware the summons

       and complaint were official court documents but failed to respond.



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 7 of 11
[15]   Rule 60(B) requires that a movant filing a motion under subsection 1 must also

       allege a meritorious claim or defense. Matt testified that the underlying case

       with DCS, which was based at least in part on Haley’s assertions, vindicated

       him and that the case was dismissed and ordered expunged. Matt filed the

       complaint against the defendants in an effort to clear his name and that of his

       children.


[16]   The trial court found that the defendants filed their motion less than 30 days

       after the judgment was entered and that there were complications in their

       personal lives such that they did not respond to the complaint. The court also

       found as follows:

               While Plaintiffs debunked most of the specific reasons Defendants set
               forth, the Court was nonetheless left with the impression that
               Defendants, unsophisticated and unrepresented by counsel, were
               sincerely confused about their obligation to respond. Moreover,
               the animosity between the parties was readily apparent during
               the hearing. This animosity may have contributed to the
               Defendants’ misunderstanding of their responsibilities with
               regard to the Complaint and Summons.


       Appellants’ App. Vol. 2, p. 13 (emphasis added).


[17]   The court further found that Helen and Dennis testified that they made no

       statement to the DCS prior to the removal of the children. The court observed

       that Haley made a statement to the DCS, but her statement was based on

       communication from another person. Therefore, the court concluded, there

       was a sufficient showing of a meritorious defense that should be heard.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 8 of 11
       Further, the court found that the amount of damages, if any, would be a “hotly

       contested issue” and that the court did not wish to determine damages when the

       issue of liability was decided by default. Id.


[18]   Based on our standard of review, we conclude that the trial court abused its

       discretion in setting aside the default judgment. The court acknowledged that

       most of the specific reasons set forth in the motion were “debunked,” but

       concluded that the defendants were “sincerely confused about their obligation

       to respond.” Id. Here, the record reflects that the defendants were aware of

       their obligation to respond but chose not to do so, offering explanations in their

       motion that were disproven at the hearing. As the Supreme Court said in

       Smith, 711 N.E.2d at 1262, “This is neglect, but not excusable neglect as the

       term appears in Rule 60(B)(1).”


                                                 Conclusion
[19]   In light of the foregoing, we reverse and remand this matter to the trial court for

       further action on the merits.


[20]   Judgment reversed and remanded.


       Pyle, J., concur.


       Riley, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 9 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Dawn Riddle and Matthew                                   Court of Appeals Case No.
       Riddle,                                                   19A-PL-1471

       Appellants-Plaintiffs,

               v.

       Dennis Cress, Haley Wilkerson,
       and Helen Cress,
       Appellees-Defendants.



       Riley, Judge dissenting




[21]   I respectfully dissent from the majority’s opinion reversing the trial court’s

       judgment setting aside the default judgment entered against Defendants because

       the majority did not find there to be excusable neglect as required pursuant to

       Indiana Trial Rule 60(B)(1).

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020        Page 10 of 11
[22]   As acknowledged by the majority’s opinion, when deciding whether or not a

       default judgment may be set aside because of excusable neglect, the court must

       consider the unique factual background of each case because no fixed rules or

       standards have been established as the circumstances of no two cases are alike.

       Coslett v. Weddle Bros. Contr. Co., 798 N.E.2d 859, 860-61 (Ind. 2003). Looking

       at the particular circumstances before it, the trial court noted the complications

       in Defendants’ personal lives, and touched upon its prerogative of determining

       the credibility of witnesses by observing its impression that Defendants,

       unsophisticated and unrepresented by counsel, were sincere in their confusion

       about their obligations in these proceedings.


[23]   On appeal, a trial court’s decision to set aside a default judgment is entitled to

       deference and is reviewed for an abuse of discretion. Id. Any doubt of the

       propriety of a default judgment should be resolved in favor of the defaulting

       party. Id. As such, a trial court will not be found to have abused its discretion

       so long as there exists even slight evidence of excusable neglect. Id. Cognizant

       of the individualized circumstances and the parties’ testimony, I cannot

       conclude that the trial court’s judgment, setting aside the default judgment, is

       clearly against the logic and effect of the facts and inferences supporting its

       judgment. See Bello v. Bello, 102 N.E.3d 891 (Ind. Ct. App. 2018).




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1471 | April 23, 2020   Page 11 of 11
