MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
                                                                            Jun 24 2019, 7:05 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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Preeti (Nita) Gupta                                      Dustin R. DeNeal
Indianapolis, Indiana                                    Carl A. Greci
                                                         Louis T. Perry
                                                         Faegre Baker Daniels, LLP
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Thomaston,                                       June 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-MF-2397
        v.                                               Appeal from the Marion Superior
                                                         Court
U.S. Bank National Association,                          The Honorable Burnett Caudill,
Appellee-Plaintiff.                                      Jr., Judge Pro Tem
                                                         Trial Court Cause No.
                                                         49D01-1607-MF-23685



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MF-2397 | June 24, 2019                           Page 1 of 5
[1]   Gregory Thomaston (“Thomaston”) appeals the Marion Superior Court’s

      denial of his Motion to Set Aside Default Judgment. Concluding that the trial

      court did not abuse its discretion, we affirm.


                                 Facts and Procedural History
[2]   U.S. Bank National Association (“U.S. Bank”) filed a foreclosure complaint

      against Thomaston on June 23, 2016. On September 12, 2016, U.S. Bank filed a

      motion for default. Also on September 12, 2016, Thomaston signed a filing

      requesting a settlement conference. This request for a settlement conference was

      not filed until September 19, 2016. In the interim, on September 16, 2016, the

      trial court granted U.S. Bank’s motion for default judgment. A docket entry

      from October 6, 2016, reads “[n]o action taken on the Request for Settlement

      Conference as default judgment has been entered. Either party may file a

      Motion to Set Aside the Judgment.” Appellant’s App. p. 4. Between this entry

      and January 15, 2018, U.S. Bank filed three praecipes for sheriff sales. No other

      action in the matter was taken during this time period.


[3]   Over a year after default judgment was entered, on January 15, 2018,

      Thomaston filed a Motion to Set Aside the Default Judgment. U.S. Bank filed

      its response the very next day. After several continuances so the parties could

      engage in settlement negotiations, and a dispute over whether Thomaston could

      conduct discovery, a hearing on the motion to set aside the judgment was held

      on September 13, 2018. The trial court entered an order denying the motion on

      the same day. Thomaston now appeals.


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-2397 | June 24, 2019   Page 2 of 5
                                     Discussion and Decision

[4]   “The decision of whether to set aside a default judgment is committed to the

      sound discretion of the trial court.” Whitt v. Farmer’s Mutual Relief Ass’n, 815

      N.E.2d 537, 539 (Ind. Ct. App. 2004) (citing Tardy v. Chumrley, 658 N.E.2d

      959, 961 (Ind. Ct. App. 1995), trans. denied). Our review is limited to

      determining whether the trial court has abused its discretion. Id. “An abuse of

      discretion occurs if the decision is clearly against the logic and effect of the facts

      and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103, 107 (Ind.

      2016). We do not reweigh the evidence. Gipson v. Gipson, 644 N.E.2d 876, 877

      (Ind. 1994).


[5]   Indiana Trial Rule 60(B)(8) allows for a judgment to be set aside “for any

      reason justifying relief from operation of the judgment[.]” Any claim filed

      pursuant to T.R. 60(B)(8) must be filed within a reasonable period of time after

      the judgment is entered. Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990). The

      determination of reasonableness, however, varies with the circumstances of

      each case. Gipson, 644 N.E.2d at 877. “Relevant to the question of timeliness is

      prejudice to the party opposing the motion and the basis for the moving party’s

      delay.” Id. A motion for relief from judgment filed pursuant to Ind. Trial Rule

      60(B)(8) must also allege a meritorious defense. T.R. 60(B).


[6]   Thomaston specifically argues that he had a meritorious defense, namely, that

      his request for a settlement conference was not honored. He also alleges the


      Court of Appeals of Indiana | Memorandum Decision 18A-MF-2397 | June 24, 2019   Page 3 of 5
      motion to set aside default judgment was not filed earlier because the parties

      were engaging in settlement negotiations. U.S. Bank counters, among related

      arguments, that Thomaston did not file the motion for relief from judgment

      within a reasonable time and that Thomaston did not allege a meritorious claim

      or defense. Appellee’s Br. at 7. We address each issue in turn.


                                            I. Meritorious Defense

[7]   To establish a meritorious defense for the purposes of Trial Rule 60(B), the

      moving party must show that a different result would be reached if the case was

      decided on the merits. Vanjani v. Federal Land Bank of Louisville, 451 N.E.2d 667,

      672 (Ind. Ct. App. 1983). The party seeking to set aside a default judgment

      must make a “prima facie showing of a good and meritorious defense.” Id. at

      671.


[8]   On appeal, Thomaston argues that his request for settlement conference should

      have been granted pursuant to Indiana Code section 32-30-10.5-10. However,

      because he did not request the settlement conference within thirty days of

      service of the complaint, he cannot show that he was entitled to the requested

      settlement conference. Ind. Code § 32-30-10.5-9(a)(2)(A). Accordingly,

      Thomaston has not made a prima facie showing of a meritorious defense.


                                                 II. Timeliness

[9]   What constitutes a reasonable period of time, for the purposes of a motion to

      set aside judgment, is dependent upon the circumstances of the case, and the



      Court of Appeals of Indiana | Memorandum Decision 18A-MF-2397 | June 24, 2019   Page 4 of 5
       burden is on the moving party to show that relief is both necessary and just. In

       re Adoption of T.L.W., 835 N.E.2d 598, 601 (Ind. Ct. App. 2005).


[10]   Here, the request for settlement conference was filed after the trial court had

       entered default judgment. The trial court, by CCS entry dated October 6, 2018,

       directed Appellant to the proper procedure for the request for a settlement

       conference to be heard at that time. Thomaston, however, did not take that

       action until approximately fifteen months later. Appellant, having provided no

       reason for the delay in the request to set aside the default judgment, has not

       shown that the request was filed in a timely manner.


                                                 Conclusion
[11]   Thomaston has not made a prima facie showing of a meritorious defense. Nor

       did he file his motion for relief from judgment within a reasonable time.

       Accordingly, we conclude that the trial court did not abuse its discretion in

       denying the motion for relief from judgment.


[12]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MF-2397 | June 24, 2019   Page 5 of 5
