MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Mar 13 2020, 10:55 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
R. Patrick Magrath                                       Joseph Leon Payne
Alcorn Sage Schwartz &                                   Payne Law Office, LLC
Magrath, LLP                                             Austin, Indiana
Madison Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Prewitt,                                         March 13, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-PL-1917
        v.                                               Appeal from the Jackson Superior
                                                         Court
Jerry Neace,                                             The Honorable Amy Marie Travis,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         36D01-1711-PL-28



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020              Page 1 of 7
[1]   Following approximately one and one-half years of civil litigation, on March

      15, 2019, Jerry Neace sought a default judgment against Richard Prewitt

      because Prewitt had failed to file an answer to Neace’s April 27, 2018,

      counterclaim. The trial court subsequently granted Neace’s motion and entered

      default judgment in his favor. Prewitt appeals, arguing that the trial court erred

      because the parties had proceeded with the litigation up until trial without

      interruption or objection. Finding that Neace relinquished his ability to move

      for a default judgment and that the matter should be tried on the merits, we

      reverse the judgment of the trial court and remand for further proceedings.


                                                     Facts
[2]   On November 13, 2017, Prewitt filed a complaint against Neace for breach of

      an oral contract. Prewitt alleged that Neace had promised to make repairs to

      Prewitt’s 1968 Chevrolet Camaro and failed to do so. Prewitt also alleged that

      he had tendered $2,800 to Neace for all work and supplies and that Neace

      would retain the Chevrolet to make the necessary repairs. Neace was eventually

      served with the complaint on February 20, 2018.


[3]   On April 27, 2018, Neace responded to Prewitt’s complaint, admitting that

      Prewitt had delivered the Camaro, tendered the $2,800, and asked him to

      perform certain repairs. However, in a later section entitled “Affirmative

      Defenses and Counterclaim,” Neace alleged that Prewitt had breached the oral

      contract first, that Neace had a rightful mechanic’s lien on the Camaro, and




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020   Page 2 of 7
      that Neace should be paid in excess of $15,000 for services already completed.

      Appellant’s App. Vol. II p. 28-29.


[4]   Following an unsuccessful December 13, 2018, mediation between the parties,

      the matter was set for a March 15, 2019, bench trial. The morning of the bench

      trial, Neace’s counsel moved to have the trial court enter a default judgment in

      his favor because Prewitt had failed to file an answer to Neace’s April 27, 2018,

      counterclaim. Prewitt’s counsel responded to Neace’s motion as follows:


              Well, umm, our answer to that counter claim would have all
              entirely been included [in] our original complaint and uhh, I
              would have uhh, more or less refiled that so, I would say our
              answer was already on the record. And . . . the findings of the fact
              that we put forth are separate from their response and uhh, that
              matter still needs to be heard.


      Tr. Vol. II p. 7. The trial court continued the bench trial, urging Neace to file

      his motion in writing so that Prewitt would be able to submit a written

      response. Following briefing and a hearing, on June 5, 2019, the trial court

      ultimately ruled in Neace’s favor, entering a default judgment against Prewitt

      and ordering Prewitt to pay Neace $15,395.05 for all costs. On July 5, 2019,

      Prewitt filed a motion to correct error, seeking to have the default judgment set

      aside, which the trial court denied on July 25, 2019. Prewitt now appeals.


                                   Discussion and Decision
[5]   Prewitt’s sole argument on appeal is that the trial court erred by entering a

      default judgment in Neace’s favor because the parties had proceeded with the

      litigation up until trial without interruption or objection. Trial courts are
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020   Page 3 of 7
      afforded wide discretion in their decision to grant or deny a default judgment.

      Otter Creek Trading Co. v. PCM Enviro PTY, LTD, 60 N.E.3d 217, 224 (Ind. Ct.

      App. 2016). We will reverse a trial court’s decision to enter a default judgment

      only if it is clearly against the logic and effect of the facts and circumstances

      before the trial court. State v. Van Keppel, 583 N.E.2d 161, 163 (Ind. Ct. App.

      1991).


[6]   A party seeking relief from a default judgment may move to have that judgment

      set aside if he can show mistake, surprise, or excusable neglect. See Ind. Trial

      Rule 60(B)(1). There are no “fixed standards” to determine the bounds of

      mistake, surprise, or excusable neglect. Van Keppel, 583 N.E.2d at 162.

      “Accordingly, the trial court must balance the need for the orderly and efficient

      administration of justice with the judicial preference for deciding cases on their

      merits and giving parties their day in court based on the circumstances of each

      case.” Id. This balance is crucial “especially in cases involving material issues of

      fact, substantial sums of money, or weighty policy determinations.” Teegardin v.

      Maver’s, Inc., 622 N.E.2d 530, 533 (Ind. Ct. App. 1993). Additionally, “[a]

      movant seeking to set aside a judgment via [Trial Rule 60(B)] must also

      establish that he has a good and meritorious defense to the judgment.” Id. A

      meritorious defense is one such that if the cause were retried on the merits, a

      different result would be reached. Id.


[7]   It is well established that “[a]ny doubt of the propriety of a default judgment

      should be resolved in favor of the defaulted party.” Coslett v. Weddle Bros. Constr.

      Co., 798 N.E.2d 859, 861 (Ind. 2003). It is further well established that “[a] Trial

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020   Page 4 of 7
      Rule 60(B)(1) motion does not attack the substantive, legal merits of a

      judgment, but rather addresses the procedural, equitable grounds justifying the

      relief from the finality of a judgment.” Kmart Corp. v. Englebright, 719 N.E.2d

      1249, 1254 (Ind. Ct. App. 1999). And from this equitable perspective, we find

      that a reversal in Prewitt’s favor is both warranted and justified.


[8]   Starting in early 2018, Prewitt and Neace filed pleadings and prepared

      themselves for the possibility of prolonged litigation. It is undisputed that in his

      April 27, 2018, answer to Prewitt’s original complaint, Neace filed a

      counterclaim and alleged that Prewitt owed him more money than originally

      bargained for. It is also undisputed that Prewitt did not file an answer to that

      counterclaim. However, at that point in time—or at any reasonable time

      thereafter—Neace did not seek a default judgment against Prewitt.


[9]   Instead, as Prewitt correctly points out, in pertinent part:


              By the time Neace made his motion[,] [an] entire year had passed
              since the filing of the answer and counterclaim. During that time
              the parties had engaged in discovery and informal attempts at
              resolution. During that time the parties had been ordered to
              mediation, attended mediation and been unsuccessful at resolving
              the case. During that time the case had been set for bench trial on
              all of the issues plead [sic] by the parties. During that time both
              parties spent time, money and effort in preparing for bench trial,
              gathering exhibits and subpoenaing witnesses. At the eleventh
              hour, at the beginning of trial, with no prior notice to Prewitt or
              the Court, Neace argued that a trial on the merits should not occur
              due to Prewitt’s failure to file an answer.


      Appellant’s Br. p. 12.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020   Page 5 of 7
[10]   It is apparent that Neace’s actions on the morning of the March 15, 2019, bench

       trial caught both Prewitt and the trial court off guard. Prewitt, unaware of the

       fact that he had failed to file an answer to Neace’s counterclaim, did not have a

       coherent response to Neace’s motion for a default judgment; and, the trial court

       went out of its way to admonish Neace, urging him to put his motion into

       writing so that Prewitt would have ample time to respond. As a matter of

       equity, we find that Neace’s actions constituted an attempt to blindside the trial

       court into summarily awarding him a default judgment, despite having actively

       participated in the litigation for more than a year and a half.


[11]   Put another way, Neace cannot act as if the parties are in agreement as to the

       issues of the case at one moment and then cry foul of a prejudicial procedural

       deficiency at the next. In effect, Neace relinquished his ability to move for a

       default judgment by allowing the matter to proceed all the way to a bench trial.

       In our opinion, it is fundamentally unfair to deprive Prewitt of an opportunity

       to have his dispute resolved on the merits under these circumstances.1


[12]   We evaluate each of these cases based on their particular facts and

       circumstances. Though the trial court is afforded wide discretion in granting or




       1
         With regards to Prewitt’s meritorious defense, it is true that Prewitt admitted that he would possibly have to
       pay more than the $2,800 initially tendered to Neace for the Camaro repairs. In fact, Prewitt stated that “I
       would of [sic] figured at the most even with the so called extra stuff it would have been no more than thirty-
       five hundred.” Tr. Vol. II p. 63. However, Prewitt did not, as Neace would argue, wholly admit that Neace
       had a valid mechanic’s lien, that Prewitt was the first one to breach the oral contract, that Neace had made
       the necessary repairs, or that the amount in damages was uncontested. In other words, Prewitt had valid
       assertions regarding questions of fact and liability that could have changed the result in the case.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020                      Page 6 of 7
       denying default judgments, this Court is apprehensive about denying parties

       their day in court. Prewitt was wrongfully denied this very opportunity to

       litigate his breach of contract claim. Thus, the entry of a default judgment

       against Prewitt and in favor of Neace was erroneous.


[13]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1917 | March 13, 2020   Page 7 of 7
