MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Nov 22 2017, 6:33 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Matthew M. Cree                                         Stephen R. Lewis
Law Office of Matthew M. Cree, LLC                      Indianapolis, Indiana
Greenwood, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sharis Haas,                                            November 22, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        49A05-1706-CT-1260
        v.                                              Appeal from the Marion Circuit
                                                        Court
Gordon Haas,                                            The Honorable Sheryl L. Lynch,
Appellee-Defendant.                                     Judge
                                                        The Honorable Mark A. Jones,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49C01-0405-CT-1531



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017         Page 1 of 7
                                           Statement of the Case
[1]   Sharis Haas appeals the trial court’s order setting aside a default judgment

      against Gordon Haas. Sharis presents a single issue for our review, namely,

      whether the trial court abused its discretion when it set aside the default

      judgment. We affirm.


                                    Facts and Procedural History
[2]   On May 6, 2004, Sharis filed a complaint for damages against Gordon alleging

      that he had battered her. On May 26, Gordon appeared by counsel. Two

      months later, Gordon filed an answer and counterclaim. The trial court set the

      matter for trial and scheduled a pre-trial conference for November 5, 2007.

      Thereafter, Sharis filed a motion for a continuance, and the trial court

      scheduled a pre-trial conference for July 13, 2009. Neither Gordon nor his

      counsel appeared at the July 13, 2009, conference.1 Accordingly, the trial court

      rescheduled it for July 27, with the trial scheduled for August 10. On July 27,

      Gordon’s counsel moved to withdraw, and the trial court granted that motion.


[3]   No activity occurred in the case until August 29, 2013, when Sharis filed a

      motion for default judgment.2 The trial court denied that motion on March 6,

      2014. But after Gordon did not appear for a status conference on January 13,




      1
        The evidence shows that neither Sharis nor the trial court had a correct address for Gordon after he moved
      in 2005.
      2
          The record does not reflect what occurred on August 10, 2009, which was the scheduled trial date.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017           Page 2 of 7
      2015, the trial court advised Sharis to file another motion for default judgment,

      which she did on March 20. The trial court granted the default judgment the

      same day. On April 29, the trial court held a hearing on Sharis’ damages.

      Gordon did not appear for that hearing. On May 14, the trial court entered

      judgment in favor of Sharis in the amount of $619,359.39.


[4]   The trial court scheduled a hearing in proceedings supplemental for July 28,

      2016. The court ordered Gordon’s employer to appear at the hearing. Gordon,

      who had received notice of the proceedings supplemental at his correct home

      address, re-hired his counsel, who filed a motion to continue the hearing. And

      on August 4, Gordon filed a motion to set aside the default judgment under

      Trial Rule 60(B)(1) and (8). The trial court denied that motion following a

      hearing.


[5]   Gordon filed a motion to correct error, which the trial court granted.

      Accordingly, the trial court set aside the default judgment. In its order, the

      court stated in relevant part that “it [had] erred in granting a default judgment,

      even though [Gordon had] failed to appear. Because [Gordon] had answered

      and filed a counter-claim, the Court should have heard evidence before deciding

      whether [Sharis] had made a prima facie case, and thus whether judgment for

      [Sharis] was appropriate. . . .” Appellant’s App. Vol. 2 at 12. This appeal

      ensued.3




      3
          This is an appeal from a final judgment under Trial Rule 60(C).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017   Page 3 of 7
                                     Discussion and Decision
[6]   Our Supreme Court has set out the relevant standard of review as follows:


              “The decision whether to set aside a default judgment is given
              substantial deference on appeal. Our standard of review is
              limited to determining whether the trial court abused its
              discretion. An abuse of discretion may occur if the trial court’s
              decision is clearly against the logic and effect of the facts and
              circumstances before the court, or if the court has misinterpreted
              the law. . . . The trial court’s discretion is necessarily broad in
              this area because any determination of excusable neglect,
              surprise, or mistake must turn upon the unique factual
              background of each case. . . . A cautious approach to the grant
              of motions for default judgment is warranted in ‘cases involving
              material issues of fact, substantial amounts of money, or weighty
              policy determinations.’ In addition, the trial court must balance
              the need for an efficient judicial system with the judicial
              preference for deciding disputes on the merits. Furthermore,
              reviewing the decision of the trial court, we will not reweigh the
              evidence or substitute our judgment for that of the trial court.
              Upon a motion for relief from a default judgment, the burden is
              on the movant to show sufficient grounds for relief under Indiana
              Trial Rule 60(B).”


      Huntington Nat’l Bank v. Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015)

      (quoting Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999),

      trans. denied).


[7]   Sharis’ sole contention on appeal is that the trial court abused its discretion

      when it set aside the default judgment, which she considers to be a

      “misnomer,” because the court did not enter default judgment but entered



      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017   Page 4 of 7
judgment after “a trial on the merits[.]”4 Appellant’s Br. at 10-11. In support of

that contention, Sharis cites this court’s opinion in Pinkston v. Livingston, 554

N.E.2d 1173 (Ind. Ct. App. 1990). In Pinkston, we first observed that, “when

the defendant has filed a responsive pleading, a default judgment is improper,

even if the defendant fails to appear for trial.” Id. at 1176. Then we explained

that


                   a default occurs when a party fails to appear in
                   response to process or, having appeared, fails to obey
                   a rule to answer and thereby confesses the allegations
                   of the pleading. Judgment is then rendered without
                   the trial of any issue of law or fact. Fisk v. Baker,
                   1874, 47 Ind. 534. Obviously[,] where an issue of
                   fact is pending between the parties there can be no
                   judgment on default even though the defendant is
                   absent at the time fixed for trial. Under such
                   circumstances[,] however[,] the court may proceed to hear
                   the plaintiff’s evidence in the same manner as though the
                   defendant were present and, if a prima facie case is
                   established, may render appropriate judgment. Indiana
                   State Board of Medical Registration v. Pickard, 1931, 93
                   Ind. App. 171, 177 N.E. 870.

          [Hampton v. Douglass, 457 N.E.2d 618, 619 (Ind. Ct. App. 1983).]
          Thus[,] when a defendant fails to appear for trial the trial court
          may hear evidence, and, if the plaintiff establishes a prima facie
          case, enter judgment for the plaintiff. Such a judgment is on the
          merits. Id. . . .




4
    Sharis makes no contention that Gordon’s Trial Rule 60(B) motion was untimely.


Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017   Page 5 of 7
      Id. at 1176-77 (emphases added).


[8]   Sharis is correct that default judgment was improper in light of the fact that

      Gordon had appeared and filed an answer and counterclaim in this case. See id.

      at 1176. But Sharis is incorrect that the trial court held a trial on the merits of

      her complaint. The trial court granted her motion for default judgment the

      same day that she filed it without having heard any evidence. Thereafter, the

      trial court held a hearing on damages. Because the trial court did not hear

      evidence on the merits prior to entering default judgment, Sharis did not make a

      prima facie case to support a final judgment. We reject Sharis’ assertion that

      the damages hearing constituted a trial on the merits. The trial court’s default

      judgment was, in fact, a default judgment. The court properly granted

      Gordon’s motion to set aside the default judgment pursuant to our holding in

      Pinkston.


[9]   Further, in Horsley v. Lewis, 448 N.E.2d 41, 43 (Ind. Ct. App. 1983), we held

      that when defense counsel has appeared, filed responsive pleadings, and

      withdrawn, the defendant is entitled to three days’ notice of default pursuant to

      Trial Rule 55(B). Here, Sharis directs us to nothing in the record to show that

      she provided Gordon with the required three days’ notice of her application for

      default judgment. Indeed, the trial court granted her motion the same day that

      she filed it. We hold that the trial court erred when it entered default judgment,

      and the court did not abuse its discretion when it set aside the default judgment.

      See id.; see also Standard Lumber Co. of St. John, Inc. v. Josevski, 706 N.E.2d 1092,

      1096 (Ind. Ct. App. 1999) (holding default judgment voidable for lack of three

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017   Page 6 of 7
       days’ notice under Trial Rule 55(B) and affirming trial court’s order setting

       aside default judgment under Trial Rule 60(B)(8)).


[10]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CT-1260 | November 22, 2017   Page 7 of 7
