      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any                                   Apr 23 2019, 9:06 am

      court except for the purpose of establishing                                     CLERK
      the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Matthew J. McGovern
      Anderson, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gordon Huncilman,                                         April 23, 2019
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-CT-1958
              v.                                                Appeal from the Clark Circuit
                                                                Court
      Jeremy Voyles Marine Repair,                              The Honorable Andrew Adams,
      LLC, and Jeremy Voyles,                                   Judge
      Appellees-Defendants.                                     Trial Court Cause No.
                                                                10C01-1701-CT-4



      Mathias, Judge.


[1]   Gordon Huncilman (“Huncilman”) appeals the Clark Circuit Court’s setting

      aside of default judgment against Jeremy Voyles Marine Repair, LLC, and

      Jeremy Voyles (collectively, “Voyles”) arguing that there is no evidence of

      excusable neglect.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019                       Page 1 of 11
[2]   We reverse.


                                  Facts and Procedural History
[3]   In late 2015, Gordon Huncilman (“Huncilman”) met with Voyles about

      potentially hiring Voyles to paint his houseboat. Voyles told Huncilman that he

      wanted to use Awlgrip brand paint on the boat, and the two agreed that the

      work would be done in time for the boat to be launched in April or May of

      2016. Huncilman understood that the storage facility was strict with the hours it

      would allow Voyles to perform the necessary work, only allowing him to work

      between 7:30 a.m. and 3:30 p.m.


[4]   Huncilman testified that Voyles started the work on time, but there were large

      lapses of time between work. Huncilman also saw that Voyles had been

      working on another project at the same storage facility, but not on his boat. He

      also observed a lot of problems with sags and runs in the paint. Huncilman did

      not believe that Voyles properly prepared the boat; silicone around the windows

      was painted over, and glue from decals had not been removed. When

      Huncilman spoke to Voyles about these issues, Voyles indicated to him that he

      would not repair or finish the boat. Voyles testified that he did the same

      application on Huncilman’s boat that he does on hundreds of boats. He said

      with this particular application, another individual “down there” turned the air

      hoses off several times during application and that it splattered on the side of

      the boat. Tr. p. 45. He also testified that on another occasion, he had the stripes

      completely painted on one side, and someone else started a table saw and blew

      saw dust onto the brand new paint. After this, he re-painted the boat; however,
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 2 of 11
      Huncilman had a company removing carpet glue, and that company splattered

      gasoline all over the fresh paint on the back of the boat. Voyles testified that he

      addressed these issues with Huncilman, telling him that he could not travel this

      far to do this job with these sorts of mishaps with other companies. Huncilman

      testified that he had several appointments set up with Voyles, but that Voyles

      never showed and did not respond to his texts. Huncilman began interviewing

      other painters to paint the boat. Huncilman also spoke with the paint

      manufacturer and secured their technical bulletin. After reviewing the technical

      bulletin, he felt it was “obvious” that the technical specifications had not been

      followed. Tr. p. 54. Because of the defects with the paint, he had the boat

      stripped and repainted.


[5]   Voyles and Huncilman initially agreed upon a price of $10,000 for the painting

      work to be completed by April or May of 2016. Huncilman made two payments

      to Voyles, one for $3,250 and the other for $4,000. When the painting work was

      not completed after the passage of some time, Huncilman asked Voyles if he

      needed to pay additional money. Voyles asked for an additional $1,800, and

      Huncilman agreed to pay the additional amount upon completion. Huncilman

      paid Voyles and the contractor who ultimately completed the work a total of

      $67,614.39. The difference between Voyles’s initial quote to Huncilman and the

      amount he ultimately paid was $55,814.39


[6]   Huncilman initiated this matter against Voyles seeking monetary damages. The

      complaint and summons were addressed to Voyles at 3132 Utica Pike in

      Jeffersonville, Indiana. However, Voyles’s business address is actually 3732

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 3 of 11
      Utica Pike. When the complaint and summons were initially served, a law

      enforcement officer recognized the error in the address and served the copy on

      Voyles personally. After receiving the complaint, Voyles reached out to the

      attorney who was representing him in another matter, Richard Rush (“Rush”).

      Rush advised Voyles that he could not formally represent Voyles because of the

      potential for conflict; however, he did offer to assist Voyles with informally

      working the matter out with Huncilman. Rush then arranged a meeting

      between Voyles, Huncilman, and Huncilman’s counsel. Huncilman, his

      counsel, and Rush proposed an amount to Voyles; however, Voyles did not like

      the amount in the tentative agreement and refused to sign the settlement

      paperwork. Rush never entered an appearance in the matter.


[7]   After Voyles refused to sign the agreement, Rush sent him a letter stating


              We have spoken several times and have communicated via text
              message regarding the above matter. As you know, you have
              been sued by Gordon Huncilman. You have not filed an Answer
              and your deadline to file one has passed. The Agreed Judgment I
              assisted you in negotiating still has not been signed and
              [Huncilman’s counsel] has indicated he will be filing for a default
              judgment sometime next week. Under the trial rules, he would be
              eligible for that to be entered immediately. As you recall, I
              initially told you I would not represent you in this matter because
              of a potential conflict of interest. I have been involved thus far
              because it appeared there was an amicable resolution that
              wouldn’t pose a conflict. It is imperative that you file an Answer
              to the suit immediately or deliver the signed Agreed Judgment to
              me or to [Huncilman’s counsel] directly. I am sending a copy of
              this letter to [Huncilman’s counsel] so that he is aware that I have
              notified you of your rights and obligations. Should you have any
              questions, please do not hesitate to contact me.
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 4 of 11
      Ex. Vol., Petitioner’s Ex. 1. This letter is dated March 3, 2016. Rush testified

      that the date of 2016 was a typographical error and he sent the letter in 2017.

      Rush also testified that he had at least one conversation with Voyles regarding

      this letter before the motion for default judgment was filed. Voyles testified that

      he never received any pleadings or other paperwork regarding the matter other

      than the initial complaint and summons. On March 17, 2017, Huncilman

      moved for default judgment. On March 30, 2017, the trial court set a damages

      hearing, and Voyles did not appear. On June 12, 2017, the trial court entered

      default judgment against Voyles in the amount of $55,814.39 plus costs and

      statutory interest.

[8]   Voyles later learned of the default judgment against him when his father called

      him and told him he had seen the award of money for Huncilman on the

      internet. On January 16, 2018, Voyles, through new counsel, filed an answer to

      the complaint and a motion to set aside the default judgment. The trial court set

      a hearing on this motion for February 13, 2018. This hearing was then

      continued to July 11, 2018. At the hearing on Voyles’s motion to set aside the

      default judgment, Voyles testified he believed that he did not need to file a

      formal response to the complaint because Rush was assisting him with an

      informal resolution. After this hearing, the trial court set aside the default

      judgment. Huncilman now appeals the order setting aside default judgment.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 5 of 11
                                      Discussion and Decision

[9]    Once entered, a default judgment may be set aside because of mistake, surprise,

       or excusable neglect so long as the motion to set aside the default is entered not

       more than one year after the judgment and the moving party also alleges a

       meritorious claim or defense. Ind. Trial Rules 55(C), 60(B). Indiana Trial Rule

       60(B)(8) allows the setting aside of default judgment for “any reason justifying

       relief from the operation of the judgment, other than those reasons set forth in

       sub-paragraphs (1), (2), (3), and (4). When deciding whether or not a default

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

       consider the unique factual background of each case because “[n]o fixed rules

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

       alike.” Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983) (quoting

       Grecco v. Campbell, 179 Ind. App. 530, 532, 386 N.E.2d 960, 961 (1979)).

       Indiana law strongly prefers disposition of cases on their merits. State v. Van

       Keppel, 583 N.E.2d 161, 162 (Ind. Ct. App. 1991), trans. denied. Though the trial

       court should use its discretion to 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. Allstate Ins. Co. v. Watson, 747 N.E.2d 545,

       547 (Ind. 2001).


[10]   A ruling denying or granting relief on a motion to set aside a default judgment

       is entitled to deference and is reviewed for abuse of discretion. Id. A trial court

       will not be found to have abused its discretion “so long as there exists even

       slight evidence of excusable neglect.” Security Bank & Trust Co. v. Citizens Nat’l

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 6 of 11
       Bank, 533 N.E.2d 1245, 1247 (Ind. Ct. App. 1989). An appellee who does not

       respond to the appellant’s allegations of error on appeal runs a considerable risk

       of reversal. O.S. v. J.M., 436 N.E.2d 871, 872 (Ind. Ct. App. 1982). Where an

       appellee has not filed a brief on appeal, the appellant’s brief need only

       demonstrate prima facie reversible error in order to justify a reversal. Id. “Prima

       facie, in this context, means at first sight, on first appearance, or on the face of

       it.” WindGate Properties, LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.

       2018). “This standard, however, ‘does not relieve us of our obligation to

       correctly apply the law to the facts in the record in order to determine whether

       reversal is required.’” Id. (citing Wharton v. State, 42 N.E.3d 538, 541 (Ind. Ct.

       App. 2015)).


[11]   The trial court set aside the default judgment pursuant to Ind. Trial Rule

       60(B)(1) & (8) on the basis “that the failure to respond was a result of actual

       lack of service to defendant or was due to a mistake or excusable neglect.”

       Appellant’s App. p. 42. Huncilman argues that there is no evidence to support

       the trial court’s conclusion that there was an “actual lack of service.”

       Huncilman also argues that there was no evidence to support the conclusion of

       that there was excusable neglect. Appellant’s Br. at 14, Appellant’s App. p. 42.

       Because of the facts of these particular circumstances, we address these

       arguments together.

[12]   Initial service of a summons and complaint is governed by Indiana Trial Rule

       4.1. It reads, in relevant part:



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 7 of 11
               In General. Service may be made upon an individual, or an
               individual acting in a representative capacity, by:


               (1) sending a copy of the summons and complaint by registered
                   or certified mail or other public means by which a written
                   acknowledgement of receipt may be requested and obtained
                   to his residence, place of business or employment with return
                   receipt requested and returned showing receipt of the letter; or


               (2) delivering a copy of the summons and complaint to him
                   personally; or


               (3) leaving a copy of the summons and complaint at his dwelling
                   house or usual place of abode; or


               (4) serving his agent as provided by rule, statute or valid
                   agreement.


[13]   A party properly brought into court is chargeable with notice of all subsequent

       steps taken in the cause down to and including the judgment, although he does

       not in fact appear or have actual notice thereof. Vanjani v. Federal Land Bank of

       Louisville, 451 N.E.2d 667, 670 (Ind. Ct. App. 1983). Absent a showing of

       excusable neglect, a party is bound by the proceedings occurring thereafter. Id.


               The following facts have been held to constitute excusable
               neglect, mistake, and inadvertence: (a) absence of a party’s
               attorney through no fault of party; (b) an agreement made with
               opposite party, or his attorney; (c) conduct of other persons
               causing party to be misled or deceived; (d) unavoidable delay in
               traveling; (e) faulty process, whereby party fails to receive actual
               notice; (f) fraud, whereby party is prevented from appearing and
               making a defense; (g) ignorance of defendant; (h) insanity or

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 8 of 11
                 infancy; (i) married women deceived or misled by conduct of
                 husbands; (j) sickness of party, or illness of member of family.


       Id. (quoting Continental Assurance Company v. Sickels, 145 Ind. App. 671, 675, 252

       N.E.2d 439, 441 (Ind. Ct. App. 1969)).


[14]   Ind. Trial Rule 55(B) references service of a motion for default judgment and

       states:

                 (B) Default Judgment. In all cases the party entitled to a
                 judgment by default shall apply to the court therefor . . . [i]f the
                 party against whom judgment by default is sought has appeared
                 in the action, he, (or if appearing by a representative, his
                 representative) shall be served with written notice of the
                 application for judgment at least three [3] days prior to the
                 hearing on such application. If, in order to enable the court to
                 enter judgment or to carry it into effect, it is necessary to take an
                 account or to determine the amount of damages or to establish
                 the truth of any averment by evidence or to make an
                 investigation of any other matter, the court may conduct such
                 hearing or order such references as it deems necessary and proper
                 and shall accord a right of trial by jury to the parties when and as
                 required.


[15]   Huncilman argues that, pursuant to Rule 55(B), whether Voyles actually

       received the motion for default judgment is irrelevant as the trial rule only

       requires that the request for default judgment be served on a party who has

       appeared in the action. While the language used in the trial rule indeed only

       explicitly requires service upon a party who has appeared, we are mindful that

       our supreme court has reminded us that “the important and even essential

       policies necessitating the use of default judgments – maintaining an orderly and

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 9 of 11
       efficient judicial system, facilitating the speedy determination of justice, and

       enforcing compliance with procedural rules – should not come at the expense of

       professionalism, civility, and common courtesy.” Huntington Nat’l Bank v. Car-X

       Assoc. Corp., 39 N.E.3d 652, 659 (Ind. 2015). Here, it does not appear that

       default proceedings were used as a “gotcha” device. Id.


[16]   The parties do not dispute that Voyles received the complaint and summons in

       this matter. Once Voyles received the summons and complaint, he bore the

       burden of appearing, keeping apprised of the proceedings, and defending

       himself. Additionally, Huncilman attempted to serve Voyles with the Motion

       for Default Judgment; the Motion for Default Judgment contains a certificate of

       service that contains the same incorrect address that the complaint and

       summons contained. Ex. Vol., Petitioner’s Ex. 2a.


[17]   Voyles participated in settlement negotiations and was advised by Rush by

       letter and in person that Huncilman intended to move for default judgment if

       Voyles did not appear and file an answer when settlement negotiations fell

       through. Moreover, once he was served with the complaint, he was chargeable

       with notice of subsequent actions in the matter, whether or not he received

       actual notice. Vanjani, 451 N.E.2d at 670. There are no other facts in the record

       to show that Voyles was otherwise incapable of appearing and defending

       himself. The law distinguishes neglect from excusable neglect, and we conclude

       in these circumstances that the neglect on the part of Voyles was not excusable.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 10 of 11
                                                 Conclusion

[18]   Because Voyles’s neglect in failing to appear and file an answer after being

       advised that he needed to do so in order to avoid default judgment does not

       constitute excusable neglect, and because we find no other reason on these facts

       to set aside default judgment, we reverse the trial court’s order setting aside of

       the default judgment in this matter.

[19]   Reversed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1958 | April 23, 2019   Page 11 of 11
