Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

BART M. BETTEAU                                    GREGORY F. ZOELLER
Betteau Law Office, LLC                            Attorney General of Indiana
New Albany, Indiana
                                                   IAN McLEAN
                                                   Deputy Attorney General

                                                                                 FILED
                                                   Indianapolis, Indiana

                                                                             Feb 21 2013, 9:09 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




DAVID PURLEE,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 88A01-1210-IF-458
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE WASHINGTON CIRCUIT COURT
                           The Honorable Larry W. Medlock, Judge
                               Cause No. 88C01-1007-IF-1053



                                       February 21, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
        On July 25, 2010, David Purlee was pulled over while driving and cited for driving

while suspended in violation of Indiana Code section 9-24-19-1. After both Purlee and his

counsel failed to appear for numerous proceedings before the trial court, including a bench

trial scheduled for September 19, 2012, the trial court entered a default judgment against

Purlee. Purlee filed a motion to set aside the default judgment. He appeals after this motion

was denied by the trial court. Concluding that the trial court erroneously denied Purlee’s

motion to set aside the default judgment, we reverse the judgment of the trial court and

remand for further proceedings.

                           FACTS AND PROCEDURAL HISTORY

        On July 25, 2010, Purlee was pulled over while driving and was issued a citation for

driving while suspended. The citation indicated that Purlee was ordered to appear for a

hearing before the trial court on September 15, 2010. On July 27, 2010, the State charged

Purlee with driving while suspended in violation of Indiana Code section 9-24-19-1 (2010).

        Purlee failed to appear for the September 15, 2010 hearing. On October 19, 2010, the

trial court sent a SR-16 Certification of Indiana Abstract of Court Record (“SR-16 form”)1 to

the BMV, notifying the BMV that Purlee had failed to appear for the September 15, 2010


        1
          A SR-16 form is a form used by the trial court to communicate official actions of the court to the
Bureau of Motor Vehicles (“BMV”). According to the BMV’s website, a SR-16 form

        is used by courts to notify the BMV that a driver has been convicted of a citation, failed to
        appear for a citation, or failed to pay a citation for violating a motor vehicle law. This form
        also notifies the BMV when orders have been rescinded. Drivers may not submit SR-16
        forms at license branches. SR-16 forms may only be submitted by a court directly to the
        BMV.

See http://www.in.gov/bmv/2373.htm (last visited February 6, 2013).
                                                      2
hearing. On December 7, 2010, Purlee, by counsel, filed a request to vacate the SR-16

certification and to set the matter for a pre-trial conference. The trial court granted Purlee’s

request and scheduled a pre-trial conference for February 16, 2011. Both Purlee and his

counsel failed to appear for the February 16, 2011 pre-trial conference. On March 23, 2011,

the trial court sent a second SR-16 form to the BMV, notifying the BMV that Purlee had

failed to appear for the February 16, 2011 pre-trial conference.

       Approximately nine months later, Purlee, by counsel, again filed a request to vacate

the SR-16 certification and to set the matter for a pre-trial conference. The trial court granted

Purlee’s request and scheduled a pre-trial conference for January 18, 2012. During the

January 18, 2012 pre-trial conference, the trial court scheduled a hearing on the matter for

March 21, 2012.

       Purlee appeared for the March 21, 2012 hearing, but his counsel did not. The trial

court noted that the matter had been pending since July of 2010 and continued on with the

hearing in Purlee’s counsel’s absence. During the March 21, 2012 hearing, the trial court

heard the testimony of the officer who issued the citation to Purlee on July 25, 2010.

       On March 26, 2012, Purlee, by counsel, filed an objection to the March 21, 2012

hearing as well as a demand for a jury trial. The State filed a response to this pleading on

March 29, 2012. On August 9, 2012, the trial court denied Purlee’s demand for a jury trial

and scheduled the matter for a bench trial on September 19, 2012.

       Both Purlee and his counsel failed to appear for the bench trial on September 19,

2012. In light of Purlee’s failure to appear, the State requested, and the trial court granted, a

                                               3
default judgment against Purlee. The trial court subsequently sent another SR-16 form to the

BMV, notifying the BMV that Purlee had failed to appear for the September 19, 2012 bench

trial.

         On October 2, 2012, Purlee, by counsel, filed a motion to set aside the default

judgment. The trial court denied Purlee’s motion to set aside the default judgment on

October 9, 2012. This appeal follows.

                               DISCUSSION AND DECISION

         Purlee raises two contentions on appeal. Purlee contends that the trial court erred in

ruling on his motion to set aside the default judgment without first conducting a hearing on

said motion. Purlee also contends that the trial court erred in denying his request to set aside

the default judgment.

   I. Whether the Trial Court Erred in Ruling on Purlee’s Motion to Set Aside the
       Default Judgment Without First Conducting a Hearing on Said Motion

         Purlee contends that the trial court erred by failing to conduct a hearing before ruling

on his motion to set aside the default judgment. Indiana Trial Rule 60(D) provides that a trial

court should hear “all pertinent evidence” before ruling on a motion to set aside a default

judgment. However, we have previously concluded that when such pertinent evidence is

presented to the trial court on a paper record, the trial court is not required to conduct a

hearing. See Williams v. Tharp, 934 N.E.2d 1203, 1214-15 (Ind. Ct. App. 2010), trans.

denied. In the instant matter, Purlee submitted all pertinent evidence, as well as relevant

authority in support of his position, to the trial court with his motion. Because Purlee has


                                                4
failed to direct us to any pertinent evidence that was not before the trial court when it ruled

on his motion to set aside the default judgment, we conclude that the trial court did not err by

failing to conduct a hearing before ruling on Purlee’s motion.

                II. Whether the Trial Court Erred in Denying Purlee’s
                      Motion to Set Aside the Default Judgment

       Purlee also contends that the trial court erred in denying his motion to set aside the

default judgment. “Upon a motion for relief from the default judgment, the burden is on the

movant to show sufficient grounds for relief under [Trial Rule] 60(B).” Jostens Learning

Corp. v. Educ. Sys. Corp. of Ind., 651 N.E.2d 1186, 1188 (Ind. Ct. App. 1995), trans. denied.

“A trial court’s denial of a motion for relief filed in accordance with Indiana Trial Rule

60(B) is ordinarily reviewed for an abuse of discretion.” Baird v. Lake Santee Reg’l Waste &

Water Dist., 945 N.E.2d 711, 714 (Ind. Ct. App. 2011) (citing Case v. Case, 794 N.E.2d 514,

517 (Ind. Ct. App. 2003)). However, when a trial court rules on such a motion on a paper

record without conducting an evidentiary hearing, as it did here, the standard of review on

appeal is de novo. Id. (citing Williams, 934 N.E.2d at 1215). “The rationale for de novo

review is that the appellate court is in as good a position as the trial court to determine the

force and effect of [the] evidence.” Id. (citing Williams, 934 N.E.2d at 1215). “When

reviewing the denial of a motion to set aside a default judgment, we seek to balance the need

for finality of judgments and judicial efficiency with our ‘marked preference for deciding

disputes on their merits and for giving parties their day in court.” Butler v. State, 933 N.E.2d

33, 36 (Ind. Ct. App. 2010) (quoting Bunch v. Himm, 879 N.E.2d 632, 635 (Ind. Ct. App.


                                               5
2008)).

         Trial Rule 60(B) sets forth eight different criteria, each of which, if proven, would

justify relief from a default judgment. Although Purlee’s motion to set aside the judgment is

vague, it appears that Purlee claims to be entitled to relief under Indiana Trial Rule 60(B)(6)

and (8), which provide relief, respectively, on the ground that the judgment is void and on

any ground justifying relief from the operation of the judgment other than those specifically

set forth in subparagraphs (1), (2), (3), or (4).2

         To succeed under [Trial Rule] 60(B)(6), the petitioner must show that the
         judgment is void not merely voidable. Chapin v. Hulse, 599 N.E.2d 217, 219
         (Ind. Ct. App. 1992), trans. denied. If an instrument or judgment is void, it is
         of no effect whatever and is subject to collateral attack at any time. [Kessen v.
         Graft, 694 N.E.2d 317, 321 (Ind. Ct. App. 1998) (Garrard, J., dissenting),
         trans. denied]. On the other hand, if an instrument or judgment is merely
         voidable, its deficiencies may be waived and it is subject only to direct, and not
         collateral, attack. Id. Nevertheless, a voidable judgment would still qualify
         under [Trial Rule] 60(B)(8) even if it did not fall under [Trial Rule] 60(B)(6).

Standard Lumber Co. of St. John, Inc. v. Josevski, 706 N.E.2d 1092, 1095-96 (Ind. Ct. App.

1999).

         In addition to proving that he is entitled to relief under Trial Rule 60(B), Purlee must

also demonstrate a meritorious defense.

         A meritorious defense for the purposes of [Trial] Rule 60(B) is “one that
         would lead to a different result if the case were tried on the merits.” [Bunch,

         2
          Subparagraphs (1) through (4) provide relief for the following reasons: “(1) mistake, surprise, or
excusable neglect; (2) any ground for a motion to correct error, including without limitation newly discovered
evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors
under Rule 59; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; and (4) entry of default or judgment by default was entered against such party
who was served only by publication and who was without actual knowledge of the action and judgment, order
or proceedings.” Trial Rule 60(B).

                                                      6
       879 N.E.2d at 637]. Absolute proof of the defense is not necessary, but there
       must be “enough admissible evidence to make a prima facie showing” that “the
       judgment would change and that the defaulted party would suffer an injustice
       if the judgment were allowed to stand.” Id.

Butler, 933 N.E.2d at 36.

       Purlee claims that the trial court erred in denying his motion to set aside the default

judgment because he was “unquestionably convicted of an offense he did not commit.”

Appellant’s Br. p. 1. Purlee admits that he was disqualified from holding a valid Indiana

driver’s license on the date in question, but argues that his BMV-generated driving record

indicates that his driving privileges were “disqualified,” not suspended, on July 25, 2010.

Thus, Purlee claims that he could not have been convicted of driving while suspended.

       Indiana Code section 9-24-19-1 provides that an individual is guilty of “driving while

suspended” as a Class A infraction if he “operates a motor vehicle upon a highway while

[his] driving privilege, license, or permit is suspended or revoked.” Purlee attached his

BMV-generated driving record, as well as a copy of the citation issued to him on July 25,

2010, to his motion to set aside the default judgment. Purlee claims that his driving record

proves that his driving privileges were not suspended on the date in question, but rather that

he was merely “disqualified” from having a valid driver’s license. Purlee also attached a

copy of the Indiana Supreme Court’s opinion in Frink v. State, 568 N.E.2d 535 (Ind. 1991),

which he claims establishes that one cannot be found guilty of driving while suspended if the

driving did not occur during an active suspension period.

       In Frink, the Indiana Supreme Court reversed the defendant’s driving while suspended


                                              7
conviction, finding that the evidence was insufficient to sustain a finding that defendant

drove a motor vehicle while his driver’s license was suspended. 568 N.E.2d at 538. The

Supreme Court determined that the relevant evidence demonstrated that although Frink’s

license had previously been suspended and Frink did not have a valid driver’s license at the

time he was pulled over because he had failed to pay the required reinstatement fee, the

suspension period had expired prior to the date in question. Id. Upon considering the

relevant evidence, the Supreme Court determined that the State could have properly charged

Frink with operating a vehicle without a valid operator’s license in violation of Indiana Code

9-1-4-26,3 but not driving while suspended, because the suspension period had passed. Id.

       Similarly, here, review of Purlee’s certified driving record demonstrates that Purlee’s

driver’s license was not suspended on July 25, 2010. Purlee’s driving record indicates that

prior suspension periods had expired prior to July 25, 2010, and subsequent suspension

periods had not yet gone into effect. While Purlee’s driving record does indicate that Purlee

was “disqualified” from holding a valid driver’s license on the date in question, the State has

presented no authority suggesting that a “disqualification” is the same as a “suspension.” As

such, we conclude that Purlee could not be convicted of driving while suspended. See id;

State v. Dyson, 518 N.E.2d 812, 813-14 (Ind. Ct. App. 1988) (providing that an individual

cannot be convicted of driving while suspended after the suspension period has expired).

       We conclude that the trial court erred in denying Purlee’s motion to set aside the

default judgment because the pertinent evidence demonstrates that Purlee was entitled to


       3
           We note that Indiana Code section 9-1-4-26 was subsequently repealed.
                                                    8
relief under Trial Rule 60(B)(8) and that Purlee presented a meritorious defense. We

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

consistent with this decision.

       The judgment of the trial court is reversed and the matter remanded for further

proceedings.

NAJAM, J., and FRIEDLANDER, J., concur.




                                          9
