                                                                  FILED
                                                             Feb 28 2018, 8:09 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Thomas A. Vick                                             TREE CITY VILLAGE AND NEW
Law Office of Thomas A. Vick                               GENERATION MANAGEMENT
Greenwood, Indiana                                         Lonnie D. Johnson
                                                           Belinda R. Johnson-Hurtado
                                                           Cheyenne N. Riker
                                                           Clendening Johnson & Bohrer,
                                                           P.C.
                                                           Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Genia Wamsley,                                             Februray 28, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           16A01-1706-CT-1355
        v.                                                 Appeal from the Decatur Superior
                                                           Court
Tree City Village, New                                     The Honorable Matthew D.
Generation Management, Inc.,                               Bailey, Judge
and Matthew Joseph,1                                       Trial Court Cause No.
Appellees-Defendants.                                      16D01-1609-CT-410




Mathias, Judge.




1
 Appellee-Defendant Matthew Joseph does not participate on appeal. However, pursuant to Indiana
Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018               Page 1 of 17
[1]   Genia Wamsley (“Wamsley”) appeals the trial court’s order setting aside

      default judgment entered against Tree City Village and New Generation

      Management, Inc. (collectively “the Landlords”). Because we find that the trial

      court abused its discretion when it found that the failure to respond to the

      lawsuit by the Landlords was the result of excusable neglect, we reverse and

      remand.


                                  Facts and Procedural History
[2]   On March 7, 2016, Matthew Joseph (“Joseph”) was cleaning his nine-

      millimeter handgun in his Greensburg, Indiana apartment2 when it accidently

      discharged. The bullet went through his wall and into the adjacent apartment

      where it struck Wamsley in the side. Wamsley survived, but she suffered

      significant injuries and medical expenses.


[3]   On April 25, 2016, Wamsley’s counsel, Thomas Vick (“Vick”) sent a letter to

      New Generation Management, Inc. notifying it of his representation of

      Wamsley and that he was “preparing to litigate any and all claims available to

      her.” Appellant’s App. p. 33. He also asked that New Generation Management,

      Inc. place its insurer on notice of his representation.




      2
        Tree City Village is the name of the apartment complex and New Generation Management, Inc. manages
      the property.

      Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018              Page 2 of 17
[4]   A couple weeks later, Vick received a letter from The Cincinnati Insurance

      Companies’ (the “Insurer”)3 Senior Claims Specialist Lori Dixon (“Dixon”)

      acknowledging Vick’s representation of Wamsley and requesting certain

      information and documents pertaining to the incident. Between May 17 and

      July 28, Dixon and Vick communicated frequently over e-mail regarding

      Wamsley’s claim, but Dixon denied Wamsley’s claim. Importantly, Dixon did

      not request that Vick copy her with any complaint filed regarding the claim.

[5]   On September 13, 2016, Wamsley filed a complaint for damages against Joseph

      and the Landlords. The complaint alleged negligence and nuisance against the

      defendants and that the Landlords had breached a duty of care by not acting

      reasonably to protect Wamsley’s safety. The Landlords received service of the

      complaint the week it was filed. On September 15, Dixon emailed Vick

      notifying him that the Insurer denied Wamsley’s claim. And on September 19,

      New Generation Management, Inc. president Tamera L. Brandt (“Brandt”)

      sent Vick a letter in which she confirmed that she had received the summons

      and complaint, and that the complaint mistakenly stated that New Generation

      Management, Inc. owned Tree City Village. Vick did not respond to Brandt’s

      letter, and Brandt placed the summons and complaint in a file cabinet for

      storage. Appellant’s App. p. 50.




      3
       The Cincinnati Insurance Companies is the insurance agency for both Tree City Village and New
      Generation Management, Inc. Appellees’ App. p. 7.

      Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018                Page 3 of 17
[6]   Because the Landlords did not respond to the complaint, Wamsley filed for

      default judgment on October 25. On November 10, the trial court entered

      default judgment against the Landlords and scheduled a damages hearing. Prior

      to the hearing, on February 15, 2017, Landlords filed motions to set aside the

      default judgment alleging that the failure to respond was due to excusable

      neglect and that they had a meritorious defense to the allegations.


[7]   On March 31, the trial court held a hearing on the motions to set aside default

      judgment. At the hearing, counsel for the Landlords argued that the Insurer was

      not aware of the complaint because Vick never provided the Insurer with a

      copy. Counsel further contended that the failure to respond constituted

      excusable neglect because Brandt did all she thought was required of her when

      she received the complaint. Vick responded,


              Now, the idea of somebody looking at a complaint, seeing the
              summons, seeing that their company, of which they are
              president, is named in the complaint, responding to the
              complaint by a letter to opposing counsel and then not doing
              anything to follow up on that, I don’t think that that’s excusable
              neglect. I see that as willful ignorance.


      Tr. p. 23.


[8]   On April 10, the trial court granted the Landlords’ motions in two one-sentence

      orders. Wamsley filed a motion to correct error on May 5, and the trial court

      denied it on May 31. Wamsley now appeals.




      Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 4 of 17
                                         Discussion and Decision
[9]    Wamsley argues that the trial court abused its discretion when it granted

       Landlords’ motions to set aside default judgment. Because Indiana law strongly

       prefers disposition of cases on the merits, default judgments are generally

       disfavored, and the trial court’s discretion in granting a default judgment should

       be exercised in light of this disfavor. Coslett v. Weddle Bros. Const. Co., 798

       N.E.2d 859, 861 (Ind. 2003). On appeal, we review the trial court’s decision for

       an abuse of discretion. Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind.

       2001). An abuse of discretion occurs when the trial court’s denial is clearly

       against the logic and effect of the facts and inferences supporting the order.

       Whitt v. Farmer’s Mutual Relief Ass’n, 815 N.E.2d 537, 539 (Ind. Ct. App. 2004).


[10]   Indiana Trial Rule 55(C) explains that “[a] judgment by default which has been

       entered may be set aside by the court for the grounds and in accordance with

       the provisions of Rule 60(B).” Indiana Trial Rule 60(B) provides in relevant

       part, “On motion and upon such terms as are just the court may relieve a party

       or his legal representative from a judgment, including a judgment by default, for

       . . . (1) mistake, surprise, or excusable neglect[.]”4




       4
         We acknowledge that when a party moves to set aside default judgment under Trial Rule 60(B)(1), it must
       also allege a meritorious claim or defense. T.R. 60(B). However, because we find that the trial court abused
       its discretion when it implicitly found excusable neglect, we decline to address the parties meritorious claim
       arguments. Landlords did not contend that the default judgment should be set aside for any other grounds
       under Trial Rule 60(B).

       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018                       Page 5 of 17
[11]   Providing the trial court with the deference it is due, “[a] Trial 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) (citation omitted), trans denied. Because “[t]here is no general

       rule as to what constitutes excusable neglect under Trial Rule 60(B)(1),” “[e]ach

       case must be determined on its particular facts.” Id. (citation omitted). The

       burden is on the Landlords “to affirmatively demonstrate that relief is necessary

       and just.” Id. (citation omitted).


[12]   Landlords claim that the evidence presented to the trial court was sufficient to

       demonstrate excusable neglect5 because: (1) “Wamsley failed to notify the

       insurer of the existence of the Complaint[;]” and (2) Landlords believed they

       “had done all that was required of them by allowing the insurer [to] handle the

       claim.” Appellees’ Surreply Br. at 13. We address each contention in turn.


                         A. Wamsley’s Failure to Notify Landlords’ Insurer

[13]   Landlords cite to two cases from our supreme court and one case from our

       court in support of its argument that Vick’s failure to forward the complaint to

       the Insurer heavily factors into the Landlords’ alleged excusable neglect in




       5
        Although the trial court did not make a specific finding of excusable neglect, this was the only basis argued
       by Landlords in support of their Trial Rule 60(B) motions. Therefore, we presume that because the trial court
       granted the motion, it necessarily concluded that Landlords’ failure to respond to the Wamsley’s complaint
       was the result of excusable neglect.



       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018                      Page 6 of 17
       failing to appear. In Boles v. Weidner, 449 N.E.2d 288 (Ind. 1983), Boles was

       involved in an automobile accident with Weidner. Id. at 289. Prior to Boles

       filing suit, Weidner and his insurer were notified that Boles was represented by

       counsel, and correspondence between Boles’s counsel and the insurer took

       place. Boles filed suit against both Weidner and his employer, and when neither

       party responded, Boles filed for default judgment which the trial court granted.

       Months later, Weidner and his employer entered an appearance and filed for

       relief from judgment. Weidner claimed that he had provided his insurance

       agent with the complaint and that the agent was supposed to notify the

       insurance carrier. The trial court granted Weidner’s motion, and Boles

       appealed.


[14]   When it granted the motion to set aside default judgment, “the trial court found

       that the failure of the plaintiff’s counsel . . . to exercise the common courtesy of

       notification to the insurance carrier of the lawsuit’s existence constituted

       conduct prejudicial to the entry of a default judgment and was a factor which

       contributed to the entry of default.” Id. at 290. However, our supreme court

       recognized that Boles’s counsel was under no obligation to notify the insurer of

       a lawsuit and explained that “counsel’s failure to notify the carrier of the entry

       of a lawsuit would not, standing alone, justify the trial court in setting aside the

       default judgment.” Id. Thus, although it was a valid factor in a trial court’s

       decision to set aside default judgment, the question before the court was

       “whether the defendants’ negligence in appearing in the lawsuit was excusable

       under all the facts and circumstances.” Id.


       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 7 of 17
[15]   Our supreme court affirmed the judgment of the trial court for several reasons

       including: (1) Weidner immediately gave the complaint to his insurance agent

       to forward it to the insurance agency handling the claim; (2) there was a

       breakdown in communication between the insurance agency and the insurance

       carrier; and (3) a claims representative for the insurance carrier attempted,

       without success, on at least ten occasions to obtain Boles’s medical records

       from his attorney. Id. at 290–91.


[16]   In McGee v. Reynolds, 618 N.E.2d 40 (Ind. Ct. App. 1993), McGee was involved

       in an automobile accident with Reynolds. McGee’s attorney had several

       conversations with Reynolds’s insurer regarding a settlement; however, the

       negotiations reached an impasse. McGee’s attorney failed to properly serve

       Reynolds due to an incorrect address, and never responded to Reynolds’s

       insurer’s letter inquiring as to the status of the claim. McGee filed, and the trial

       court granted, a motion for default judgment. Seven months later, Reynolds

       received notice and moved to set the default judgment aside, which the trial

       court granted. McGee appealed.


[17]   A panel of this court affirmed the trial court’s decision to set aside the default

       judgment and explained that the “failure to answer a direct inquiry from an

       insurer concerning his client’s claim when coupled with the failure to provide

       the insurer with notice of a pending law suit smack of chicanery and unfair

       advantage.” Id. at 41. However, the court clarified that the failure of McGee’s

       attorney to give notice of the lawsuit to Reynolds’s insurer alone would have

       been insufficient to set aside default judgment. Id.

       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 8 of 17
[18]   And in Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999), Johnston filed a

       complaint with the Indiana Department of Insurance against Dr. Smith and

       Smith Surgical group for medical malpractice. Id. at 1261. After the medical

       review panel found that Smith had failed to comply with appropriate standards

       of care, Johnston filed suit against Dr. Smith and Smith Surgical Group. A

       scrub nurse signed for the summonses and placed the documents on Dr. Smith’s

       desk.6 No response was filed, so Johnston filed for default judgment which the

       trial court granted. Smith then moved to set aside default judgment, in part, for

       excusable neglect based on a breakdown in communication. The trial court

       denied Smith’s motion, and he appealed.


[19]   On appeal, our supreme court affirmed the trial court stating, “This is neglect,

       but not excusable neglect as the term appears in Rule 60(B)(1).” Id. at 1262. The

       Smith court then distinguished the case from other previous decisions where

       excusable neglect was found and explained, “Here, Smith knew his mail was

       unattended and accepted the risk of adverse consequences. The judicial system

       cannot allow its processes to be stymied by simple inattention.” Id.


[20]   The case before us is more analogous to Smith, and distinguishable from both

       Boles and McGee. Unlike in Boles, here, the Landlords never sent the complaint

       to their Insurer. And unlike the attorney in McGee, Vick properly served the




       6
        The office manager, who usually handled all legal matters, was in the process of leaving Smith Surgical
       Group due to financial difficulties and was not in the office at the time the lawsuit was filed. Dr. Smith
       apparently did not see the summonses until after default judgment was entered.

       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018                      Page 9 of 17
       Landlords, and he never actively ignored inquires made by the Landlord or the

       Insurer. Rather, similar to the situation in Smith, the Landlords failed to take

       any action with regard to the complaint, except for notifying Vick of an

       immaterial defect. However, unlike the circumstances in Smith, here the

       Landlords personally received the complaint and summons, acknowledged

       receiving it, and then New Generation Management, Inc.’s president placed it

       in a file cabinet for storage.


[21]   We recognize that Vick did not send a courtesy copy of the complaint to the

       Insurer. However, Landlords’ counsel acknowledged at the hearing on the

       motion to set aside default judgment that “[a] courtesy phone call may have

       been unnecessary. A courtesy copy of the complaint to [the Insurer] may have

       been unnecessary.” Tr. p. 20. And even if Vick erred by failing to send a

       courtesy copy of the complaint to the Insurer, our supreme court made it clear

       in Boles that “counsel’s failure to notify the carrier of the entry of a lawsuit

       would not, standing alone, justify the trial court in setting aside the default

       judgment.” 449 N.E.2d at 290.


             B. Landlords’ Assertion that they had Done all that was Required

[22]   Landlords acknowledge that Vick’s failure to notify the Insurer alone is

       insufficient to support setting aside default judgment. However, they contend

       that the failure to notify coupled with the Landlords’ belief that they had done

       all they needed to do with regard to the claim was sufficient to support the trial

       court’s order. Landlords cite to two cases from our supreme court and one case

       from this court to support their argument.
       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 10 of 17
[23]   In Whittaker v. Dail, 584 N.E.2d 1084 (Ind. 1992), Dail sued Whittaker for

       injuries sustained during an alleged battery, and Whittaker failed to attend the

       bench trial. Id. at 1084–85. After hearing testimony from Dail and her

       witnesses, the trial court entered judgment against Whittaker. Four days after

       trial, attorneys for Whitaker entered an appearance and moved to set aside the

       default judgment.


[24]   Explaining his failure to appear, Whittaker testified that after he received notice

       of the pre-trial conference, he called his insurer and had an understanding that

       it would provide an attorney for him. A claims adjuster testified that she spoke

       with Whittaker and then attempted to employ a law firm to represent him. An

       attorney for the firm then testified and stated that he met with the claims

       adjuster, but it was his misunderstanding that he was to be employed to file a

       declaratory judgment against Whittaker, not to defend him. The trial court

       denied the motion to set aside default judgment, and Whittaker appealed.


[25]   Our supreme court determined that the trial court abused its discretion when it

       failed to set aside default judgment because it was clear that a “‘breakdown in

       communication’ occurred giving rise to Whittaker’s legitimately-held belief that

       his insurance carrier would hire a lawyer to represent him.” Id. at 1087. The

       Whittaker court analogized the case to Boles and went on to explain, “we further

       recognize that Boles does not stand for the proposition that every breakdown in

       communication requires that a judgment be set aside.” Id. The primary factors

       for the Whittaker court were that: (1) there was unchallenged credible testimony



       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 11 of 17
       of a breakdown in communication, and (2) there was no evidence of any “foot

       dragging” by Whittaker. Id.


[26]   In Flying J, Inc. v. Jeter, 720 N.E.2d 1247 (Ind. Ct. App. 1999), Jeter was injured

       when she slipped and fell in a Flying J convenience store. Id. at 1248. She filed

       a complaint against Flying J, and, after Flying J failed to respond, Jeter filed

       for, and the trial court granted, default judgment. Flying J filed a motion to set

       aside the judgment asserting that a breakdown in communication had occurred,

       and the breakdown constituted excusable neglect. Flying J explained that one of

       its employees had instructed Flying J’s insurance adjuster to retain a law firm

       when the suit was filed. The adjuster assumed that Flying J would inform him

       when it was served, and thus he never retained the law firm. Flying J thought it

       had confirmed that the adjuster would retain counsel immediately. The trial

       court denied the motion to set aside default judgment, and Flying J appealed.


[27]   A panel of this court reversed the trial court’s decision and explained, “Flying J

       contacted its insurance adjuster . . . and instructed him to hire a particular law

       firm to defend Jeter’s negligence suit. Flying J reasonably believed it had taken

       the appropriate measures to hire an attorney.” Id. at 1249. The court analogized

       the breakdown in communication to that in Whittaker and noted, “the failure on

       the part of Flying J to file an answer was not the result of its ‘foot dragging’ and

       instead due to its misunderstanding with [the adjuster].” Id. at 1250.


[28]   And in Coslett v. Weddle Brothers Construction Company, Coslett’s Furniture filed

       suit against Weddle Brothers for negligent delay in constructing a bridge. 798


       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 12 of 17
       N.E.2d at 860. When Weddle Brothers received the complaint, it sent a copy to

       its insurance agent. However, Weddle Brothers never responded to the

       complaint, and the trial court entered default judgment. A claims manager for

       the insurance company wrote to Weddle Brothers roughly six weeks later

       advising it that Coslett’s Furniture’s claims were not covered under the policy.

       After receiving this letter, Weddle Brothers immediately retained counsel and

       moved to set aside the default judgment. The trial court set aside the default

       judgment, but a panel of this court reversed, and our supreme court granted

       transfer.


[29]   Our supreme court affirmed the trial court’s ruling and relied in large part on

       the language the trial court used in its order. The trial court in Coslett stated,

       “One can easily argue that Weddle Brothers did respond to this lawsuit in a

       reasonable manner. It argues that it handled the complaints the way it always

       does, by notifying its insurance company.” Id. at 862. The Coslett court

       determined that the trial court’s ruling was supported by evidence of excusable

       neglect and deferred to its decision.


[30]   Landlords cite to Whittaker, Flying J, and Coslett to support its claim that “there

       was an obvious breakdown between Landlords and their insurer” and that

       “Landlords believed they had done all they needed to do with the Complaint,

       since they informed Wamsley’s counsel of the perceived defects in the claim,

       had already forwarded Wamsley’s claim to their insurer, and since Wamsley[’s]

       counsel had already been in contact with Landlords’ insurer . . . .” Appellees’

       Br. at 22. Based on the facts and circumstances before us, we disagree.

       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 13 of 17
[31]   This was not an example of a breakdown in communication, but rather a

       complete lack of communication. Landlords’ counsel at the hearing to set aside

       default judgment acknowledged, “Whether the defendant should have told her

       insurer after she got a copy of the complaint, clearly, she should have.” Tr. p.

       21. In Whittaker, Flying J, and Coslett, each defendant contacted their insurance

       agency about the suit, and in each case the breakdown in communication

       occurred after the insurers had been notified. Here, the Landlords never sent a

       copy of the complaint or summons to the Insurer, and there is no evidence that

       the Landlords ever had had any discussions about the suit with the Insurer prior

       to the trial court’s entry of default judgment.


[32]   The Landlords’ contention that they believed they had done all they needed to

       do with the complaint is not persuasive. First, as stated above, Landlords never

       forwarded the complaint to the Insurer or discussed it with them. Cf. Boles, 449

       N.E.2d at 289, Whittaker, 584 N.E.2d at 1086, Coslett, 798 N.E.2d at 860; Flying

       J, Inc., 720 N.E.2d at 1248, Shane v. Home Depot USA, Inc., 869 N.E.2d 1232,

       1236 (Ind. Ct. App. 2007). Second, after receiving the complaint, New

       Generation Management, Inc.’s president placed the complaint in a filing

       cabinet for storage. And third, the Landlords are not defendants that are

       unaccustomed to receiving complaints or dealing with lawsuits. Wamsley

       introduced evidence that the Landlords were regularly involved in small claims

       and civil collections cases. See Appellant’s App. pp. 72–75.


[33]   Even if we accept the Landlords’ contention that they are not “sophisticated

       litigants,” we certainly cannot say that the Landlords are “sympathetic

       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 14 of 17
       defendant[s]” as envisioned by the Smith court, and we reiterate its holding that

       “[t]he judicial system simply cannot allow its processes to be stymied by simple

       inattention.” 711 N.E.2d at 1262; see also Huntington Nat. Bank v. Car-X Assoc.

       Corp., 39 N.E.3d 652, 658 (Ind. 2015) (holding that a bank familiar with

       foreclosure actions that fails to respond to a complaint and summons because of

       an employee’s disregard for the mail cannot successfully allege excusable

       neglect). Wamsley notes, “Landlords manage an apartment complex. To be

       entrusted with such management of real property indicates a level of

       sophistication.” Reply Br. at 27. We agree. While Landlords’ status as a litigant

       may not rise to the level of “savvy” and “sophisticated” as the bank described

       by our supreme court in Huntington National Bank, 39 N.E.3d at 658, they are

       certainly experienced with litigation and the judicial procedural process through

       eviction proceedings, if nothing else.


[34]   Simply put, it would be inaccurate to conclude, as our supreme court stated in

       Boles and implied in Whittaker, that Landlords “had done everything that

       apparently needed to be done” upon receipt of notice to secure representation

       and answer the complaint. Boles, 449 N.E.2d at 291. Vick stated in part during

       the hearing on the motion to set aside default judgment:


               Now, the idea of somebody looking at a complaint, seeing the
               summons, seeing that their company, of which they are
               president, is named in the complaint, responding to the
               complaint by a letter to opposing counsel and then not doing
               anything to follow up on that, I don’t think that that’s excusable
               neglect.


       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 15 of 17
       Tr. p. 23. We agree. Here, the Insurer was on notice that Wamsley would

       pursue and litigate all legal claims available. Appellant’s App. p. 63. And the

       Landlords were properly served with a complaint and summons and never

       consulted with the Insurer. Vick’s failure to send a courtesy copy of the

       complaint to the Insurer is insufficient on its own to set aside default judgment.

       See, e.g., Boles, 449 N.E.2d at 290. Landlords explain that they “never forwarded

       the Complaint to the insurer because they were unaware that the insurer was no

       longer being kept informed by counsel for Wamsley.” Appellees’ Br. at 27.

       While this may very well be true, it demonstrates a striking lack of attention by

       Landlords. Although Vick was doing his job by communicating with the

       Insurer about his client’s claim, he had no duty to notify the Insurer of the

       lawsuit. See, e.g., Boles, 449 N.E.2d at 290. Rather, Landlords’ “untimely

       response to service is wholly attributed to the defaulted part[ies’]

       inattentiveness,” and “[t]here was no true breakdown in communication

       between agents of the party that caused the part[ies’] failure to appear.”

       Huntington Nat. Bank, 39 N.E.3d at 657.


[35]   Therefore, while we are aware of the high level of deference accorded to trial

       courts in these decisions and the preference in Indiana for resolving cases on the

       merits, the Landlords’ inattention to the complaint and summons and their

       failure to consult with or discuss the suit with the Insurer may constitute

       neglect, but it does not constitute excusable neglect under Indiana Trial Rule

       60(B)(1). See Smith, 711 N.E.2d at 1262; Huntington Nat. Bank, 39 N.E.3d at

       658.


       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 16 of 17
                                                  Conclusion
[36]   Based on the facts and circumstances before us, the trial court’s decision to set

       aside Wamsley’s default judgment against the Landlords for excusable neglect

       was an abuse of discretion. Accordingly, we reverse and remand to the trial

       court with direction to reinstate default judgment against Landlords and in

       favor of Wamsley.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018   Page 17 of 17
