                                                                        FILED
                                                                   May 18 2020, 9:13 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Robert D. King, Jr.                                       Thomas E. Rosta
David R. Thompson                                         Metzger Rosta LLP
The Law Office of                                         Noblesville, Indiana
 Robert D. King, Jr. P.C.
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian Denny,                                              May 18, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-CT-2576
        v.                                                Appeal from the
                                                          Marion Superior Court
Nathan Vanoy,                                             The Honorable
Appellee-Defendant                                        Marc Rothenberg, Judge
                                                          The Honorable
                                                          Burnett Caudill, Magistrate
                                                          Trial Court Cause No.
                                                          49D07-1806-CT-025033



Vaidik, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020                            Page 1 of 7
                                           Case Summary
[1]   Brian Denny obtained a default judgment against Nathan Vanoy. Vanoy later

      moved to set aside the default judgment based on excusable neglect, and the

      trial court granted his motion. Denny now appeals.


[2]   To set aside a default judgment based on excusable neglect, the movant must

      establish the grounds for relief by affidavit or other evidence. Here, Vanoy

      introduced no affidavit, testimony of witnesses, or other evidence to establish

      excusable neglect. We therefore reverse the trial court’s grant of Vanoy’s

      motion to set aside and remand this case to the trial court.



                             Facts and Procedural History
[3]   On February 26, 2017, Vanoy ran a red light and struck a car driven by Denny.

      Tr. p. 4. On June 25, 2018, Denny filed a complaint against Vanoy in Marion

      Superior Court. Vanoy was served on September 14, 2018. Id. at 2.


[4]   On February 25, 2019, over five months after Vanoy was served, an adjuster

      from GEICO (Vanoy’s insurer) called Denny’s counsel “completely out of the

      blue” regarding the suit filed against Vanoy. Id. at 5. Denny’s counsel

      confirmed that suit had been filed and that service had been perfected on

      September 14, 2018. That same day, Denny’s counsel emailed the GEICO

      adjuster a copy of the complaint, crash report, and proof of service. Appellant’s

      App. Vol. II p. 38.



      Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020          Page 2 of 7
[5]   Two weeks later, on March 11, Denny moved for default judgment against

      Vanoy, as no one had appeared for Vanoy since the phone call. The trial court

      granted the motion on March 19 and scheduled a damages hearing for May 15.

      On May 14, Vanoy, represented by an attorney at Metzger Rosta LLP, moved

      to set aside the default judgment based on excusable neglect under Indiana Trial

      Rule 60(B)(1). The motion to set aside alleges:


              5. The claims examiner at GEICO Direct has stated that she
              spoke with an individual at Metzger Rosta LLP on or about
              March 1, 2019, regarding the lawsuit and a need to appear for the
              Defendant in this case, but no documentation was forwarded to
              counsel’s office at that time. The undersigned counsel was then
              on vacation and did not return to Indiana until approximately
              March 18, 2019.


              6. According to the online docket, counsel for Plaintiff filed a
              motion for default judgment in this case on or about March 12,
              2019, or only about two weeks after sending the lawsuit
              documentation to the claims examiner at GEICO. A copy of the
              motion for default judgment was not sent to the GEICO
              examiner by counsel.


              7. On or about April 4, 2019, the GEICO Direct adjuster
              contacted the undersigned counsel and inquired into the status of
              the lawsuit, but counsel did not recall any prior conversation
              regarding this case and did not have a copy of the applicable
              lawsuit until it was then sent to him on April 4, 2019.


              8. The undersigned counsel then checked the online docket and
              learned that a motion for default judgment was filed by counsel
              for Plaintiff in this case and that the case has been scheduled for a
              damages hearing on May 15, 2019.

      Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020            Page 3 of 7
      Id. at 23. Vanoy argued that excusable neglect existed:


              In this case, it is clear that (a) neither Vanoy nor Plaintiff sent a
              copy of the lawsuit to GEICO Direct until late in February 2019;
              (b) counsel filed his motion for default only two (2) weeks after
              sending notice of the lawsuit and service on GEICO Direct; and
              (c) there is some confusion as to GEICO Direct’s contact with
              the undersigned counsel and/or his office to assign the file to
              counsel in this matter in a timely manner after receipt of the
              documents from Plaintiff’s counsel, as the adjuster contends she
              spoke to a member of counsel’s firm on March 1, 2019, or only
              four days after receipt of the documents from Plaintiff’s counsel.


      Id. at 25. Vanoy attached an affidavit from himself only. The affidavit, however,

      does not address excusable neglect; rather, it alleges that Vanoy had a

      meritorious defense because he believed Denny “was exceeding the speed limit

      at the time of the accident. It is also possible that he failed to take proper

      control of his vehicle to avoid the accident or to take proper precautions to

      avoid a collision.” Id. at 27.


[6]   Denny filed a response, arguing that Vanoy presented no admissible evidence of

      excusable neglect:


              7. It is important to note that there is no admissible evidence
              before this Court that a Geico claims examiner contacted defense
              counsel on March 1, 2019, regarding this lawsuit and a need to
              appear. “It is axiomatic that the arguments of [Defendant’s]
              counsel are not evidence.” What’s more, the statement
              attributed to the unidentified claims examiner is hearsay. No
              Geico employee, or any other person, has submitted an affidavit
              stating under oath that a phone call was placed to defense
              counsel’s firm on March 1, 2019. Defendant has not produced

      Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020                Page 4 of 7
              any phone records evidencing a call from Geico to defense
              counsel’s firm. Defense counsel concedes in the motion to set
              aside that defense counsel does not recall any such conversation.
              And, Defendant has not provided an affidavit from anyone else
              in defense counsel’s firm stating that another person in the firm
              spoke with a Geico claims examiner regarding this case.


              8. Given the complete lack of admissible evidence, this Court
              cannot make a factual finding that Geico placed a call to defense
              counsel’s firm on March 1, 2019.


              9. Thus, the evidence before this Court is that Defendant was
              properly served with the complaint and summons on September
              14, 2018; that despite this proper service, Defendant did nothing
              to appear and defend[] this case; and that Geico also did nothing
              to defend this case, despite Plaintiff sending a courtesy copy of
              the complaint to Geico.


      Id. at 30-31.


[7]   In August 2019, the trial court held a hearing on Vanoy’s motion to set aside.

      Vanoy presented no evidence at the hearing; rather, he presented only

      argument. See Tr. pp. 2-5. Thereafter, the trial court granted Vanoy’s motion to

      set aside.


[8]   Denny now appeals.



                                 Discussion and Decision
[9]   Denny appeals the trial court’s grant of Vanoy’s motion to set aside the default

      judgment. A default judgment may be set aside because of mistake, surprise, or

      Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020            Page 5 of 7
       excusable neglect if the motion to set aside is filed not more than one year after

       the judgment was entered and the moving party also alleges a meritorious claim

       or defense. Ind. Trial Rule 60(B)(1). The burden is on the movant to establish

       the grounds for relief “by affidavit or other evidence.” Southside Auto. of

       Anderson, Inc. v. Smith, 114 N.E.3d 551, 554-55 (Ind. Ct. App. 2018); see also

       Bennett v. Andry, 647 N.E.2d 28, 35 (Ind. Ct. App. 1995) (stating that to obtain

       relief under Trial Rule 60(B), the movant must introduce “some admissible

       evidence which may be in the form of an affidavit, testimony of witnesses, or

       other evidence obtained through discovery”); Bross v. Mobile Home Estates, Inc.,

       466 N.E.2d 467, 469 (Ind. Ct. App. 1984) (“The catalyst needed to obtain the

       proper relief is some admissible evidence which may be in the form of an

       affidavit, testimony of witnesses, or other evidence obtained through

       discovery.”).


[10]   An appellate court reviews a trial court’s decision to set aside a default

       judgment for abuse of discretion, resolving any doubt as to the propriety of

       default judgment in favor of the defaulted party. Wamsley v. Tree City Vill., 108

       N.E.3d 334, 335-36 (Ind. 2018).


[11]   Denny contends that Vanoy failed to prove excusable neglect by affidavit,

       testimony of witnesses, or other evidence. Vanoy doesn’t dispute this; rather, he

       says he presented “argument[]” that there was excusable neglect due to “a

       breakdown of communication” between GEICO and Metzger Rosta LLP.

       Appellee’s Br. p. 5.



       Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020              Page 6 of 7
[12]   But argument isn’t enough. The basis of Vanoy’s claim that excusable neglect

       existed is that a GEICO adjuster “contends she spoke to a member of counsel’s

       firm on March 1, 2019.” Appellant’s App. Vol. II p. 25; see also Tr. p. 3

       (Vanoy’s counsel stating that GEICO “allegedly contacted” his firm on March

       1, 2019). Vanoy, however, presented no affidavit or testimony from this

       adjuster. With no evidence to show that the adjuster called Metzger Rosta LLP

       on March 1, 2019, there is nothing to support Vanoy’s claim that there was “a

       breakdown of communication.” This then leaves evidence that Vanoy was

       served on September 14, 2018; that despite this service, Vanoy did not appear

       and defend the suit; and that GEICO did nothing to defend the suit, despite

       Denny’s counsel sending the complaint and related documents to GEICO. See

       Appellant’s Br. p. 12 (noting that “Vanoy and his counsel strategically omit[ted]

       in [Vanoy’s] affidavit any explanation for why the lawsuit went unaddressed

       from September 1[4], 2018 through March 11, 2019, a period of [almost] six

       months”). This is inattention, not excusable neglect. See Smith v. Johnston, 711

       N.E.2d 1259, 1262 (Ind. 1999) (“The judicial system simply cannot allow its

       processes to be stymied by simple inattention.”). The trial court abused its

       discretion in granting Vanoy’s motion to set aside the default judgment.


[13]   Reversed and remanded.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020            Page 7 of 7
