MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Jun 29 2018, 7:56 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Scott A. Kreider                                         Scott A. Norrick
Kreider McNevin Schiff LLP                               Anderson, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adam Hayden and Above the                                June 29, 2018
Cut Restoration, LLC,                                    Court of Appeals Case No.
Appellants-Defendants,                                   48A02-1712-PL-2863
                                                         Appeal from the Madison Circuit
        v.                                               Court
                                                         The Honorable Thomas Newman,
Genevieve Carmany,                                       Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         48C03-1707-PL-72




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018                 Page 1 of 7
                                          Case Summary
[1]   Appellee Genevieve Carmany (“Appellee”) filed a complaint against

      Appellants Adam Hayden and Above the Cut Restoration LLC (“Appellants”)

      on July 31, 2017. Appellants were served on August 14, 2017. On September

      21, 2017, after no responsive pleading was filed, Appellee moved for default

      judgment. The trial court granted the motion for default judgment on

      September 25, 2017. On October 12, 2017, Appellants filed a motion for relief

      from judgment. A hearing was held on November 1, 2017. The trial court

      denied the motion on November 15, 2017.


[2]   Appellants argue that the trial court abused its discretion when it found that

      there was no excusable neglect and denied Appellants’ motion to set aside the

      default judgment. Finding no abuse of discretion, we affirm the judgment of

      the trial court.



                            Facts and Procedural History
[3]   On July 31, 2017, Appellee filed a complaint against Appellants setting forth

      claims of a breach of warranty, a breach of contract, and a violation of the

      Indiana Home Improvement Contract Act (“HICA”) based on allegedly

      deceptive business practices. Appellants were served with the complaint and

      summons on August 14, 2017. Appellants’ answer was due by September 6,

      2017. On September 21, 2017, after no responsive pleading was filed to the




      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018   Page 2 of 7
      complaint and thirty-eight days after service, Appellee moved for default

      judgment.


[4]   The trial court granted the motion for default judgment on September 25, 2017.

      Two days later, Appellants’ counsel submitted an answer and request for

      enlargement of time. The trial court initially granted the request for additional

      time, but later vacated the order as improvidently granted.


[5]   On October 12, 2017, Appellants, with new counsel, filed a verified motion for

      relief from judgment pursuant to Trial Rule 60(B). Attached to the motion

      were excerpts of text messages regarding this case. On October 16, 2017,

      Appellee filed an opposition to defendants’ request for relief from judgment and

      motion to strike defendant’s exhibits. The trial court held a hearing on

      November 1, 2017. On November 16, 2017, the trial court entered an order

      denying the request to set aside the default judgment.



                                 Discussion and Decision
[6]   A trial court’s decision regarding whether to set aside a default judgment is

      given substantial deference and our review is limited to whether the trial court

      abused its discretion. Nwannunu v. Weichman & Assocs., P.C., 770 N.E.2d 871,

      876 (Ind. Ct. App. 2002). In reviewing the trial court’s decision, we will not

      reweigh the evidence or substitute our judgment for that of the trial court. Id.

      We will only reverse if the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before the court. Id.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018   Page 3 of 7
[7]   “A party seeking to set aside a default judgment under T.R. 60(B)(1) must

      demonstrate that the judgment was entered as a result of mistake, surprise, or

      excusable neglect.” Id. The trial court has broad discretion in this area because

      any determination of mistake, surprise, or excusable neglect must turn upon the

      particular facts and circumstances of each case. Id. While making its

      determination, the trial court must balance the need for an efficient judicial

      system with the judicial preference for deciding cases on the merits. Id.


[8]   In the present case, Appellants were served on August 14, 2017. That same

      day, Appellants contacted an attorney about the Complaint. Appellants

      followed up several times before the deadline to respond had passed. When

      asked, the Appellants’ attorney said that she was “finishing up prep” and things

      were “covered.” App. Vol. II p. 29. Those statements were not necessarily

      untrue. The deadline to respond had not yet passed. Appellants were well

      aware of when the deadline to respond was and were not told that a response

      had been filed on or before the deadline passed.


[9]   Appellants point to several text messages as evidence that there was excusable

      neglect in this case. Appellee, however, raises concerns regarding the

      admissibility of these texts. Assuming, arguendo, that the text messages were

      properly admitted, Appellants still failed to show that the trial court abused its

      discretion. There is a large body of Indiana case law which does not relieve a

      client from the consequences of an attorney’s action or inaction. See, e.g.,

      Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 867 (Ind. Ct. App. 2011)

      (affirming the denial of two motions for relief from judgment and noting even

      Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018   Page 4 of 7
       gross negligence by the attorney was insufficient to establish grounds for relief);

       Thompson v. Thompson, 811 N.E.2d 888, 904 (Ind. Ct. App. 2004) (affirming the

       denial of a motion for relief from judgement on the grounds that the attorney’s

       negligence was binding on the client); Int’l Vacuum, Inc. v. Owens, 439 N.E.2d

       188, 190 (Ind. Ct. App. 1982) (affirming the denial of a motion to set aside

       default judgment where appellant failed to demonstrate that it had exercised

       due diligence in keeping informed about the case).


[10]   Appellants, however, cite to several cases in support of their claim that the

       breakdown in communication with their attorney was enough for purposes of

       Rule 60(b). In many of those cases, the defaulted party produced evidence

       establishing a breakdown in communication with a third party, like an

       insurance company, that was obligated to arrange for counsel for the defaulted

       party as that party’s agent. These cases are easily distinguishable from the

       present case as there is no intervening third party here. The facts of the other

       cases that Appellants cited were so extreme that the courts found that they were

       exceptions to the general rule that attorney negligence is imputed on the client.

       See, e.g., Rose v. Rose, 390 N.E.2d 1056, 1058 (Ind. Ct. App. 1979) (describing

       the attorney’s conduct1 as “unexplainable and inexcusable misfeasance and

       nonfeasance” while the client was “conscientious and diligent”); Kmart Corp. v.

       Englebright, 719 N.E.2d 1249 (Ind. Ct. App. 1999) (finding that the defaulted




       1
        The attorney from Kentucky in Rose repeatedly lied to the client, stating that he had hired an attorney in
       Indiana to represent the client. 390 N.E.2d at 1057.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018                Page 5 of 7
       party’s failure to respond to the complaint constituted excusable neglect where

       defaulted party reasonably relied on representations of opposing counsel which

       granted defaulted party an indefinite extension of time in which to file

       responsive pleadings and counsel’s appearance). These cases are

       distinguishable from the present case because they involved gross misconduct or

       actions by opposing counsel, neither of which is present here. Based on our

       review of the governing caselaw as applied to the facts of this case, the trial

       court did not abuse its discretion when it denied the Appellants’ motion for

       relief from judgment and found that the attorney’s alleged misconduct was

       attributable to the client for purposes of Trial Rule 60(B).


[11]   The judgment of the trial court is affirmed.


       Kirsch, J., concurs.


       Baker, J., concurs in result with opinion.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018   Page 6 of 7
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Adam Hayden and Above the                                Court of Appeals Case No.
       Cut Restoration, LLC,                                    48A02-1712-PL-2863

       Appellants-Defendants,

               v.

       Genevieve Carmany,
       Appellee-Plaintiff




       Baker, Judge, concurring in result.

[12]   Precedent compels me to concur, notwithstanding my abhorrence of default

       judgments where the defaulted party’s counsel has dropped the ball.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1712-PL-2863| June 29, 2018   Page 7 of 7
