MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Feb 28 2018, 9:33 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Sammons                                       Kristin A. Mulholland
Rensselaer, Indiana                                      Crown Point, Indiana

                                                         Michael P. Irk
                                                         Zionsville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Marina Cartage, Inc., et al.                             February 28, 2018
Appellants-Defendants,                                   Court of Appeals Case No.
                                                         37A05-1709-PL-2146
        v.                                               Appeal from the Jasper Superior
                                                         Court
Cintas Corporation,                                      The Honorable James R. Ahler,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         37D01-1511-PL-928



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018       Page 1 of 7
[1]   Cintas Corporation a/s/o Cintas (Cintas) filed a complaint for damages against

      Harvey L. Windmon, Sr., and Windmon’s purported employers, MAT

      Leasing, Marina Cartage, Inc., and Marina Waste, Inc. (collectively, the

      Corporate Defendants). Windmon and the Corporate Defendants (collectively,

      the Defendants) each failed to appear and were defaulted. They promptly filed

      a joint motion to set aside the default judgment, alleging excusable neglect and

      a meritorious defense. Following a hearing, the trial court denied the motion to

      set aside. On appeal, the Defendants argue that the trial court abused its

      discretion in this regard.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In December 2013, Cintas’s insured Joseph Frank was involved in a motor

      vehicle accident on Interstate 65 in Jasper County. Cintas paid $28,954.63 on

      Frank’s behalf as a result of the collision and then filed a subrogation claim

      against each of the Defendants on November 16, 2015. Cintas alleged in the

      complaint that during the course and scope of Windmon’s employment with

      the Corporate Defendants, Windmon carelessly and negligently failed to

      maintain control of his vehicle, crossed into Frank’s lane of travel, and struck

      Frank’s vehicle.


[4]   Cintas served Windmon with the summons and complaint by certified mail on

      November 18, 2015, at the address in Markham, Illinois that Windmon

      provided the investigating officer at the scene of the accident. Vonnie

      Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018   Page 2 of 7
      Windmon accepted and signed for the certified mail at the residence that

      afternoon.


[5]   Similarly, Cintas served each of the Corporate Defendants, in care of their

      registered agent, by certified mail on November 19, 2015. The Corporate

      Defendants all had the same registered agent – Michael Tadin with an address

      in Chicago, Illinois. Deborah Tadin accepted and signed for the certified

      mailing at this address.


[6]   On March 7, 2016, Cintas filed a motion for default judgment because each of

      the Defendants had failed to appear in the matter. The trial court entered a

      default judgment that same day in the amount of $28,954.63. Michael Tadin,

      on behalf of the Corporate Defendants, received notice of the default judgment

      shortly after it was issued.


[7]   On April 4, 2016, the Defendants filed a Notice of Defendants’ Intent to File for

      Relief Under Rule 60 and Motion for Stay of Execution. The trial court

      granted a sixty-day stay on April 11, and the Defendants moved to set aside the

      default judgment on June 6, 2016. In addition to alleging a meritorious defense

      in the motion, the Defendants alleged that service upon the Corporate

      Defendants “was received by somebody other than the registered agent and the

      registered agent never received service or saw the summons or complaint.”

      Appellants’ Appendix Vol. 2 at 17.


[8]   The trial court held a hearing on the motion to set aside the default judgment

      on November 3, 2016. The Defendants argued that their failure to appear was

      Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018   Page 3 of 7
       due to excusable neglect. In support, they offered the affidavit of Michael

       Tadin, which indicated that he is the registered agent for the Corporate

       Defendants and that he never personally received notice of the complaint. The

       Defendants did not dispute that service was sent to the proper address but

       argued that “the complaint simply never got to Mr. Tadin”. Transcript at 6. No

       evidence was presented regarding what Deborah Tadin did with the mailings

       after she signed for them or how she was associated with the businesses.

       Moreover, the Defendants did not even attempt to make a showing of excusable

       neglect with respect to Windmon’s failure to appear.


[9]    On June 14, 2017, the trial court issued its order denying the motion to set aside

       the default judgment. The Defendants filed a motion to correct error, which the

       trial court denied on August 18, 2017. The Defendants now appeal.

       Additional information will be provided below as needed.


                                           Discussion & Decision


[10]   A trial court’s decision whether to set aside a default judgment is given

       substantial deference on appeal. Shane v. Home Depot USA, Inc., 869 N.E.2d

       1232, 1234 (Ind. Ct. App. 2007). “The trial court’s discretion is broad in these

       cases because each case has a unique factual background.” Id. Thus, in

       reviewing for an abuse of discretion, we will not reweigh the evidence or

       substitute our judgment. Id. We observe, however, that default judgments are

       not favored in Indiana, and “[a]ny doubt of the propriety of a default judgment

       should be resolved in favor of the defaulted party.” Id.


       Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018   Page 4 of 7
[11]   A default judgment may be set aside pursuant to Indiana Trial Rule 60(B)(1)

       upon a finding of excusable neglect so long as the motion to set aside is entered

       not more than one year after the judgment and the moving party also alleges a

       meritorious claim or defense. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d

       859, 860 (Ind. 2003). No clear standards exist for determining what constitutes

       excusable neglect. Shane, 869 N.E.2d at 1234. Excusable neglect has been

       found to include a breakdown in communication that results in a party’s failure

       to appear. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).


[12]   The burden was upon the Defendants to present facts constituting excusable

       neglect.1 See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983).

       They wholly failed to do so. Windmon’s affidavit offered no explanation as to

       why he did not appear or inform his employer of the pending lawsuit. To

       establish excusable neglect, the Corporate Defendants relied exclusively on the

       affidavit of Michael Tadin, in which Tadin indicated that he had not personally

       received notice of the lawsuit. Notably, the Corporate Defendants did not offer

       the affidavit of Deborah Tadin or any evidence regarding what she did with the

       certified mailings after accepting them.


[13]   The bareness of the Defendants’ evidence was addressed in the following

       colloquy between the trial court and defense counsel:




       1
         It is undisputed that the motion to set aside the default judgment was timely filed and that the Defendants
       alleged a meritorious defense.

       Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018            Page 5 of 7
        [Court]:     Is there any dispute that the person who signed for
              those was not a representative of the company or at least
              there’s – counsel’s making there’s been no such argument
              even made to the Court.


        [Counsel]: I don’t have any information whether that person is
             an employee or associated with the company. Um, I don’t
             deny that they are because I simply do not have any
             information. Ah, we will presume from the last name on
             the thing that they are probably associated some,
             somewhere in the company.


        [Court]:     So – So again, again, walk me through the
              allegations though, they did, at least I have no evidence to
              the contrary, that some authoritative person on behalf of
              the company signed for it and then did what?


        [Counsel]: We don’t know. All I know is that the registered
             agent did not receive the ah, notice of the complaint….


                                                ****


        [Court]:    So you gotta show excusable neglect before you
              even get to meritorious defense. Um, so the excusable
              neglect exactly is that they don’t know what happened?


        [Counsel]: That’s all I – That’s all I can offer Judge, is they
             don’t know what happened um, from the time that the
             green card was signed for until they received the Default
             Judgment….


Transcript at 12-13.




Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018   Page 6 of 7
[14]   The facts presented by the Defendants were insufficient to require the trial court

       to set aside the default judgment. See Smith, 711 N.E.2d at 1262. Indeed, there

       are no facts establishing that the neglect in this case – by both Windmon and

       the Corporate Defendants – was excusable. See id. (finding that the neglect was

       not excusable and distinguishing other cases where “the defendants did all that

       they were required to do but subsequent misunderstandings as to the

       assignments given to agents of the defendants resulted in the failure to appear”).


[15]   As our Supreme Court has observed, “[t]he judicial system simply cannot allow

       its processes to be stymied by simple inattention.” Id. The trial court did not

       abuse its discretion by refusing to find excusable neglect in this case.


[16]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018   Page 7 of 7
