MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Jul 07 2017, 6:10 am

the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Bradford R. Shively                                       David W. Stone IV
Jonathan R. Slabaugh                                      Stone Law Office and Legal
Michael J. Roose                                          Research
Sanders Pianowski, LLP                                    Anderson, Indiana
Elkhart, Indiana                                          Andrew B. Jones
                                                          Jones Law Office, LLC
                                                          South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory D. Webster,                                       July 7, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          71A03-1611-CT-2706
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
Michiana Transportation, Inc.                             The Honorable Steven L.
and Michiana Transportation of                            Hostetler, Judge
South Bend, Inc.,                                         Trial Court Cause No.
Appellees-Defendants.                                     71D07-1604-CT-217




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017           Page 1 of 13
                                               Case Summary
[1]   Gregory D. Webster (“Webster”) obtained entries of default against Michiana

      Transportation, Inc. and Michiana Transportation of South Bend, Inc.

      (collectively, the “Michiana Corporations”), and the Michiana Corporations

      subsequently filed motions for Trial Rule 60(B) relief. The trial court granted

      the Trial Rule 60(B) motions, thereby setting aside the entries of default against

      the Michiana Corporations. Webster now appeals, contending that the trial

      court abused its discretion when it granted Trial Rule 60(B) relief.


[2]   We affirm.



                                Facts and Procedural History
[3]   On April 22, 2016, Webster filed a complaint against the Michiana

      Corporations,1 alleging that Webster sustained personal injuries from an

      automobile accident that occurred while Webster was a passenger in a taxi

      owned and operated by the Michiana Corporations. On April 29, 2016, the

      complaint and summons were served upon Nayef Yassine (“Yassine”), who is

      the registered agent, President, and owner of the Michiana Corporations.


[4]   Pursuant to Indiana Trial Rule 6(C), the deadline to answer was twenty days

      after service of the complaint, but the Michiana Corporations failed to timely




      1
          The complaint named additional defendants, but they are not active parties to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017              Page 2 of 13
      answer. Webster moved for entries of default on May 31, 2016, twelve days

      after the deadline to answer, and the trial court granted Webster’s motion.


[5]   The Michiana Corporations belatedly filed their Answers and Affirmative

      Defenses (the “Answers”) on June 21, 2016, and Webster moved to strike the

      Answers on the basis that default had been entered. The Michiana

      Corporations then filed Trial Rule 60(B) motions seeking to set aside the entries

      of default due to excusable neglect. Each Trial Rule 60(B) motion included an

      affidavit from Yassine, and both the motions and the affidavits stated that

      Yassine was an immigrant and non-native English speaker who, in the past

      year, had been frequently hospitalized for medical complications caused by

      lung cancer. The motions stated that Yassine did not fully comprehend his

      obligation to respond, and Yassine averred that he had difficulty understanding

      legal documents in English. The affidavits also stated that Yassine “sought to

      determine if [the driver] was acting in the scope of his employment as an

      independent contractor during the alleged incident,” App. at 46, 52, and that he

      eventually “indicated to [his] attorney that [the taxi driver] was not acting as an

      independent contractor during the alleged incident.” App. at 47, 53. Webster

      opposed the Trial Rule 60(B) motions.


[6]   The trial court heard oral argument on Webster’s motion to strike and the

      Michiana Corporations’ motions. On October 24, 2016, the trial court denied

      Webster’s motion to strike and granted Trial Rule 60(B) relief to the Michiana

      Corporations, thereby setting aside the entries of default.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 3 of 13
[7]   This appeal followed.



                                 Discussion and Decision
[8]   Trial Rule 60(B) provides a means for parties to seek relief from an order or

      judgment, including from entry of default. See Ind. Trial Rule 60(B) (providing

      several grounds upon which a party might seek relief); Henline, Inc. v. Martin,

      169 Ind. App. 260, 348 N.E.2d 416, 419 (Ind. Ct. App. 1976) (determining that

      a party need not wait for default judgment but may attack entry of default by

      means of a Trial Rule 60(B) motion). The rule is a permissive one, giving the

      trial court latitude to relieve a party upon proper motion. See T.R. 60(B)

      (providing that the trial court “may” relieve a moving party “upon such terms

      as are just”). In ruling on a Trial Rule 60(B) motion, the trial court must

      balance the need for an efficient judicial system with the preference for deciding

      disputes on the merits. Huntington Nat. Bank v. Car-X Assoc. Corp., 39 N.E.3d

      652, 655 (Ind. 2015). Indeed, “Indiana law strongly prefers disposition of cases

      on their merits.” Coslett v. Weddle Bros. Const. Co., Inc., 798 N.E.2d 859, 861

      (Ind. 2003).


[9]   A ruling on a Trial Rule 60(B) motion is deemed a final judgment from which

      an appeal may be taken. T.R. 60(C). On appeal, we give substantial deference

      to the trial court’s decision to grant or deny relief, limiting our review to

      whether the trial court abused its discretion. Huntington, 39 N.E.3d at 655. The

      trial court abuses its discretion when its decision is clearly against the logic and

      effect of the facts and circumstances before it or if the court has misinterpreted

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 4 of 13
       the law. Id. Furthermore, in conducting our review, “we will not reweigh the

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


[10]   Here, the Michiana Corporations sought relief for the reason of excusable

       neglect, which is one reason recognized by Trial Rule 60(B). See T.R. 60(B)(1).

       When a party seeks relief on this basis, the party must also “allege a meritorious

       claim or defense.” T.R. 60(B). Webster contends that the Michiana

       Corporations not only failed to demonstrate excusable neglect but also failed to

       allege a meritorious defense. We address Webster’s arguments in turn.


                                          Excusable Neglect
[11]   “A trial court will not be found to have abused its discretion ‘so long as there

       exists even slight evidence of excusable neglect.’” Coslett, 798 N.E.2d at 861

       (quoting Sec. Bank & Trust Co. v. Citizens Nat. Bank of Linton, 533 N.E.2d 1245,

       1247 (Ind. Ct. App. 1989)). Yet, “‘[t]here is no general rule as to what

       constitutes excusable neglect under Trial Rule 60(B)(1).’” Huntington, 39

       N.E.3d at 655 (quoting Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1254 (Ind.

       Ct. App. 1999), trans. denied). Rather, when deciding whether to grant relief

       “because of excusable neglect, the trial court must consider the unique factual

       background of each case.” Coslett, 798 N.E.2d at 861.


[12]   In arguing that the Michiana Corporations failed to demonstrate excusable

       neglect, Webster directs us to several cases in which we affirmed the denial of

       Trial Rule 60(B) relief. Yet, this case presents a different question: whether the

       trial court abused its discretion in granting relief. Here, just twelve days after

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 5 of 13
       the Michiana Corporation missed their deadline to answer, Webster obtained

       entries of default against them. Not long after, the Michiana Corporations

       sought to defend the lawsuit, and explained their failure to timely answer: their

       registered agent was an immigrant business owner who had trouble

       understanding documents in English and had been frequently hospitalized due

       to lung cancer. These unique circumstances present—at a minimum—slight

       evidence of excusable neglect, and slight evidence is all that is required. Thus,

       Webster has not directed us to reversible error in this respect.


                                        Meritorious Defense
[13]   Trial Rule 60(B) states that a party must “allege” a meritorious defense but

       “provides no further guidance as to what constitutes a proper allegation under

       the rule.” Shane v. Home Depot USA, Inc., 869 N.E.2d 1232, 1238 (Ind. Ct. App.

       2007). The Indiana Supreme Court has articulated that the rule “merely

       requires a prima facie showing of a meritorious defense, that is, a showing that

       ‘will prevail until contradicted and overcome by other evidence.’” Outback

       Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 73 (Ind. 2006) (quoting

       Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind. 1999)). In other words, the

       movant must make a prima facie showing that granting the motion will not be

       an empty exercise. See id. We have concluded that a party need not present

       admissible evidence to satisfy this requirement. Shane, 869 N.E.2d at 1232.

       Rather, “[i]t is up to the trial court to determine on a case-by-case basis whether

       a movant has succeeded in making a prima facie allegation.” Id.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 6 of 13
[14]   In determining that the Michiana Corporations alleged meritorious defenses,

       the trial court looked to language in the Answers, noting that the Michiana

       Corporations denied that the driver was an employee. Webster does not

       contend that the trial court improperly looked to the Answers, but instead

       argues that the Michiana Corporations have not shown that their defenses

       “have any merit or are in any way supported by the facts of this case.”

       Appellant’s Br. at 24. Yet, we note that a movant’s burden in this regard is low,

       given that a Trial Rule 60(B) motion “usually occurs during the initial stages of

       a case, making the acquisition and preparation of admissible evidence especially

       difficult.” Shane, 869 N.E.2d at 1238.


[15]   Here, the Michiana Corporations denied that the driver was an employee, and

       Yassine’s affidavits characterize the driver as having “employment as an

       independent contractor.” Appellant’s App. Vol. II at 46, 52. 2 Given that the

       Michiana Corporations denied employing the driver, and in light of general

       references to the driver being an independent contractor,3 there is support for



       2
         It would have been more artful to use a term other than “employment” there, and in subsequent statements,
       but we disagree with Webster that use of the term “employment” on several occasions constituted a judicial
       admission that the driver was an employee. Webster presumably seeks to identify a judicial admission so
       that he may question the merits of the asserted defense, in that common carriers “have a non-delegable duty
       to protect . . . passenger[s], regardless of whether [an employee’s] act is within the scope of employment.”
       Gilbert v. Loogootee Realty, LLC, 928 N.E.2d 625 (Ind. Ct. App. 2010), trans. denied. Nonetheless, we do not
       think that such statements amounted to a judicial admission. See Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct.
       App. 2016) (observing that “[t]o constitute a judicial admission, the attorney must make a clear admission of
       a material fact” and that “[i]mprovident or erroneous statements” resulting from “unguarded expressions” or
       “mere casual remarks” do not amount to judicial admissions) (internal quotation marks omitted), trans.
       denied.
       3
         It is true that Yassine averred that he “indicated to [his] attorney that [the driver] was not acting as an
       independent contractor during the alleged incident,” Appellant’s App. at 47, 53, but the trial court was
       entitled to take this statement in context—and several statements in the Michiana Corporations’ motions and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017               Page 7 of 13
       the trial court’s conclusion that the Michiana Corporations alleged adequate

       defenses. See Bagley v. Insight Communications Co., L.P, 658 N.E.2d 584, 586

       (Ind. 1995) (“In Indiana, the long-standing general rule has been that a

       principal is not liable for the negligence of an independent contractor”); see also

       See Hoosier Health Sys., Inc. v. St. Francis Hosp. & Health Centers, 796 N.E.2d 383,

       387 (Ind. Ct. App. 2003) (noting that “[w]here the purpose of a rule is satisfied,

       [we] will not elevate form over substance,” and determining that although the

       movant did not expressly invoke “meritorious claim” language in its motion,

       the motion nonetheless “adequately advised the trial court” of the claim).


[16]   Ultimately, the extreme remedy of default judgment—and, by extension, entry

       of default—“‘is not a trap to be set by counsel to catch unsuspecting litigants’

       and should not be used as a “gotcha” [device] when an email or even a phone

       call to the opposing party inquiring about the receipt of service would prevent a

       windfall recovery and enable fulfillment of our strong preference to resolve

       cases on their merits.” Huntington, 39 N.E.3d at 659 (quoting Smith, 711

       N.E.2d at 1264). Here, it was approximately two weeks between the missed

       deadline to answer and when Webster obtained entries of default. Thereafter, it

       was only a few weeks until the Michiana Corporations sought to defend the

       lawsuit on its merits. Undoubtedly, the Michiana Corporations ought to have

       selected a different registered agent. Nonetheless, under Trial Rule 60(B), the




       accompanying affidavits, and at the hearing, related to whether the driver was furthering their businesses at
       the time of the alleged collision. Thus, the language “acting as” could be reasonably read to reference
       whether the driver was engaged in his assigned duties for the Michiana Corporations.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017                Page 8 of 13
       trial court was to evaluate the unique circumstances of the case in light of

       Indiana’s strong preference for deciding disputes on the merits. See id. at 655.

       Here, the Michiana Corporations presented the minimal evidence required

       when claiming excusable neglect, and they also alleged prima facie defenses.

       Moreover, Webster faced little prejudice due to the relatively brief delay. Given

       the circumstances and the adequacy of the motions, we cannot say that the trial

       court abused its discretion when it set aside the entries of default and gave the

       Michiana Corporations the opportunity to defend the merits of the lawsuit.



                                               Conclusion
[17]   The trial court did not abuse its discretion when it granted the Michiana

       Corporations’ Trial Rule 60(B) motions.


[18]   Affirmed.


       Vaidik, C.J., concurs.
       Robb, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 9 of 13
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Gregory D. Webster,                                       Court of Appeals Case No.
                                                                 71A03-1611-CT-2706
       Appellant-Plaintiff,

               v.

       Michiana Transportation, Inc.
       and Michiana Transportation of
       South Bend, Inc.,
       Appellees-Defendants.




       Robb, Judge, concurring in result.


[19]   I acknowledge only slight evidence of excusable neglect and a prima facie

       showing of a meritorious defense is necessary to warrant setting aside a finding

       of default, but I write separately to emphasize the facts of this case present the

       narrowest of margins supporting the trial court’s decision to grant relief to the

       Michiana Corporations.


[20]   The majority notes Webster obtained his entry of default “just” twelve days

       after the Michiana Corporations failed to file an answer, and the Michiana

       Corporations filed their answer “not long after” the finding of default was

       entered. Slip op. at ¶ 12. Although the length of the delay is certainly a

       consideration in determining whether the neglect was excusable, I would not

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 10 of 13
       characterize the time between the failure to answer and the entry of default as

       “just” twelve days, nor would I characterize the Michiana Corporations’

       eventual response as being filed “not long after.” Our trial rules impose time

       limits and there are consequences for not meeting them, whether the delay be

       two days, twelve days or six months. Moreover, Yassine may be a non-native

       English speaker with health issues that impacted his personal ability to respond

       to Webster’s lawsuit, but he, as owner and president, had also designated

       himself the registered agent of his company. If he was unable to fulfill the

       duties of a registered agent, whether because his health precluded it or because

       his understanding of legal documents was limited, he should have designated a

       different registered agent. He also apparently had an attorney at or near the

       time this litigation was commenced. See Appellant’s Appendix, Volume II at

       46 (Yassine’s affidavit in support of motion to set aside default, stating, “In

       approximately the first week of June I received a phone call from my attorney’s

       office asking if I was aware of this case.”). Yet, an answer was not filed until at

       least one month after the time to respond had passed.


[21]   If the facts listed above were the only considerations, I would be inclined to say

       the trial court abused its discretion in finding evidence of excusable neglect.

       However, it appears the trial court entered only an interlocutory finding of

       default and had not yet entered a default judgment when the Michiana

       Corporations sought relief. See Supplemental Transcript at 3 (trial court stating

       at motion to set aside hearing that the finding of default “was never reduced to

       a judgment”). Webster still needed to apply for a judgment and establish his


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 11 of 13
       damages. Because the length of the delay is not excessive and because Webster

       did not yet have a default judgment, this case was still pending when the

       Michiana Corporations filed their motion to set aside the finding of default.

       Under these circumstances, I agree the trial court did not abuse its discretion in

       finding slight evidence supporting excusable neglect by the Michiana

       Corporations.


[22]   With regard to the Michiana Corporations’ alleged meritorious defense that the

       driver was an independent contractor for whose negligence the Michiana

       Corporations was not liable, I am concerned that Yassine specifically said in an

       affidavit that the driver was not acting as an independent contractor. See

       Appellant’s App., Vol. II at 47. Yet the trial court chose to credit statements in

       the Michiana Corporations’ answer and motion to set aside that denied liability

       for the driver’s actions because he was an independent contractor. See

       Appellant’s App., Vol. II at 24-25, 43. The majority in a footnote approves

       “reasonably read[ing]” the evidence to support the trial court’s decision to do

       so. Slip op. at ¶ 15 n.3. But the burden is on the movant to prove his

       meritorious defense, Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1258 (Ind. Ct.

       App. 1999), trans. denied, and I believe it is questionable whether the Michiana

       Corporations did so here. Nonetheless, because the movant must only make a

       prima facie showing of a meritorious defense and there is some evidence, even if

       it is self-serving and conflicts with other evidence, that supports the notion the

       driver was an independent contractor, and also because we prefer that cases be

       decided on their merits, I concur in the result reached by the majority that the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 12 of 13
trial court did not abuse its discretion in granting relief to the Michiana

Corporations here.




Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CT-2706 | July 7, 2017   Page 13 of 13
