Bennett v. Andry
| Decision Date | 28 February 1995 |
| Docket Number | No. 49A04-9407-CV-269,49A04-9407-CV-269 |
| Citation | 647 N.E.2d 28 |
| Court | Indiana Appellate Court |
| Parties | Louis Alvin BENNETT and Day & Night Transportation Services, Inc., Appellants (Defendants Below), v. Jonathon Ryan ANDRY, Appellee (Plaintiff Below). |
Louis Alvin Bennett (Bennett) and Day & Night Transportation Services, Inc. (Day & Night), appeal from the denial of their motion to correct errors alleging the trial court erred in denying their motion to set aside Jonathon Ryan Andry's (Andry) default judgment entered against Bennett and Day & Night in the amount of $80,705.00.
We affirm.
Whether the trial court abused its discretion in denying Bennett and Day & Night's Ind.Trial Rule 60(B) motion to set aside Andry's default judgment?
On April 18, 1990, Andry was operating his 1979 Mercury in the far right-hand lane of westbound I-465. At the same time, Bennett, a Day & Night employee, was operating a semi-tractor trailer westbound on I-465 in the lane next to Andry. Suddenly, the semi turned into the far right-hand lane occupied by Andry, struck the driver's door of Andry's car, and caused it to spin in front of the semi. The truck then struck the rear of Andry's car causing it to spin across three lanes of traffic into the interstate median.
Andry's car was "totaled" in the collision. Three weeks later, Carolina Casualty Insurance Company (Carolina), Bennett and Day & Night's insurer, settled Andry's property damage claim for $2,100.00. Settlement as to Andry's personal injury claim was not reached, however, and Andry retained the services of attorney Edward Goebel, Jr. to represent his interests. On July 29, 1991, Goebel notified Carolina that he represented Andry.
Settlement negotiations between Carolina and Goebel apparently met with little success and on April 16, 1992, nearly two years after the accident, Goebel filed suit against Bennett and Day & Night. The same day, Goebel sent a letter to Carolina which states in pertinent part:
R. at 29. Service of the complaint was obtained on both Bennett and Day & Night by certified mail on April 22, 1992.
In September of 1992, Andry and his father became dissatisfied with Goebel's services and hired another attorney, Mark E. Need. Goebel, however, did not release Andry's case file to Need. Nevertheless, in a letter to Carolina dated January 28, 1993, Goebel stated in pertinent part:
R. at 69. Thereafter, on January 29, 1993, Andry and his father went to Goebel's office, obtained the file, and turned it over to Need. In his affidavit, Goebel claims that "to the best of his belief," he explained to Andry that he "told representatives of Day and Night Transportation that it would not be necessary to seek representation to protect their interests." R. at 62-3. However, the affidavits of both Andry and his father deny Goebel's claim.
Additionally, Goebel claims that his April 16, 1992 letter to Carolina granting it an indefinite extension of time to answer was included in the Andry file. Upon receipt of the file, Need examined it to determine the status of the case. Need denies the letter was included in the file. Moreover, despite Goebel's claim to the contrary, Need insists that Goebel never informed him of the extension of time.
On February 3, 1993, Need entered his appearance on Andry's behalf and served copies upon Bennett and Day & Night--"as there was no attorney of record for them." Appellee's brief at 4. The same day, Goebel withdrew his appearance for Andry. Copies of the withdrawal were served upon Bennett and Day & Night. Subsequently, Need turned the Andry file over to co-counsel, Roy Tabor. Tabor's legal assistant claims the file not only did not contain Goebel's April 16, 1992 letter to Carolina, but also that the file did not contain a July 29, 1991 letter from Goebel to Carolina and three letters from Carolina to Goebel--all of which Goebel claims were included in the file.
On March 26, 1993, Tabor entered his appearance in the case and served copies of the appearance upon both Bennett and Day & Night. On April 13, 1993, Andry filed an application for default judgment which was granted by the trial court on the same day. On May 27, 1993, the trial court held a damage hearing and entered final judgment against Bennett and Day & Night for $80,705.00. Neither Bennett nor Day & Night attended the hearing.
In a letter dated June 1, 1993, Andry's counsel notified Bennett, Day & Night, and Carolina of the default judgment. On August 23, 1993, both Bennett and Day & Night, through an attorney retained by Carolina, moved the court to set aside the default judgment pursuant to Ind.Trial Rule 60(B) on the grounds of excusable neglect and fraud claiming they relied on Goebel's promise that Carolina need not hire an attorney to file an answer unless settlement negotiations failed. A hearing was held on February 18, 1994, and the trial court denied the motion on February 22, 1994. Thereafter, Bennett and Day & Night filed a motion to correct errors alleging the trial court erred in failing to set aside the default judgment which, because the trial court did not rule upon it, was deemed denied. Ind.Trial Rule 53.3(A).
Our standard of review of the denial of a motion to set aside a default judgment pursuant to Ind.Trial Rule 60(B) is limited to determining whether the trial court abused its discretion. Whelchel v. Community Hospitals (1994), Ind.App., 629 N.E.2d 900, 902, reh'g denied, trans. denied. An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. The trial court's decision on a motion to set aside a default judgment is given substantial deference on appeal. Id.
T.R. 60(B) provides in pertinent part:
On motion and upon such terms as are just the court may relieve a party ... from an entry of default ... for the following reasons:
(1) mistake, surprise, or excusable neglect....
Bennett and Day & Night contend the trial court abused its discretion in denying their motion to set aside the default judgment because their failure to file an appearance and answer was the result of mistake and excusable neglect which was directly caused by a "breakdown in communications." In support of their contention, Bennett and Day & Night direct our attention to Whittaker v. Dail (1992), Ind., 584 N.E.2d 1084, wherein our supreme court reversed the trial court's denial of the Defendant's motion to set aside a default judgment for the reason that a "breakdown in communication" had occurred between the Defendant's insurance company and the attorney it hired to defend the Defendant.
In Whittaker, the Defendant was sued for battery. The Defendant's second attorney filed an answer. After a series of continuances, trial was finally set for March 5, 1990. On January 31, 1990, the Defendant's latest attorneys withdrew from the case because the Defendant had not paid them. The Plaintiff then requested a pre-trial conference which was set one week before the trial. The Defendant did not appear for the pre-trial hearing; however, the trial court personally notified the Defendant by telephone that the cause was set for trial on March 5. On the day of trial, the Plaintiff appeared, but the Defendant did not. The trial court entered a default and proceeded to hear Plaintiff's evidence on damages. The trial court then entered judgment against the Defendant for $298,181.70.
Four days later, two new attorneys entered their appearance on the Defendant's behalf and filed a motion to set aside the default judgment. At the hearing, the Defendant presented evidence of self-defense. The Defendant also testified that after he received the trial court's notification of the March 5th trial date, he contacted Allstate Insurance and had the understanding that Allstate would employ an attorney for him. He further testified that he had not intentionally disregarded the trial court's notice. The Allstate claims adjuster testified that she had talked to the Defendant and was aware of the trial date. She attempted to employ a new attorney to represent the Defendant. However, the attorney testified that he was under the impression that he had been hired to file a declaratory judgment action against the Defendant, rather than to defend him.
The trial court denied the Defendant's motion to set aside the default judgment, and we affirmed. See Whittaker v. Dail (1991), Ind.App., 567 N.E.2d 816. On transfer, the supreme court reversed the entry of default judgment holding:
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