Denny v. Vanoy
Decision Date | 18 May 2020 |
Docket Number | Court of Appeals Case No. 19A-CT-2576 |
Citation | 148 N.E.3d 1144 |
Parties | Brian DENNY, Appellant-Plaintiff, v. Nathan VANOY, Appellee-Defendant |
Court | Indiana Appellate Court |
Attorneys for Appellant: Robert D. King, Jr., David R. Thompson, The Law Office of Robert D. King, Jr. P.C., Indianapolis, Indiana
Attorney for Appellee: Thomas E. Rosta, Metzger Rosta LLP, Noblesville, Indiana
[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.
[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.
[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:
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 Id. at 27.
[6] Denny filed a response, arguing that Vanoy presented no admissible evidence of excusable neglect:
[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.
[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 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...
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