Whittaker v. Dail

• Decision Date: 04 March 1991
• Docket Number: No. 27A02-9007-CV-424,27A02-9007-CV-424
• Citation: 567 N.E.2d 816
• Parties: Richard WHITTAKER, Defendant-Appellant, v. Susan DAIL, Plaintiff-Appellee. 1
• Court: Indiana Appellate Court

Page 816

567 N.E.2d 816

Richard WHITTAKER, Defendant-Appellant, v. Susan DAIL, Plaintiff-Appellee.

No. 27A02-9007-CV-424. ¹

Court of Appeals of Indiana,

Fifth District.

March 4, 1991.

Charles F. Robinson, Jr., Linda Y. Hammel, Yarling Robinson Hammel & Lamb, Indianapolis, for defendant-appellant.

P. Robert Dawalt, Jr., Marion, for plaintiff-appellee.

SHARPNACK, Judge.

Whittaker appeals from a judgment in favor of Dail and the denial of his motion for relief from that judgment under Ind. Trial Rule 60(B)(1). The judgment was for $99,423.90 in actual damages and $198,757.80 punitive damages. The judgment was entered after the court, without a jury, received evidence presented by Dail on the day the case had previously been set for trial by jury. Neither the defendant Whittaker nor any attorney representing him was present. We affirm.

Whittaker raises six issues, which we restate and arrange as follows:

1. Could the trial court enter the judgment for damages without having given the three day notice required by Trial Rule 55(B)?

2. Was the trial held prior to the entry of judgment required to be by jury?

3. Did the trial court abuse its discretion by denying defendant's motion for relief from judgment under Trial Rule 60(B)(1)?

4. Were the damages awarded as actual damages excessive?

5. Could punitive damages be awarded when the evidence showed that the defendant had already been convicted and punished criminally for his actions which were also the basis for the award of punitive damages?

6. Were the damages awarded as punitive damages excessive?

The facts pertinent to the appeal begin with an incident between Whittaker and Dail which occurred on June 21, 1987. On September 3, 1987, Whittaker pleaded guilty to the misdemeanor of battery charged in connection with the incident. He was fined $1.00 and costs, given a sixty A succession of attorneys represented Whittaker, appearing and subsequently withdrawing primarily for economic reasons. Even so, discovery was had, depositions were taken, summary judgment motions were made and denied, and Dail was examined at Whittaker's behest by a psychiatrist and a therapist in connection with her claimed injuries.

(60) day suspended sentence, and placed on probation for one year on condition that he stay away from Dail. Dail, on September 3, 1987, filed her complaint in this case alleging injuries caused by Whittaker and praying for actual and punitive damages.

The last of Whittaker's attorneys withdrew their appearance on January 31, 1990. The case had been set, on January 8, for trial on March 5, 1990. Whittaker was aware of that setting. On February 21, 1990, the court set the case for a pre-trial conference on February 28, 1990. It is not clear whether a notice of this pre-trial was sent to Whittaker himself. As of February 21, 1990, there was no appearance of any attorney on file for him. On February 28, 1990, Whittaker did not appear at the pre-trial conference and the judge called Whittaker and told him that the case was set for trial on Monday, March 5, 1990. In that conversation, Whittaker said he thought he had an attorney, but could not remember his name. At the pre-trial conference the attorneys for Dail waived trial by jury.

On March 5, 1990, neither Whittaker nor any attorney representing him was present at the time set for the trial to commence. The trial judge indicated that he was defaulting Whittaker and the case proceeded with the court receiving evidence as to the events which occurred on July 27, 1987, and the injuries sustained by the plaintiff and the effect of the events and the injuries upon her. On March 5, 1990, he entered the following judgment:

Comes now the Plaintiff and Defendant fails to appear and is defaulted herein. This matter being set for trial on March 5, 1990, at 9:00 A.M.

Evidence is heard and the Court being duly advised in the premises makes the following finds [sic] of fact, to-wit:

1. That Defendant, Richard Whitaker, did willfully and maliciously injure Plaintiff by striking her.

2. That as a result, Plaintiff suffered extreme psychological and emotional injuries.

3. That the Court assesses actual damages of and from Defendant in the sum of $99,423.90.

4. That the Court assesses Punitive Damages of and from Defendant in the sum of $198,757.80.

That there is due from Defendant to the Plaintiff the sum of $298,181.70 plus Court costs in the sum of $55.00.

IT IS THEREFORE CONSIDERED AND ADJUDGED, by the Court that Plaintiff recover of said Defendant the sum of $298,181.70 together with costs in the amount of $55.00.

(Record, 158)

On March 9, 1990, attorney Robinson appeared for Whittaker and filed a motion to set aside default judgment supported by affidavits which indicated in substance that attorney Robinson had been contacted on February 22, 1990, by Ms. Craft, a senior casualty claim representative of Allstate Insurance Company, regarding the claim of Susan Dail against Whittaker, and that they discussed possible coverage defenses available to Allstate on its home owners policy with Whittaker. Attorney Robinson was under the impression that what Ms. Craft wanted from him was the filing of a declaratory judgment action on behalf of Allstate with regard to its policy coverage defenses. He was not made aware that Allstate had intended for him to take on the defense of Whittaker until he was informed of the default judgment taken against Whittaker on March 8, 1990. Ms. Craft indicated that Allstate first received notice of the claim against Whittaker on February 16, 1990, and that she addressed to Whittaker a reservation of rights letter on February 20, 1990. She indicated that she also spoke to Whittaker on February 20, 1990, at which time she was told by him that there was a trial scheduled in the Grant Circuit Court for March 5, 1990. On March 29, 1990, attorney Robinson filed a On May 1, 1990, the court held a hearing on the motions to set aside default judgment and to correct error. At that hearing testimony was received from Whittaker, Ms. Craft and attorney Robinson. On May 3, 1990, the court denied the motion to set aside judgment and the motion to correct errors. Other facts pertinent to the appeal will be supplied as we go along.

motion to correct error on the ground that the damages awarded were excessive.

Resolution of the issue as to whether the trial court was required to give a three day notice to Whittaker before a judgment could be entered against him turns on an analysis of the proceedings in the trial court. Trial Rule 55(B) provides that, "If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by a representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application." If the proceeding below that led to the judgment was a proceeding to obtain a default judgment, three days notice was required. Horsley v. Lewis (1983), Ind.App., 448 N.E.2d 41, 43. A defendant who has not been properly defaulted is entitled to a trial on the merits on the case as to liability and damages without regard to whether or not he is present at that trial. Pinkston v. Livingston (1990), Ind.App., 554 N.E.2d 1173; Hampton v. Douglass (1983), Ind.App., 457 N.E.2d 618; Aetna Securities Co. v. Sickels (1949), 120 Ind.App. 300, 88 N.E.2d 789; Indiana State Board of Medical Registration and Examination v. Pickard (1931), 93 Ind.App. 171, 177 N.E. 870.

Whittaker relies on Horsley and Pinkston to support his argument that the court erred in not giving the three day notice required by Trial Rule 55. In Horsley the attorney for the defendant, after having filed an answer denying the allegations of the plaintiffs' complaint, withdrew his appearance. No other attorney appeared for the defendant, and the plaintiffs moved for a default of defendant on the apparent theory that the withdrawal by his counsel had the effect of withdrawing the answer that had been filed by his counsel and that, therefore, the defendant was in default by not having filed an answer to the complaint. On the same date the application for default was filed, and without any notice to the defendant, the court entered default. The court of appeals reversed and ordered the vacation of the default judgment on the sole ground that the court had failed to give the three day notice and hold a hearing on the application for default as required by Trial Rule 55(B). Judge Neal concluded the opinion: "[w]e hold that where counsel appears and files a responsive pleading, and then withdraws his appearance, the litigant for purposes of T.R. 55(B) has appeared and notice of default is required." Horsley, 448 N.E.2d at 43. It does not appear in Horsley that any trial was ever held on the issue of liability of the defendant.

In Pinkston the defendant was not present in court on the day set for trial. On that day, the trial court entered a default judgment against her and some months later held a hearing on damages and entered judgment against the defendant, who again was not present. There was no trial on the issue of liability. The court of appeals, in reversing the denial of a Trial Rule 60(B) motion, included in its rationale a consideration of the manner in which the default judgment had been made, as follows:

Finally, there is another reason for reversal not specifically raised by Pinkston, and, therefore, arguably waived. Nevertheless, we cannot allow the trial court's procedure in entering the default judgment to pass without comment. In Horsley v. Lewis (1983), Ind.App., 448 N.E.2d 41, we held that when defense counsel has appeared, filed responsive pleadings and withdrawn, the defendant is entitled to three days notice of default pursuant to Ind.Trial Rule 55(B). Here, the record does not reveal that Livingston applied for default judgment, and Pinkston was given no notice of an application for default judgment....