Dawn Riddle and Matthew Riddle v. Dennis Cress, Haley Wilkerson, and Helen Cress (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 23 2020, 8:01 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Scott A. Norrick Denise E. Hayden
Anderson, Indiana Lacy Law Office, LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Dawn Riddle and Matthew April 23, 2020
Riddle, Court of Appeals Case No.
Appellants-Plaintiffs, 19A-PL-1471
Appeal from the Johnson Superior
v. Court
The Honorable Marla Clark, Judge
Dennis Cress, Haley Wilkerson, Trial Court Cause No.
and Helen Cress, 41D04-1810-PL-133
Appellees-Defendants.

Shepard, Senior Judge.

[1] Dawn (“Dawn”) and Matthew (“Matthew”) Riddle (collectively “the Riddles”)

appeal from the trial court’s order granting a motion to set aside a default

judgment filed by Dennis Cress (“Dennis”), Helen Cress (“Helen”) and Haley

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 Wilkerson (“Haley”) (collectively, “the Defendants”), contending that the trial

court erred in granting the motion. We reverse.

Facts and Procedural History
[2] The Riddles filed a complaint on October 20, 2018, alleging that the Defendants

had committed defamation and false reporting in the course of tendering to the

Department of Child Services (“DCS”) material designed to denigrate the

Riddles.

[3] Dennis and Helen received a summons and service of the complaint on

November 15, 2018, while Haley received the same on December 20, 2018.

None of the Defendants appeared or responded to the complaint, and on

January 25, 2019, the Riddles moved for a default judgment as to each of them

individually. The trial court granted their request on January 28, 2019.

[4] On February 21, 2019, the Defendants filed a motion for relief from judgment,

citing Indiana Trial Rule 60(B)(1). Following a hearing on the motion, the

court concluded that most of the Defendants’ arguments about excusable

neglect had been “debunked.” Appellants’ App. Vol. 2, p. 13. It nevertheless

granted the Defendants relief and set aside the default judgment. This appeal

followed.

Issue
[5] The sole issue on appeal is whether the trial court erred in determining the

Defendants had demonstrated they were entitled to relief.

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 Discussion and Decision
[6] Indiana Trial Rule 60(B) provides in pertinent part that a “court may relieve a

party . . . from a judgment, including a judgment by default for the following

reasons: (1) mistake, surprise, or excusable neglect[.]” Appellate review in the

area of default judgments is limited. “The decision whether or not to set aside a

default judgment is committed to the sound discretion of the trial court.” Siebert

Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983). An abuse of

discretion occurs when the judgment is clearly against the logic and effect of the

facts and inferences supporting the judgment, or it is “clearly erroneous.” Bello

v. Bello, 102 N.E.3d 891, 894 (Ind. Ct. App. 2018).

[7] “‘The trial court’s discretion is circumscribed and limited by the eight categories

listed in T.R. 60(B).’” Id. (quoting Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d

276, 278 (Ind. Ct. App. 2000), trans. denied). These are largely meant “to afford

relief from circumstances which could not have been discovered” during the

period a motion to correct error could have been filed. Snider v. Gaddis, 413

N.E.2d 322, 324 (Ind. Ct. App. 1980). “The burden is on the movant to

establish grounds for relief” under T.R. 60(B). Ind. Ins. Co., 734 N.E.2d at 279.

“‘[T]he trial court is required to balance the alleged injustice suffered by the

party moving for relief against the interests of the winning party and society in

general in the finality of litigation.’” Bello, 102 N.E.3d at 894 (quoting Indiana

Ins. Co., 734 N.E.2d at 278-79).

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[8] In so doing, “the trial court must consider the unique factual background of

each case because ‘no fixed rules or standards have been established as the

circumstances of no two cases are alike.’” Coslett v. Weddle Bros. Constr. Co. Inc.,

798 N.E.2d 859, 860-61 (Ind. 2003) (quoting Siebert, 446 N.E.2d at 340).

“Though the trial court should do what is ‘just’ in light of the facts of individual

cases, that discretion should be exercised in light of the disfavor in which

default judgments are held.” Id. at 861. “A trial court will not be found to have

abused its discretion ‘so long as there exists even slight evidence of excusable

neglect.’” Id. (quoting Sec. Bank & Trust Co. v. Citizens Nat. Bank of Linton, 533

N.E.2d 1245, 1247 (Ind. Ct. App. 1989), trans. denied).

[9] The defendants’ motion alleged the following:

5. That the Defendants neglected to file an Answer to said
Complaint in a timely fashion based upon the following:

a. Defendants, [Dennis] and [Helen] were involved in an
automobile accident in late October 2018. Helen [] sustained
injuries as a result of said accident. She was briefly hospitalized
and continued to treat with her physician.

b. That Defendants, [Dennis] and [Helen] are 75 years of age
and 66 years of age respectively and are [sic] were not aware that
an Answer to the Complaint was required to be filed. Through
the years both Defendants have received certified mail from the
Plaintiff, [Matt]. The correspondence was routinely sent by
certified mail by [Matt] and typically contained harassing and
defamatory assertions about the Defendants, individually, and
other family members. The Defendants were under the mistaken
belief the present lawsuit was nothing more than the latest of
communications from [Matt] which contained similar assertions.

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 c. The Defendants, Helen and [Dennis], were at or near this time
involved in concluding a Chapter 13 Bankruptcy proceeding.
The automobile accident as referenced above further complicated
matters as they were dealing with the Bankruptcy Trustee and
their insurance carrier related to monies to be received relative to
replacing their automobile. That the Defendants, Helen and
[Dennis], were engaged in these negotiations were without
transportation for a period of time and simply misunderstood
their respective obligation to answer the Complaint in a timely
fashion.

d. That the Defendants, Helen and [Dennis] were selected by the
Department of Child Services (“DCS”) as placement of the
Plaintiff’s two children Katie and Megan Riddle in the fall of
2016 when the children were removed from the home of the
Plaintiffs. The Defendants mistakenly believed that the
Complaint was related to the CHINS matter and therefore did
not require them to answer the Complaint directly.

e. That [Haley] was moving her primary residence from 9206
Huntleigh Circle, Plainfield, Indiana to 5629 Mills Rd.,
Indianapolis [sic] Indiana 46221 between November 3 to
December 27, 2018. That the Defendant lost track of the
Complaint in the move and inadvertently failed to answer the
Complaint in a timely fashion. Further, the Defendant, [Haley],
was injured on December 3, 2018. Her injury required her to
attend physical therapy and utilize crutches during her
convalescence. The Defendant, [Haley], was focused on her
recovery and not mindful that an answer to the Complaint was
time sensitive.

Appellants’ App. Vol. 2, pp. 23-25.

[10] The hearing testimony contradicts most of the assertions in the motion. Dennis

and Helen were involved in an accident, but it occurred in September 2018,

nearly two months before they were served with the complaint. Further, Helen
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 was treated at a hospital, but was not hospitalized for her injuries, which did

not include a concussion. Dennis and Helen each testified that despite the

mention of their ages in the motion, they were competent.

[11] Helen testified that she had received only one letter through certified mail from

Matt and that was the complaint and summons Dennis signed for on November

14 or 15, 2018. She also agreed that the chronological case summary for the

bankruptcy case showed that the case was closed on October 31, 2018, and that

the agreed entry was signed on November 2, 2018. The bankruptcy court order

indicating that the case was closed was dated November 5, 2018. Although she

and Dennis were represented by counsel in the bankruptcy proceedings, it did

not occur to her to have her attorney review the complaint. Registration for the

vehicle that was bought to replace the one that was totaled in the crash was

dated October 11, 2018. As for Helen, she testified that after Dennis signed for

the certified mail for the summons and complaint, she read but “briefly breezed

through it.” Id. at 38. She also stated that she was aware that an answer

needed to be filed within twenty days.

[12] Dennis testified that he signed for the certified mail for both of them, opened

and read the mail. He said he simply forgot about the letter because of prior

communication with Matt. Dennis testified that he has not spoken to Matt for

fifteen years and has had no call, no visits, and no mail from him. When asked

if he understood the consequences of ignoring a court document, he first stated

that he is now aware of the consequences. Upon further questioning, Dennis

stated that prior to his retirement from the police force, he was summonsed into

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 court approximately 5,000 times. He agreed that when those to whom he

issued a ticket failed to appear, there was the consequence of re-arrest.

[13] Regarding Haley’s defense, she testified that she received the complaint in

December and did not immediately open it because she claimed that Matt had

sent multiple certified letters to Helen and Dennis, her grandparents. Despite

claiming that she lost track of the complaint in the move, she stated that later in

December she read the complaint and was aware of the summons. Id. at 6. She

understood that she was required to respond within a certain timeframe. Id.

Haley did not contact a lawyer about the complaint because she believed Matt

was asserting a “bogus” claim. Tr. p. 6. She said that she turned her attention

to the complaint only after receiving a letter that the case was “defaulted,” and

she was ordered to appear. Id. at 7.

[14] In the motion for relief, Haley had claimed that she neglected to answer the

complaint because: (1) she was moving and lost track of it; (2) she was

changing residences; and (3) had to recover and rehabilitate from an injury,

which required her to use crutches. Haley testified, however, that even though

she was injured and used crutches, she was able to continue working two jobs

and found rides to and from work. At one of her jobs, she had access to a

computer with internet service. She stated that her injuries did not prevent her

from working and from moving her belongings. Further, Haley had never

received any mail from the Riddles in the past. She was aware the summons

and complaint were official court documents but failed to respond.

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[15] Rule 60(B) requires that a movant filing a motion under subsection 1 must also

allege a meritorious claim or defense. Matt testified that the underlying case

with DCS, which was based at least in part on Haley’s assertions, vindicated

him and that the case was dismissed and ordered expunged. Matt filed the

complaint against the defendants in an effort to clear his name and that of his

children.

[16] The trial court found that the defendants filed their motion less than 30 days

after the judgment was entered and that there were complications in their

personal lives such that they did not respond to the complaint. The court also

found as follows:

While Plaintiffs debunked most of the specific reasons Defendants set
forth, the Court was nonetheless left with the impression that
Defendants, unsophisticated and unrepresented by counsel, were
sincerely confused about their obligation to respond. Moreover,
the animosity between the parties was readily apparent during
the hearing. This animosity may have contributed to the
Defendants’ misunderstanding of their responsibilities with
regard to the Complaint and Summons.

Appellants’ App. Vol. 2, p. 13 (emphasis added).

[17] The court further found that Helen and Dennis testified that they made no

statement to the DCS prior to the removal of the children. The court observed

that Haley made a statement to the DCS, but her statement was based on

communication from another person. Therefore, the court concluded, there

was a sufficient showing of a meritorious defense that should be heard.

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 Further, the court found that the amount of damages, if any, would be a “hotly

contested issue” and that the court did not wish to determine damages when the

issue of liability was decided by default. Id.

[18] Based on our standard of review, we conclude that the trial court abused its

discretion in setting aside the default judgment. The court acknowledged that

most of the specific reasons set forth in the motion were “debunked,” but

concluded that the defendants were “sincerely confused about their obligation

to respond.” Id. Here, the record reflects that the defendants were aware of

their obligation to respond but chose not to do so, offering explanations in their

motion that were disproven at the hearing. As the Supreme Court said in

Smith, 711 N.E.2d at 1262, “This is neglect, but not excusable neglect as the

term appears in Rule 60(B)(1).”

Conclusion
[19] In light of the foregoing, we reverse and remand this matter to the trial court for

further action on the merits.

[20] Judgment reversed and remanded.

Pyle, J., concur.

Riley, J., dissents with opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

Dawn Riddle and Matthew Court of Appeals Case No.
Riddle, 19A-PL-1471

Appellants-Plaintiffs,

v.

Dennis Cress, Haley Wilkerson,
and Helen Cress,
Appellees-Defendants.

Riley, Judge dissenting

[21] I respectfully dissent from the majority’s opinion reversing the trial court’s

judgment setting aside the default judgment entered against Defendants because

the majority did not find there to be excusable neglect as required pursuant to

Indiana Trial Rule 60(B)(1).

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[22] As acknowledged by the majority’s opinion, when deciding whether or not a

default judgment may be set aside because of excusable neglect, the court must

consider the unique factual background of each case because no fixed rules or

standards have been established as the circumstances of no two cases are alike.

Coslett v. Weddle Bros. Contr. Co., 798 N.E.2d 859, 860-61 (Ind. 2003). Looking

at the particular circumstances before it, the trial court noted the complications

in Defendants’ personal lives, and touched upon its prerogative of determining

the credibility of witnesses by observing its impression that Defendants,

unsophisticated and unrepresented by counsel, were sincere in their confusion

about their obligations in these proceedings.

[23] On appeal, a trial court’s decision to set aside a default judgment is entitled to

deference and is reviewed for an abuse of discretion. Id. Any doubt of the

propriety of a default judgment should be resolved in favor of the defaulting

party. Id. As such, a trial court will not be found to have abused its discretion

so long as there exists even slight evidence of excusable neglect. Id. Cognizant

of the individualized circumstances and the parties’ testimony, I cannot

conclude that the trial court’s judgment, setting aside the default judgment, is

clearly against the logic and effect of the facts and inferences supporting its

judgment. See Bello v. Bello, 102 N.E.3d 891 (Ind. Ct. App. 2018).

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