dissenting.
I respectfully dissent. Under the circumstances presented here, it is apparent to me that the trial court abused its discretion in denying the State’s motion to set aside the default judgment that was entered in the Willits’ favor.
While the State did not enter its appearance with respect to the hearing on the Willits’ application for default judgment, it is my belief that the appearance of the Deputy Prosecutor of Hancock County in this case was sufficient to trigger the three-day notice requirement pursuant to T.R. 55(B). In my view, the Willits’ “Motion for Return of Property” was part of the criminal proceeding in which the deputy prosecutor had entered an appearance on behalf of the State. The Willits’ served the State with that motion, a notice of the hearing set for January 25, 1999, and a summons informing the State that it had been “sued” and that the nature of the “suit” was stated in the “complaint” attached to the summons. R. at 10,12. The summons went on to state that “You must answer the complaint in writing ... within twenty (20) days ... or judgment will be entered against you for what the plaintiff has demanded.” R. at 10, 12. Here, the “complaint” attached to the summons was the motion for the return of the Willits’ property. R. at 8, 9.
I would observe that the summons and motion for return of property do not satisfy the notice requirements of T.R. 55(B), in that such a motion is not a “complaint” and does not require a written responsive pleading. Even more compelling, such documents did not apprise the State of the Willits’ application for default judgment and did not notify it of the possibility that the Willits’ could be awarded damages in the event that a default judgment was entered. Rather, the motion only requested an order directing the return of the property and an award of attorney fees. R. at 9. Thus, it is apparent to me that the Willits’ notified the State only of the hearing on this motion. Inasmuch as the State was not provided with notice of the application for a default judgment, the judgment entered for the Willits’ should be declared voidable. See Evansville Garage Builders v. Shrode, 720 N.E.2d 1273, 1277 (Ind.Ct.App.1999) (notice of a “progress hearing” was not sufficient to satisfy the requirements of providing notice of an application for a default judgment).
Finally, I would note that the State was not required to establish a meritorious defense for the reason that the default judgment here should be set aside because it had been entered without notice. See id., 720 N.E.2d at n. 8; see also Standard Lumber Co. of St. John v. Josevski, 706 N.E.2d 1092, 1096 (Ind.Ct.App.1999). For these reasons, I would reverse the denial of the State’s motion to set aside the default judgment and remand this cause to the trial court for further proceedings.