concurring in part and dissenting in part.
I agree with the majority opinion that the judgment entered by the trial court was not a default judgment since plaintiff Dail presented evidence on both liability as well as damages as though defendant Whittaker were present. Pinkston v. Livingston (1990), Ind.App., 554 N.E.2d 1173; Aetna Securities Co. v. Sickels (1949), 120 Ind.App. 300, 88 N.E.2d 789. Accordingly, defendant Whittaker was not entitled to three days' notice as required for default judgments and the trial court did not err by not giving notice. I would nonetheless reverse the trial court's denial of Whittaker's motion for relief from judgment.
Ind.Trial Rule 60(B) dictates in pertinent part:
[Oln motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of ... final judgment ... for the following reasons: (1) mistake, surprise, or excusable neglect;.... The motion shall be filed . not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (8) and (4).
It is true in reviewing the denial of a T.R. 60(B) motion, we will reverse only if the trial court has abused its equitable discretion. Graham v. Schreifer (1984), Ind.App., 467 N.E.2d 800. Such an abuse will be found only if the trial court's judgment is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 802. However, in the case before us the trial court's judgment was clearly against the logic and effect of the facts and circumstances before it.
Within five days of the entry of judgment Whittaker filed his TR. 60(B) motion alleging excusable neglect, At a hearing on the motion, Whittaker introduced evidence demonstrating his failure to appear for trial was the result of a breakdown in communication.
Whittaker failed to appear at pre-trial conference which was held five days before trial. The trial court then telephoned Whit-taker and advised him the case would proceed to trial as scheduled. Under the impression that his homeowner's insurance might have provided coverage for his defense, Whittaker immediately contacted his insurance carrier. Whittaker testified that he believed the carrier would retain counsel on his behalf who would then enter an appearance.
Apparently Whittaker's insurance carrier did contact an attorney, however the attorney testified it was his impression the insurance carrier was hiring him to file a declaratory judgment action on the intentional torts exclusion provision of Whittaker's homeowner's policy. Only after judgment was entered against Whittaker did it become apparent that Whittaker's insurance carrier had intended to hire the attorney to represent him.
Clearly there was a misunderstanding between Whittaker's insurance carrier and the attorney who was hired to represent Whittaker. The record before us fails to reveal any evidence Whittaker in any way contributed to this misunderstanding.
The facts in this case are closely analogous to the facts in the case of Boles v. Weider (1983), Ind. 449 N.E.2d 288, which is cited by the majority. In that case the trial court initially entered default judgment against the defendant but reversed itself and set aside the judgment after hearing evidence of the breakdown in communication between defendant's insurance carrier and plaintiff's insurance carrier. Our fourth district reversed indicating that the breakdown in communication, without more, did not justify the trial court's finding of excusable neglect. Boles v. Weider (1982), Ind.App., 440 N.E.2d 720, 722. On petition to transfer, our supreme court de*828termined that the breakdown in communication between the insurance agent and insurance carrier resulted in neither of them hiring counsel to represent the defendant, and therefore the trial court did not abuse its discretion in finding defendant's failure to appear and defend the lawsuit excusable.
The majority recognizes Boles, supra, but distinguishes it from the case before us on the grounds that unlike Whittaker, the defendant in Boles had no actual knowledge that the case had been scheduled for trial. This distinction, in my opinion, had no bearing on our supreme court's ruling. The apparent determining factor of the Boles decision was the "breakdown in communication".
In the case before us there is ample evidence of a breakdown in communication between Whittaker's insurance carrier and the attorney ultimately hired to defend Whittaker. That breakdown in communication resulted in counsel not being present at trial to represent Whittaker. If the failure of the defendant in Boles to appear and defend the lawsuit is excusable, then under the circumstances the failure of defendant Whittaker to appear and defend his lawsuit is likewise excusable.
In reviewing the reinstatement of a cause of action our court has a long history of considering a number of factors including the substantial amount of money involved, the existence of a meritorious claim, the short length of time between the judgment and the request for relief, and the lack of prejudice to the defendant. Bross v. Mobile Home Estates, Inc. (1984), Ind. App., 466 N.E.2d 467; Fulton v. Van Slyke (1988), Ind.App., 447 N.E.2d 628; Carvey v. Indiana National Bank, (1978) 176 Ind.App. 152, 874 N.E.2d 1178; Green v. Karol (1976), 168 Ind.App. 467, 344 N.E.2d 106. All of these factors are present in the case before us. The amount of money involved in this case is substantial; Dail was awarded judgment of nearly three hundred thousand dollars ($300,-000.00). Whittaker apparently has a meritorious defense to plaintiff's claim; Dail asserted, among other things, that she suffered emotional distress and psychological damage because she was abducted by Whittaker, a virtual stranger; Whittaker produced evidence, including letters from Dail, which demonstrated the two were not strangers, but rather they were well acquainted. Only a five-day period elapsed between the judgment and the request for relief; and Dail has not shown any way in which she would be prejudiced by reinstatement.
Moreover, this court has demonstrated a strong preference for deciding cases on their merits. "[IJn our system of justice the opportunity to be heard is a litigant's most precious right and should be sparingly denied." Chrysler Corp. v. Reeves (1980), Ind.App., 404 N.E.2d 1147, 1153 quoting Edgar v. Slaughter, (8th Cir.1977) 548 F.2d 770, 772-78. Whittaker deserves an opportunity to be heard. I would therefore reverse and remand for trial.