concurring.
While I agree with the majority that the defendants did not advance a meritorious defense and that there was no fraud on the part of plaintiff's new attorneys, I disagree with the majority's analysis regarding exeusable neglect. Nevertheless, I concur in the result that the majority reaches because I believe the dispositive issue in this case is that the defendants failed to present a meritorious defense. Because this issue is dis-positive, the majority's analysis of the exeusable neglect and fraud issues is unnecessary.
The majority correctly notes that a defendant seeking to set aside a default judgment must establish not only the existence of grounds for relief under T.R. 60(B), but also a meritorious defense to the judgment. Langdon v. Langdon (1994), Ind.App., 641 N.E.2d 673, 674. Here, the record reveals that Bennett and Day & Night failed to present evidence to the trial court establishing a defense on the merits of the case. Because Bennett and Day & Night failed to satisfy the second prong of the test for setting aside a default judgment, the majority was not obliged to reach the issues of whether there were grounds for relief under T.R. 60(B) for fraud or excusable neglect.
Notwithstanding the fact that it was unnecessary for the majority to address the issue of excusable neglect, they did so and I disagree with the majority's analysis. The evidence is uncontroverted that Goebel's letter containing his representation that the defendants need not appear and defend themselves was sent to and received by Bennett and Day & Night. Our supreme court has noted that under the Tenets of Professional Courtesy a lawyer should always act pursuant to the maxim "My word is my bond." Fire Ins. Exchange v. Bell by Bell (1994), Ind., 643 N.E.2d 310, 312. The reliability of lawyers' representations is an integral component of the fair and efficient administration of justice. Id. at 818. The law should promote lawyers' care in making statements that are accurate and trustworthy and should foster the reliance upon such statements by others. Id. Thus, it was reasonable for Bennett and Day & Night to rely on Goebel's representation and not defend themselves. Although I believe their neglect was excusable, the defendants failed to advance a meritorious defense and thus did not satisfy the second requirement for setting aside a default judgment. Accordingly, the trial court's denial of the defendant's motion was proper.
For the above-stated reasons, I concur in result on the issue concerning the defendant's failure to advance a meritorious defense.