MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 28 2018, 9:33 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Sammons Kristin A. Mulholland Rensselaer, Indiana Crown Point, Indiana
Michael P. Irk Zionsville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marina Cartage, Inc., et al. February 28, 2018 Appellants-Defendants, Court of Appeals Case No. 37A05-1709-PL-2146 v. Appeal from the Jasper Superior Court Cintas Corporation, The Honorable James R. Ahler, Appellee-Plaintiff Judge Trial Court Cause No. 37D01-1511-PL-928
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 1 of 7 [1] Cintas Corporation a/s/o Cintas (Cintas) filed a complaint for damages against
Harvey L. Windmon, Sr., and Windmon’s purported employers, MAT
Leasing, Marina Cartage, Inc., and Marina Waste, Inc. (collectively, the
Corporate Defendants). Windmon and the Corporate Defendants (collectively,
the Defendants) each failed to appear and were defaulted. They promptly filed
a joint motion to set aside the default judgment, alleging excusable neglect and
a meritorious defense. Following a hearing, the trial court denied the motion to
set aside. On appeal, the Defendants argue that the trial court abused its
discretion in this regard.
[2] We affirm.
Facts & Procedural History
[3] In December 2013, Cintas’s insured Joseph Frank was involved in a motor
vehicle accident on Interstate 65 in Jasper County. Cintas paid $28,954.63 on
Frank’s behalf as a result of the collision and then filed a subrogation claim
against each of the Defendants on November 16, 2015. Cintas alleged in the
complaint that during the course and scope of Windmon’s employment with
the Corporate Defendants, Windmon carelessly and negligently failed to
maintain control of his vehicle, crossed into Frank’s lane of travel, and struck
Frank’s vehicle.
[4] Cintas served Windmon with the summons and complaint by certified mail on
November 18, 2015, at the address in Markham, Illinois that Windmon
provided the investigating officer at the scene of the accident. Vonnie
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 2 of 7 Windmon accepted and signed for the certified mail at the residence that
afternoon.
[5] Similarly, Cintas served each of the Corporate Defendants, in care of their
registered agent, by certified mail on November 19, 2015. The Corporate
Defendants all had the same registered agent – Michael Tadin with an address
in Chicago, Illinois. Deborah Tadin accepted and signed for the certified
mailing at this address.
[6] On March 7, 2016, Cintas filed a motion for default judgment because each of
the Defendants had failed to appear in the matter. The trial court entered a
default judgment that same day in the amount of $28,954.63. Michael Tadin,
on behalf of the Corporate Defendants, received notice of the default judgment
shortly after it was issued.
[7] On April 4, 2016, the Defendants filed a Notice of Defendants’ Intent to File for
Relief Under Rule 60 and Motion for Stay of Execution. The trial court
granted a sixty-day stay on April 11, and the Defendants moved to set aside the
default judgment on June 6, 2016. In addition to alleging a meritorious defense
in the motion, the Defendants alleged that service upon the Corporate
Defendants “was received by somebody other than the registered agent and the
registered agent never received service or saw the summons or complaint.”
Appellants’ Appendix Vol. 2 at 17.
[8] The trial court held a hearing on the motion to set aside the default judgment
on November 3, 2016. The Defendants argued that their failure to appear was
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 3 of 7 due to excusable neglect. In support, they offered the affidavit of Michael
Tadin, which indicated that he is the registered agent for the Corporate
Defendants and that he never personally received notice of the complaint. The
Defendants did not dispute that service was sent to the proper address but
argued that “the complaint simply never got to Mr. Tadin”. Transcript at 6. No
evidence was presented regarding what Deborah Tadin did with the mailings
after she signed for them or how she was associated with the businesses.
Moreover, the Defendants did not even attempt to make a showing of excusable
neglect with respect to Windmon’s failure to appear.
[9] On June 14, 2017, the trial court issued its order denying the motion to set aside
the default judgment. The Defendants filed a motion to correct error, which the
trial court denied on August 18, 2017. The Defendants now appeal.
Additional information will be provided below as needed.
Discussion & Decision
[10] A trial court’s decision whether to set aside a default judgment is given
substantial deference on appeal. Shane v. Home Depot USA, Inc., 869 N.E.2d
1232, 1234 (Ind. Ct. App. 2007). “The trial court’s discretion is broad in these
cases because each case has a unique factual background.” Id. Thus, in
reviewing for an abuse of discretion, we will not reweigh the evidence or
substitute our judgment. Id. We observe, however, that default judgments are
not favored in Indiana, and “[a]ny doubt of the propriety of a default judgment
should be resolved in favor of the defaulted party.” Id.
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 4 of 7 [11] A default judgment may be set aside pursuant to Indiana Trial Rule 60(B)(1)
upon a finding of excusable neglect so long as the motion to set aside is entered
not more than one year after the judgment and the moving party also alleges a
meritorious claim or defense. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d
859, 860 (Ind. 2003). No clear standards exist for determining what constitutes
excusable neglect. Shane, 869 N.E.2d at 1234. Excusable neglect has been
found to include a breakdown in communication that results in a party’s failure
to appear. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).
[12] The burden was upon the Defendants to present facts constituting excusable
neglect.1 See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983).
They wholly failed to do so. Windmon’s affidavit offered no explanation as to
why he did not appear or inform his employer of the pending lawsuit. To
establish excusable neglect, the Corporate Defendants relied exclusively on the
affidavit of Michael Tadin, in which Tadin indicated that he had not personally
received notice of the lawsuit. Notably, the Corporate Defendants did not offer
the affidavit of Deborah Tadin or any evidence regarding what she did with the
certified mailings after accepting them.
[13] The bareness of the Defendants’ evidence was addressed in the following
colloquy between the trial court and defense counsel:
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 28 2018, 9:33 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Sammons Kristin A. Mulholland Rensselaer, Indiana Crown Point, Indiana
Michael P. Irk Zionsville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marina Cartage, Inc., et al. February 28, 2018 Appellants-Defendants, Court of Appeals Case No. 37A05-1709-PL-2146 v. Appeal from the Jasper Superior Court Cintas Corporation, The Honorable James R. Ahler, Appellee-Plaintiff Judge Trial Court Cause No. 37D01-1511-PL-928
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 1 of 7 [1] Cintas Corporation a/s/o Cintas (Cintas) filed a complaint for damages against
Harvey L. Windmon, Sr., and Windmon’s purported employers, MAT
Leasing, Marina Cartage, Inc., and Marina Waste, Inc. (collectively, the
Corporate Defendants). Windmon and the Corporate Defendants (collectively,
the Defendants) each failed to appear and were defaulted. They promptly filed
a joint motion to set aside the default judgment, alleging excusable neglect and
a meritorious defense. Following a hearing, the trial court denied the motion to
set aside. On appeal, the Defendants argue that the trial court abused its
discretion in this regard.
[2] We affirm.
Facts & Procedural History
[3] In December 2013, Cintas’s insured Joseph Frank was involved in a motor
vehicle accident on Interstate 65 in Jasper County. Cintas paid $28,954.63 on
Frank’s behalf as a result of the collision and then filed a subrogation claim
against each of the Defendants on November 16, 2015. Cintas alleged in the
complaint that during the course and scope of Windmon’s employment with
the Corporate Defendants, Windmon carelessly and negligently failed to
maintain control of his vehicle, crossed into Frank’s lane of travel, and struck
Frank’s vehicle.
[4] Cintas served Windmon with the summons and complaint by certified mail on
November 18, 2015, at the address in Markham, Illinois that Windmon
provided the investigating officer at the scene of the accident. Vonnie
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 2 of 7 Windmon accepted and signed for the certified mail at the residence that
afternoon.
[5] Similarly, Cintas served each of the Corporate Defendants, in care of their
registered agent, by certified mail on November 19, 2015. The Corporate
Defendants all had the same registered agent – Michael Tadin with an address
in Chicago, Illinois. Deborah Tadin accepted and signed for the certified
mailing at this address.
[6] On March 7, 2016, Cintas filed a motion for default judgment because each of
the Defendants had failed to appear in the matter. The trial court entered a
default judgment that same day in the amount of $28,954.63. Michael Tadin,
on behalf of the Corporate Defendants, received notice of the default judgment
shortly after it was issued.
[7] On April 4, 2016, the Defendants filed a Notice of Defendants’ Intent to File for
Relief Under Rule 60 and Motion for Stay of Execution. The trial court
granted a sixty-day stay on April 11, and the Defendants moved to set aside the
default judgment on June 6, 2016. In addition to alleging a meritorious defense
in the motion, the Defendants alleged that service upon the Corporate
Defendants “was received by somebody other than the registered agent and the
registered agent never received service or saw the summons or complaint.”
Appellants’ Appendix Vol. 2 at 17.
[8] The trial court held a hearing on the motion to set aside the default judgment
on November 3, 2016. The Defendants argued that their failure to appear was
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 3 of 7 due to excusable neglect. In support, they offered the affidavit of Michael
Tadin, which indicated that he is the registered agent for the Corporate
Defendants and that he never personally received notice of the complaint. The
Defendants did not dispute that service was sent to the proper address but
argued that “the complaint simply never got to Mr. Tadin”. Transcript at 6. No
evidence was presented regarding what Deborah Tadin did with the mailings
after she signed for them or how she was associated with the businesses.
Moreover, the Defendants did not even attempt to make a showing of excusable
neglect with respect to Windmon’s failure to appear.
[9] On June 14, 2017, the trial court issued its order denying the motion to set aside
the default judgment. The Defendants filed a motion to correct error, which the
trial court denied on August 18, 2017. The Defendants now appeal.
Additional information will be provided below as needed.
Discussion & Decision
[10] A trial court’s decision whether to set aside a default judgment is given
substantial deference on appeal. Shane v. Home Depot USA, Inc., 869 N.E.2d
1232, 1234 (Ind. Ct. App. 2007). “The trial court’s discretion is broad in these
cases because each case has a unique factual background.” Id. Thus, in
reviewing for an abuse of discretion, we will not reweigh the evidence or
substitute our judgment. Id. We observe, however, that default judgments are
not favored in Indiana, and “[a]ny doubt of the propriety of a default judgment
should be resolved in favor of the defaulted party.” Id.
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 4 of 7 [11] A default judgment may be set aside pursuant to Indiana Trial Rule 60(B)(1)
upon a finding of excusable neglect so long as the motion to set aside is entered
not more than one year after the judgment and the moving party also alleges a
meritorious claim or defense. Coslett v. Weddle Bros. Constr. Co., Inc., 798 N.E.2d
859, 860 (Ind. 2003). No clear standards exist for determining what constitutes
excusable neglect. Shane, 869 N.E.2d at 1234. Excusable neglect has been
found to include a breakdown in communication that results in a party’s failure
to appear. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).
[12] The burden was upon the Defendants to present facts constituting excusable
neglect.1 See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 340 (Ind. 1983).
They wholly failed to do so. Windmon’s affidavit offered no explanation as to
why he did not appear or inform his employer of the pending lawsuit. To
establish excusable neglect, the Corporate Defendants relied exclusively on the
affidavit of Michael Tadin, in which Tadin indicated that he had not personally
received notice of the lawsuit. Notably, the Corporate Defendants did not offer
the affidavit of Deborah Tadin or any evidence regarding what she did with the
certified mailings after accepting them.
[13] The bareness of the Defendants’ evidence was addressed in the following
colloquy between the trial court and defense counsel:
1 It is undisputed that the motion to set aside the default judgment was timely filed and that the Defendants alleged a meritorious defense.
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 5 of 7 [Court]: Is there any dispute that the person who signed for those was not a representative of the company or at least there’s – counsel’s making there’s been no such argument even made to the Court.
[Counsel]: I don’t have any information whether that person is an employee or associated with the company. Um, I don’t deny that they are because I simply do not have any information. Ah, we will presume from the last name on the thing that they are probably associated some, somewhere in the company.
[Court]: So – So again, again, walk me through the allegations though, they did, at least I have no evidence to the contrary, that some authoritative person on behalf of the company signed for it and then did what?
[Counsel]: We don’t know. All I know is that the registered agent did not receive the ah, notice of the complaint….
****
[Court]: So you gotta show excusable neglect before you even get to meritorious defense. Um, so the excusable neglect exactly is that they don’t know what happened?
[Counsel]: That’s all I – That’s all I can offer Judge, is they don’t know what happened um, from the time that the green card was signed for until they received the Default Judgment….
Transcript at 12-13.
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 6 of 7 [14] The facts presented by the Defendants were insufficient to require the trial court
to set aside the default judgment. See Smith, 711 N.E.2d at 1262. Indeed, there
are no facts establishing that the neglect in this case – by both Windmon and
the Corporate Defendants – was excusable. See id. (finding that the neglect was
not excusable and distinguishing other cases where “the defendants did all that
they were required to do but subsequent misunderstandings as to the
assignments given to agents of the defendants resulted in the failure to appear”).
[15] As our Supreme Court has observed, “[t]he judicial system simply cannot allow
its processes to be stymied by simple inattention.” Id. The trial court did not
abuse its discretion by refusing to find excusable neglect in this case.
[16] Judgment affirmed.
May, J. and Vaidik, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 37A05-1709-PL-2146 | February 28, 2018 Page 7 of 7