Whitt v. Farmer's Mutual Relief Ass'n

815 N.E.2d 537, 2004 Ind. App. LEXIS 1905, 2004 WL 2189106
CourtIndiana Court of Appeals
DecidedSeptember 30, 2004
DocketNo. 57A03-0402-CV-73
StatusPublished
Cited by6 cases

This text of 815 N.E.2d 537 (Whitt v. Farmer's Mutual Relief Ass'n) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitt v. Farmer's Mutual Relief Ass'n, 815 N.E.2d 537, 2004 Ind. App. LEXIS 1905, 2004 WL 2189106 (Ind. Ct. App. 2004).

Opinion

OPINION

SHARPNACK, Judge.

Lee Whitt appeals the trial court's denial of his motion to set aside a default judgment granted to Farmer's Mutual Relief Association ("Farmer's Mutual"). Whitt raises one issue, which we restate as whether the trial court abused its discretion by denying Whitt's motion to set aside the default judgment where Farmer's Mutual had transferred title of the property to a third party after the judgment was entered and where the motion was filed almost one year after the judgment. We affirm.

The relevant facts follow. On August 21, 1998, Whitt entered into a real estate contract with Norma Haley. The contract required Whitt to pay $54,000 for the property payable in monthly installments of $700 and to maintain insurance on the property in an amount not less than $54,000. According to the contract, the insurance was to "be made payable to all the parties hereto as their interests may from time to time appear...." Appellant's Appendix at 10. Whitt obtained insurance through Farmer's Mutual.

On July 12, 2001, the property was destroyed by a fire. Whitt made a payment under the contract to Haley on July 21, 2001 and, thereafter, failed to make any payments. On January 4, 2002, Haley accepted $45,278.19 from Farmer's Mutual, executed a deed transferring the property to Farmer's Mutual, and assigned the contract to Farmer's Mutual.

On August 21, 2002, Farmer's Mutual filed a complaint to foreclose the real estate contract. Whitt was served with the complaint on September 13, 2002, and filed a pro se letter with the trial court on September 283, 2002. On October 9, 2002, Farmer's Mutual filed a motion for default judgment, and on October 11, 2002, Whitt [539]*539filed another pro se letter with the trial court asking for court-appointed counsel. After a hearing, the trial court denied Whitt's request for court-appointed counsel and granted Farmer's Mutual's motion for default judgment on December 10, 2002.1

On July 28, 2003, Farmer's Mutual deeded the property to the City of Kendalyville on July 28, 2003, and the City of Kendal-ville accepted the deed "in full satisfaction" of its pending complaint against Farmer's Mutual that sought to have the building repaired or demolished. Appellant's Appendix at 65A. Thereafter, the City of Kendalville demolished the building. On December 4, 2003, almost one year after the default judgment was entered, Whitt filed a motion to set aside the default judgment. Whitt alleged that the default was the result of excusable neglect because he was "wrongfully imprisoned and unable to respond to the complaint or retain an attorney because of his wrongful incarceration" 2 and that he had a meritorious defense to the complaint because the insurance coverage paid off the contract and Farmer's Mutual had no right to foreclose on the property after the contract had been paid in full. Id. at 47-48. Whitt also alleged that his first letter to the trial court should have been considered an answer to the complaint.

After a hearing, the trial court denied Whitt's motion to set aside the default judgment and noted, in part, that; (1) Whitt had failed to appeal the order granting default judgment; and (2) after the default judgment was entered, Farmer's Mutual conveyed the property to the City of Kendallville and the City of Kendallville demolished the fire damaged building. The trial court found that "(tlo now permit [Whitt] to set aside the default judgment would create extraordinary issues due to the real estate conveyance and demolition." Id. at 67.

The issue is whether the trial court abused its discretion by denying Whitt's motion to set aside the default judgment where Farmer's Mutual had transferred title of the property to a third party after the judgment was entered and where the motion was filed almost one year after the judgment. The decision of whether to set aside a default judgment is committed to the sound discretion of the trial court. Tardy v. Chumrley, 658 N.E.2d 959, 961 (Ind.Ct.App.1995), trans. denied. Our review is limited to determining whether the trial court has abused its discretion. Id. The trial court has abused its discretion where the judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id.

Ind. Trial Rule 55(C) provides that "[a] judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B)." Thus, "the proper procedure in the Indiana Rules of Trial Procedure for setting aside an entry of default or grant of default judgment thereon is to first file a Rule 60(B) motion to have the default or default judgment set aside." Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 337 (Ind.1983). Ind. Trial Rule 60(B) provides:

On motion and upon such terms as are just the court may relieve a party or his [540]*540legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:
(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;
(8) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;
"t * * "k * *
(6) the judgment is void;
(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (8), and (4).
The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (8), and (4). A movant filing a motion for reasons (1), (2), (8), (4), and (8) must allege a meritorious claim or defense....

On appeal, Whitt argues that his September 18, 2002 letter to the trial court should have been construed as an answer, and because he filed an answer, he was not required to show a meritorious defense to set aside the default judgment.3 Whitt does not specify the applicable subsection of Ind. Trial Rule 60(B) by which the trial court should have set aside the default judgment. However, assuming that Whitt argues the default judgment should have been set aside under Ind. Trial Rule 60(B)(1) for a "mistake" or under Ind.

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815 N.E.2d 537, 2004 Ind. App. LEXIS 1905, 2004 WL 2189106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitt-v-farmers-mutual-relief-assn-indctapp-2004.