Cember Wamsley, as Personal Representative of the Estate of Genia Wamsley v. Tree City Village, New Generation Mangement, Inc., and Matthew Joseph

FILED
Oct 11 2018, 1:29 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-CT-502
Cember Wamsley, as Personal Representative of the
Estate of Genia Wamsley,
Appellant (Plaintiff)
–v–
Tree City Village, New Generation Management, Inc.,
and Matthew Joseph,
Appellees (Defendants)
Argued: September 20, 2018 | Decided: October 11, 2018
Appeal from the Decatur Superior Court, No. 16D01-1609-CT-410
The Honorable Matthew D. Bailey, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 16A01-1706-CT-1355
Per Curiam Opinion
All Justices concur.
Per curiam.
Matthew Joseph accidentally discharged a firearm while cleaning it.
The bullet passed through the wall of his apartment unit and struck Genia
Wamsley, the occupant of the adjacent unit. Wamsley retained counsel,
who communicated for several months with the insurer of the apartment
complex and its management company (collectively “Landlords”). The
insurer denied the claim, and Wamsley filed suit against Landlords and
Joseph. The president of the management company wrote Wamsley’s
counsel, acknowledging receipt of the complaint and pointing out a
factual error therein. The president then placed the complaint in a file
cabinet and did nothing further. Neither Landlords nor Wamsley’s
counsel notified Landlords’ insurer of the complaint.
None of the defendants timely answered the complaint, and Wamsley
moved for and was granted an entry of default judgment. Landlords later
retained counsel and filed motions to set aside the default judgment
entered against them on grounds of excusable neglect. See Ind. Trial Rules
55(C), 60(B)(1). The trial court granted Landlords’ motions following a
hearing and later denied Wamsley’s motion to correct error. Wamsley
appealed, and the Court of Appeals reversed.1 We now grant transfer and
affirm the trial court.
An appellate court reviews a trial court’s decision to set aside a default
judgment for abuse of discretion, resolving any doubt as to the propriety
of default judgment in favor of the defaulted party. Coslett v. Weddle Bros.
Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003). The controlling question is
whether there exists “even slight evidence of excusable neglect.” Id.(quoting Security Bank & Trust Co. v. Citizens Nat’l Bank of Linton, 533
N.E.2d 1245, 1247 (Ind. Ct. App. 1989)).
Our deferential standard of review compels us to affirm the trial court.
There exists evidence of excusable neglect in this case – although that
1Joseph did not seek relief from the entry of default judgment against him and has not
participated in this appeal. Following a damages hearing the trial court entered judgment
against Joseph in the amount of $6,800,000. (Appellant’s App. Vol. 2 at 8; Appellant’s Br. at 7.)
Indiana Supreme Court | Case No. 18S-CT-502 | October 11, 2018 Page 2 of 3
evidence is indeed exceedingly slight – and Landlords have made the
requisite showing under Trial Rule 60(B)(1) of a meritorious defense.
Accordingly, we affirm the trial court’s orders setting aside the default
judgment against Landlords and denying Wamsley’s motion to correct
error, and we remand this case to the trial court for further proceedings
consistent with this opinion.
All Justices concur.
ATTORNEY FOR APPELLANT
Thomas A. Vick
Law Office of Thomas A. Vick
Greenwood, Indiana
ATTORNEYS FOR APPELLEES TREE CITY VILLAGE
AND NEW GENERATION MANAGEMENT, INC.
Lonnie D. Johnson
Belinda R. Johnson-Hurtado
Cheyenne N. Riker
Clendening Johnson & Bohrer, P.C.
Bloomington, Indiana
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