Genia Wamsley v. Tree City Village, New Generation Management, Inc., and Matthew Joseph

FILED
Feb 28 2018, 8:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Thomas A. Vick TREE CITY VILLAGE AND NEW
Law Office of Thomas A. Vick GENERATION MANAGEMENT
Greenwood, Indiana Lonnie D. Johnson
Belinda R. Johnson-Hurtado
Cheyenne N. Riker
Clendening Johnson & Bohrer,
P.C.
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Genia Wamsley, Februray 28, 2018
Appellant-Plaintiff, Court of Appeals Case No.
16A01-1706-CT-1355
v. Appeal from the Decatur Superior
Court
Tree City Village, New The Honorable Matthew D.
Generation Management, Inc., Bailey, Judge
and Matthew Joseph,1 Trial Court Cause No.
Appellees-Defendants. 16D01-1609-CT-410
Mathias, Judge.
1
Appellee-Defendant Matthew Joseph does not participate on appeal. However, pursuant to Indiana
Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.
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[1] Genia Wamsley (“Wamsley”) appeals the trial court’s order setting aside
default judgment entered against Tree City Village and New Generation
Management, Inc. (collectively “the Landlords”). Because we find that the trial
court abused its discretion when it found that the failure to respond to the
lawsuit by the Landlords was the result of excusable neglect, we reverse and
remand.
Facts and Procedural History
[2] On March 7, 2016, Matthew Joseph (“Joseph”) was cleaning his nine-
millimeter handgun in his Greensburg, Indiana apartment2 when it accidently
discharged. The bullet went through his wall and into the adjacent apartment
where it struck Wamsley in the side. Wamsley survived, but she suffered
significant injuries and medical expenses.
[3] On April 25, 2016, Wamsley’s counsel, Thomas Vick (“Vick”) sent a letter to
New Generation Management, Inc. notifying it of his representation of
Wamsley and that he was “preparing to litigate any and all claims available to
her.” Appellant’s App. p. 33. He also asked that New Generation Management,
Inc. place its insurer on notice of his representation.
2
Tree City Village is the name of the apartment complex and New Generation Management, Inc. manages
the property.
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[4] A couple weeks later, Vick received a letter from The Cincinnati Insurance
Companies’ (the “Insurer”)3 Senior Claims Specialist Lori Dixon (“Dixon”)
acknowledging Vick’s representation of Wamsley and requesting certain
information and documents pertaining to the incident. Between May 17 and
July 28, Dixon and Vick communicated frequently over e-mail regarding
Wamsley’s claim, but Dixon denied Wamsley’s claim. Importantly, Dixon did
not request that Vick copy her with any complaint filed regarding the claim.
[5] On September 13, 2016, Wamsley filed a complaint for damages against Joseph
and the Landlords. The complaint alleged negligence and nuisance against the
defendants and that the Landlords had breached a duty of care by not acting
reasonably to protect Wamsley’s safety. The Landlords received service of the
complaint the week it was filed. On September 15, Dixon emailed Vick
notifying him that the Insurer denied Wamsley’s claim. And on September 19,
New Generation Management, Inc. president Tamera L. Brandt (“Brandt”)
sent Vick a letter in which she confirmed that she had received the summons
and complaint, and that the complaint mistakenly stated that New Generation
Management, Inc. owned Tree City Village. Vick did not respond to Brandt’s
letter, and Brandt placed the summons and complaint in a file cabinet for
storage. Appellant’s App. p. 50.
3
The Cincinnati Insurance Companies is the insurance agency for both Tree City Village and New
Generation Management, Inc. Appellees’ App. p. 7.
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[6] Because the Landlords did not respond to the complaint, Wamsley filed for
default judgment on October 25. On November 10, the trial court entered
default judgment against the Landlords and scheduled a damages hearing. Prior
to the hearing, on February 15, 2017, Landlords filed motions to set aside the
default judgment alleging that the failure to respond was due to excusable
neglect and that they had a meritorious defense to the allegations.
[7] On March 31, the trial court held a hearing on the motions to set aside default
judgment. At the hearing, counsel for the Landlords argued that the Insurer was
not aware of the complaint because Vick never provided the Insurer with a
copy. Counsel further contended that the failure to respond constituted
excusable neglect because Brandt did all she thought was required of her when
she received the complaint. Vick responded,
Now, the idea of somebody looking at a complaint, seeing the
summons, seeing that their company, of which they are
president, is named in the complaint, responding to the
complaint by a letter to opposing counsel and then not doing
anything to follow up on that, I don’t think that that’s excusable
neglect. I see that as willful ignorance.
Tr. p. 23.
[8] On April 10, the trial court granted the Landlords’ motions in two one-sentence
orders. Wamsley filed a motion to correct error on May 5, and the trial court
denied it on May 31. Wamsley now appeals.
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Discussion and Decision
[9] Wamsley argues that the trial court abused its discretion when it granted
Landlords’ motions to set aside default judgment. Because Indiana law strongly
prefers disposition of cases on the merits, default judgments are generally
disfavored, and the trial court’s discretion in granting a default judgment should
be exercised in light of this disfavor. Coslett v. Weddle Bros. Const. Co., 798
N.E.2d 859, 861 (Ind. 2003). On appeal, we review the trial court’s decision for
an abuse of discretion. Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 547 (Ind.
2001). An abuse of discretion occurs when the trial court’s denial is clearly
against the logic and effect of the facts and inferences supporting the order.
Whitt v. Farmer’s Mutual Relief Ass’n, 815 N.E.2d 537, 539 (Ind. Ct. App. 2004).
[10] Indiana Trial Rule 55(C) explains 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).” Indiana Trial Rule 60(B) provides in relevant
part, “On motion and upon such terms as are just the court may relieve a party
or his legal representative from a judgment, including a judgment by default, for
. . . (1) mistake, surprise, or excusable neglect[.]”4
4
We acknowledge that when a party moves to set aside default judgment under Trial Rule 60(B)(1), it must
also allege a meritorious claim or defense. T.R. 60(B). However, because we find that the trial court abused
its discretion when it implicitly found excusable neglect, we decline to address the parties meritorious claim
arguments. Landlords did not contend that the default judgment should be set aside for any other grounds
under Trial Rule 60(B).
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[11] Providing the trial court with the deference it is due, “[a] Trial Rule
60(B)(1) motion does not attack the substantive, legal merits of a judgment, but
rather addresses the procedural, equitable grounds justifying the relief from the
finality of a judgment.” Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1254 (Ind.
Ct. App. 1999) (citation omitted), trans denied. Because “[t]here is no general
rule as to what constitutes excusable neglect under Trial Rule 60(B)(1),” “[e]ach
case must be determined on its particular facts.” Id. (citation omitted). The
burden is on the Landlords “to affirmatively demonstrate that relief is necessary
and just.” Id. (citation omitted).
[12] Landlords claim that the evidence presented to the trial court was sufficient to
demonstrate excusable neglect5 because: (1) “Wamsley failed to notify the
insurer of the existence of the Complaint[;]” and (2) Landlords believed they
“had done all that was required of them by allowing the insurer [to] handle the
claim.” Appellees’ Surreply Br. at 13. We address each contention in turn.
A. Wamsley’s Failure to Notify Landlords’ Insurer
[13] Landlords cite to two cases from our supreme court and one case from our
court in support of its argument that Vick’s failure to forward the complaint to
the Insurer heavily factors into the Landlords’ alleged excusable neglect in
5
Although the trial court did not make a specific finding of excusable neglect, this was the only basis argued
by Landlords in support of their Trial Rule 60(B) motions. Therefore, we presume that because the trial court
granted the motion, it necessarily concluded that Landlords’ failure to respond to the Wamsley’s complaint
was the result of excusable neglect.
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failing to appear. In Boles v. Weidner, 449 N.E.2d 288 (Ind. 1983), Boles was
involved in an automobile accident with Weidner. Id. at 289. Prior to Boles
filing suit, Weidner and his insurer were notified that Boles was represented by
counsel, and correspondence between Boles’s counsel and the insurer took
place. Boles filed suit against both Weidner and his employer, and when neither
party responded, Boles filed for default judgment which the trial court granted.
Months later, Weidner and his employer entered an appearance and filed for
relief from judgment. Weidner claimed that he had provided his insurance
agent with the complaint and that the agent was supposed to notify the
insurance carrier. The trial court granted Weidner’s motion, and Boles
appealed.
[14] When it granted the motion to set aside default judgment, “the trial court found
that the failure of the plaintiff’s counsel . . . to exercise the common courtesy of
notification to the insurance carrier of the lawsuit’s existence constituted
conduct prejudicial to the entry of a default judgment and was a factor which
contributed to the entry of default.” Id. at 290. However, our supreme court
recognized that Boles’s counsel was under no obligation to notify the insurer of
a lawsuit and explained that “counsel’s failure to notify the carrier of the entry
of a lawsuit would not, standing alone, justify the trial court in setting aside the
default judgment.” Id. Thus, although it was a valid factor in a trial court’s
decision to set aside default judgment, the question before the court was
“whether the defendants’ negligence in appearing in the lawsuit was excusable
under all the facts and circumstances.” Id.
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[15] Our supreme court affirmed the judgment of the trial court for several reasons
including: (1) Weidner immediately gave the complaint to his insurance agent
to forward it to the insurance agency handling the claim; (2) there was a
breakdown in communication between the insurance agency and the insurance
carrier; and (3) a claims representative for the insurance carrier attempted,
without success, on at least ten occasions to obtain Boles’s medical records
from his attorney. Id. at 290–91.
[16] In McGee v. Reynolds, 618 N.E.2d 40 (Ind. Ct. App. 1993), McGee was involved
in an automobile accident with Reynolds. McGee’s attorney had several
conversations with Reynolds’s insurer regarding a settlement; however, the
negotiations reached an impasse. McGee’s attorney failed to properly serve
Reynolds due to an incorrect address, and never responded to Reynolds’s
insurer’s letter inquiring as to the status of the claim. McGee filed, and the trial
court granted, a motion for default judgment. Seven months later, Reynolds
received notice and moved to set the default judgment aside, which the trial
court granted. McGee appealed.
[17] A panel of this court affirmed the trial court’s decision to set aside the default
judgment and explained that the “failure to answer a direct inquiry from an
insurer concerning his client’s claim when coupled with the failure to provide
the insurer with notice of a pending law suit smack of chicanery and unfair
advantage.” Id. at 41. However, the court clarified that the failure of McGee’s
attorney to give notice of the lawsuit to Reynolds’s insurer alone would have
been insufficient to set aside default judgment. Id.Court of Appeals of Indiana | Opinion 16A01-1706-CT-1355 | February 28, 2018 Page 8 of 17
[18] And in Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999), Johnston filed a
complaint with the Indiana Department of Insurance against Dr. Smith and
Smith Surgical group for medical malpractice. Id. at 1261. After the medical
review panel found that Smith had failed to comply with appropriate standards
of care, Johnston filed suit against Dr. Smith and Smith Surgical Group. A
scrub nurse signed for the summonses and placed the documents on Dr. Smith’s
desk.6 No response was filed, so Johnston filed for default judgment which the
trial court granted. Smith then moved to set aside default judgment, in part, for
excusable neglect based on a breakdown in communication. The trial court
denied Smith’s motion, and he appealed.
[19] On appeal, our supreme court affirmed the trial court stating, “This is neglect,
but not excusable neglect as the term appears in Rule 60(B)(1).” Id. at 1262. The
Smith court then distinguished the case from other previous decisions where
excusable neglect was found and explained, “Here, Smith knew his mail was
unattended and accepted the risk of adverse consequences. The judicial system
cannot allow its processes to be stymied by simple inattention.” Id.
[20] The case before us is more analogous to Smith, and distinguishable from both
Boles and McGee. Unlike in Boles, here, the Landlords never sent the complaint
to their Insurer. And unlike the attorney in McGee, Vick properly served the
6
The office manager, who usually handled all legal matters, was in the process of leaving Smith Surgical
Group due to financial difficulties and was not in the office at the time the lawsuit was filed. Dr. Smith
apparently did not see the summonses until after default judgment was entered.
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Landlords, and he never actively ignored inquires made by the Landlord or the
Insurer. Rather, similar to the situation in Smith, the Landlords failed to take
any action with regard to the complaint, except for notifying Vick of an
immaterial defect. However, unlike the circumstances in Smith, here the
Landlords personally received the complaint and summons, acknowledged
receiving it, and then New Generation Management, Inc.’s president placed it
in a file cabinet for storage.
[21] We recognize that Vick did not send a courtesy copy of the complaint to the
Insurer. However, Landlords’ counsel acknowledged at the hearing on the
motion to set aside default judgment that “[a] courtesy phone call may have
been unnecessary. A courtesy copy of the complaint to [the Insurer] may have
been unnecessary.” Tr. p. 20. And even if Vick erred by failing to send a
courtesy copy of the complaint to the Insurer, our supreme court made it clear
in Boles that “counsel’s failure to notify the carrier of the entry of a lawsuit
would not, standing alone, justify the trial court in setting aside the default
judgment.” 449 N.E.2d at 290.
B. Landlords’ Assertion that they had Done all that was Required
[22] Landlords acknowledge that Vick’s failure to notify the Insurer alone is
insufficient to support setting aside default judgment. However, they contend
that the failure to notify coupled with the Landlords’ belief that they had done
all they needed to do with regard to the claim was sufficient to support the trial
court’s order. Landlords cite to two cases from our supreme court and one case
from this court to support their argument.
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[23] In Whittaker v. Dail, 584 N.E.2d 1084 (Ind. 1992), Dail sued Whittaker for
injuries sustained during an alleged battery, and Whittaker failed to attend the
bench trial. Id. at 1084–85. After hearing testimony from Dail and her
witnesses, the trial court entered judgment against Whittaker. Four days after
trial, attorneys for Whitaker entered an appearance and moved to set aside the
default judgment.
[24] Explaining his failure to appear, Whittaker testified that after he received notice
of the pre-trial conference, he called his insurer and had an understanding that
it would provide an attorney for him. A claims adjuster testified that she spoke
with Whittaker and then attempted to employ a law firm to represent him. An
attorney for the firm then testified and stated that he met with the claims
adjuster, but it was his misunderstanding that he was to be employed to file a
declaratory judgment against Whittaker, not to defend him. The trial court
denied the motion to set aside default judgment, and Whittaker appealed.
[25] Our supreme court determined that the trial court abused its discretion when it
failed to set aside default judgment because it was clear that a “‘breakdown in
communication’ occurred giving rise to Whittaker’s legitimately-held belief that
his insurance carrier would hire a lawyer to represent him.” Id. at 1087. The
Whittaker court analogized the case to Boles and went on to explain, “we further
recognize that Boles does not stand for the proposition that every breakdown in
communication requires that a judgment be set aside.” Id. The primary factors
for the Whittaker court were that: (1) there was unchallenged credible testimony
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of a breakdown in communication, and (2) there was no evidence of any “foot
dragging” by Whittaker. Id.
[26] In Flying J, Inc. v. Jeter, 720 N.E.2d 1247 (Ind. Ct. App. 1999), Jeter was injured
when she slipped and fell in a Flying J convenience store. Id. at 1248. She filed
a complaint against Flying J, and, after Flying J failed to respond, Jeter filed
for, and the trial court granted, default judgment. Flying J filed a motion to set
aside the judgment asserting that a breakdown in communication had occurred,
and the breakdown constituted excusable neglect. Flying J explained that one of
its employees had instructed Flying J’s insurance adjuster to retain a law firm
when the suit was filed. The adjuster assumed that Flying J would inform him
when it was served, and thus he never retained the law firm. Flying J thought it
had confirmed that the adjuster would retain counsel immediately. The trial
court denied the motion to set aside default judgment, and Flying J appealed.
[27] A panel of this court reversed the trial court’s decision and explained, “Flying J
contacted its insurance adjuster . . . and instructed him to hire a particular law
firm to defend Jeter’s negligence suit. Flying J reasonably believed it had taken
the appropriate measures to hire an attorney.” Id. at 1249. The court analogized
the breakdown in communication to that in Whittaker and noted, “the failure on
the part of Flying J to file an answer was not the result of its ‘foot dragging’ and
instead due to its misunderstanding with [the adjuster].” Id. at 1250.
[28] And in Coslett v. Weddle Brothers Construction Company, Coslett’s Furniture filed
suit against Weddle Brothers for negligent delay in constructing a bridge. 798
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N.E.2d at 860. When Weddle Brothers received the complaint, it sent a copy to
its insurance agent. However, Weddle Brothers never responded to the
complaint, and the trial court entered default judgment. A claims manager for
the insurance company wrote to Weddle Brothers roughly six weeks later
advising it that Coslett’s Furniture’s claims were not covered under the policy.
After receiving this letter, Weddle Brothers immediately retained counsel and
moved to set aside the default judgment. The trial court set aside the default
judgment, but a panel of this court reversed, and our supreme court granted
transfer.
[29] Our supreme court affirmed the trial court’s ruling and relied in large part on
the language the trial court used in its order. The trial court in Coslett stated,
“One can easily argue that Weddle Brothers did respond to this lawsuit in a
reasonable manner. It argues that it handled the complaints the way it always
does, by notifying its insurance company.” Id. at 862. The Coslett court
determined that the trial court’s ruling was supported by evidence of excusable
neglect and deferred to its decision.
[30] Landlords cite to Whittaker, Flying J, and Coslett to support its claim that “there
was an obvious breakdown between Landlords and their insurer” and that
“Landlords believed they had done all they needed to do with the Complaint,
since they informed Wamsley’s counsel of the perceived defects in the claim,
had already forwarded Wamsley’s claim to their insurer, and since Wamsley[’s]
counsel had already been in contact with Landlords’ insurer . . . .” Appellees’
Br. at 22. Based on the facts and circumstances before us, we disagree.
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[31] This was not an example of a breakdown in communication, but rather a
complete lack of communication. Landlords’ counsel at the hearing to set aside
default judgment acknowledged, “Whether the defendant should have told her
insurer after she got a copy of the complaint, clearly, she should have.” Tr. p.
21. In Whittaker, Flying J, and Coslett, each defendant contacted their insurance
agency about the suit, and in each case the breakdown in communication
occurred after the insurers had been notified. Here, the Landlords never sent a
copy of the complaint or summons to the Insurer, and there is no evidence that
the Landlords ever had had any discussions about the suit with the Insurer prior
to the trial court’s entry of default judgment.
[32] The Landlords’ contention that they believed they had done all they needed to
do with the complaint is not persuasive. First, as stated above, Landlords never
forwarded the complaint to the Insurer or discussed it with them. Cf. Boles, 449
N.E.2d at 289, Whittaker, 584 N.E.2d at 1086, Coslett, 798 N.E.2d at 860; Flying
J, Inc., 720 N.E.2d at 1248, Shane v. Home Depot USA, Inc., 869 N.E.2d 1232,
1236 (Ind. Ct. App. 2007). Second, after receiving the complaint, New
Generation Management, Inc.’s president placed the complaint in a filing
cabinet for storage. And third, the Landlords are not defendants that are
unaccustomed to receiving complaints or dealing with lawsuits. Wamsley
introduced evidence that the Landlords were regularly involved in small claims
and civil collections cases. See Appellant’s App. pp. 72–75.
[33] Even if we accept the Landlords’ contention that they are not “sophisticated
litigants,” we certainly cannot say that the Landlords are “sympathetic
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defendant[s]” as envisioned by the Smith court, and we reiterate its holding that
“[t]he judicial system simply cannot allow its processes to be stymied by simple
inattention.” 711 N.E.2d at 1262; see also Huntington Nat. Bank v. Car-X Assoc.
Corp., 39 N.E.3d 652, 658 (Ind. 2015) (holding that a bank familiar with
foreclosure actions that fails to respond to a complaint and summons because of
an employee’s disregard for the mail cannot successfully allege excusable
neglect). Wamsley notes, “Landlords manage an apartment complex. To be
entrusted with such management of real property indicates a level of
sophistication.” Reply Br. at 27. We agree. While Landlords’ status as a litigant
may not rise to the level of “savvy” and “sophisticated” as the bank described
by our supreme court in Huntington National Bank, 39 N.E.3d at 658, they are
certainly experienced with litigation and the judicial procedural process through
eviction proceedings, if nothing else.
[34] Simply put, it would be inaccurate to conclude, as our supreme court stated in
Boles and implied in Whittaker, that Landlords “had done everything that
apparently needed to be done” upon receipt of notice to secure representation
and answer the complaint. Boles, 449 N.E.2d at 291. Vick stated in part during
the hearing on the motion to set aside default judgment:
Now, the idea of somebody looking at a complaint, seeing the
summons, seeing that their company, of which they are
president, is named in the complaint, responding to the
complaint by a letter to opposing counsel and then not doing
anything to follow up on that, I don’t think that that’s excusable
neglect.
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Tr. p. 23. We agree. Here, the Insurer was on notice that Wamsley would
pursue and litigate all legal claims available. Appellant’s App. p. 63. And the
Landlords were properly served with a complaint and summons and never
consulted with the Insurer. Vick’s failure to send a courtesy copy of the
complaint to the Insurer is insufficient on its own to set aside default judgment.
See, e.g., Boles, 449 N.E.2d at 290. Landlords explain that they “never forwarded
the Complaint to the insurer because they were unaware that the insurer was no
longer being kept informed by counsel for Wamsley.” Appellees’ Br. at 27.
While this may very well be true, it demonstrates a striking lack of attention by
Landlords. Although Vick was doing his job by communicating with the
Insurer about his client’s claim, he had no duty to notify the Insurer of the
lawsuit. See, e.g., Boles, 449 N.E.2d at 290. Rather, Landlords’ “untimely
response to service is wholly attributed to the defaulted part[ies’]
inattentiveness,” and “[t]here was no true breakdown in communication
between agents of the party that caused the part[ies’] failure to appear.”
Huntington Nat. Bank, 39 N.E.3d at 657.
[35] Therefore, while we are aware of the high level of deference accorded to trial
courts in these decisions and the preference in Indiana for resolving cases on the
merits, the Landlords’ inattention to the complaint and summons and their
failure to consult with or discuss the suit with the Insurer may constitute
neglect, but it does not constitute excusable neglect under Indiana Trial Rule
60(B)(1). See Smith, 711 N.E.2d at 1262; Huntington Nat. Bank, 39 N.E.3d at
658.
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Conclusion
[36] Based on the facts and circumstances before us, the trial court’s decision to set
aside Wamsley’s default judgment against the Landlords for excusable neglect
was an abuse of discretion. Accordingly, we reverse and remand to the trial
court with direction to reinstate default judgment against Landlords and in
favor of Wamsley.
Najam, J., and Barnes, J., concur.
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