ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES
JOSEPH LEON PAYNE Attorney for Herb R. Ault and
Austin, Indiana Dianna L. Mikels
STEVEN K. ROBISON
COURT OF APPEALS OF INDIANA
HAROLD MASON d/b/a H & M ROOFING )
and CONSTRUCTION, )
vs. ) No. 36A01-0012-CV-406
HERB R. AULT and DIANNA L. MIKELS )
and STATE BANK OF MEDORA, )
APPEAL FROM THE JACKSON SUPERIOR COURT
The Honorable Frank W. Guthrie, Judge
Cause No. 36D01-0004-CP-51
June 25, 2001
OPINION – FOR PUBLICATION
Harold Mason d/b/a H&M Roofing and Construction (“Mason”) obtained a
default judgment against Herb R. Ault (“Ault”) and Dianna L. Mikels
(“Mikels”). The trial court granted Ault and Mikels’ Motion for Relief
from Judgment, and Mason appeals. He raises one issue, which we restate as
whether the trial court erred in setting aside the default judgment.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
Ault and Mason entered into a contract whereby Mason was to perform
certain construction work on Ault’s residence. Disputes arose, and Mason
filed a contractor’s lien on the remaining balance of the contract. When
the contractor’s lien was not satisfied, Mason filed a complaint to
foreclose the contractor’s lien. Service of process by Sheriff was
obtained on Ault and Mikels. When they did not appear, Mason moved for a
default judgment, which was granted on June 26, 2000. Ault and Mikels
filed their motion for relief from the default judgment on July 11, 2000.
After a hearing, the trial court set aside the default judgment. This
DISCUSSION AND DECISION
After a default judgment is entered, the defaulting party may seek to
have it set aside through the procedures of Ind. Trial Rule 60(B). That
rule provides in pertinent part that "[o]n motion and upon such terms as
are just the court may relieve a party or his legal representative from an
entry of default, final order, or final judgment, including a judgment by
default, for . . . mistake, surprise, or excusable neglect.” T.R.
The decision whether to set aside a default judgment is given
substantial deference on appeal. Bonaventura v. Leach, 670 N.E.2d 123, 125
(Ind. Ct. App. 1996). Our standard of review is limited to determining
whether the trial court abused its discretion. Bennett v. Andry, 647
N.E.2d 28, 31 (Ind. Ct. App. 1995). An abuse of discretion may occur if
the trial court's decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the court has
misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175,
180 (Ind. 1993). We may affirm a general default judgment on any theory
supported by the evidence adduced at trial. Breeden v. Breeden, 678 N.E.2d
423, 425 (Ind. Ct. App. 1997).
The trial court's discretion is necessarily broad in this area because
any determination of excusable neglect, surprise, or mistake must turn upon
the unique factual background of each case. Siebert Oxidermo, Inc. v.
Shields, 446 N.E.2d 332, 340 (Ind. 1983). Moreover, no fixed rules or
standards have been established because the circumstances of no two cases
are alike. Id. A cautious approach to the grant of motions for default
judgment is warranted in "cases involving material issues of fact,
substantial amounts of money, or weighty policy determinations." Green v.
Karol, 168 Ind. App. 467, 473-74, 344 N.E.2d 106, 110-11 (1976). In
addition, the trial court must balance the need for an efficient judicial
system with the judicial preference for deciding disputes on the merits.
Teegardin v. Maver's, Inc., 622 N.E.2d 530, 533 (Ind. Ct. App. 1993).
In reviewing the decision of the trial court, we will not reweigh the
evidence or substitute our judgment for that of the trial court.
Professional Laminate & Millwork, Inc. v. B & R Enterprises, 651 N.E.2d
1153, 1157 (Ind. Ct. App. 1995). Upon a motion for relief from a default
judgment, the burden is on the movant to show sufficient grounds for relief
under Ind. Trial Rule 60(B). Jostens Learning Corp. v. Education Sys.
Corp. of Indiana, 651 N.E.2d 1186, 1188 (Ind. Ct. App. 1995).
In their motion for relief, Ault and Mikels asserted that they had
sought the advice of a lawyer upon receipt of the contractor’s lien and had
been informed that Mason “had one year within which to bring suit on the
claim against [Ault and Mikels]; and, that if [Mason] did so, [Ault and
Mikels] would receive paperwork from the Court setting a definite date by
which they were to respond to [Mason’s] claims.” (R. at 43.) Upon receipt
of the foreclosure complaint and summons, Ault and Mikels reviewed them to
find a definite date. When they did not find a specific date, “they
assumed that additional paperwork would be sent by the Court setting such a
definite date for them to respond to [Mason’s] claim.” Id.
Although the trial court’s Order setting aside the default judgment
did not specify the basis for the judgment, the court presumably found
either excusable neglect or mistake. Excusable neglect has often been
found where there has been a “breakdown in communications.” In Flying J,
Inc. v. Jeter, 720 N.E.2d 1247 (Ind. Ct. App. 1999), Flying J contacted its
insurance adjuster and instructed the adjuster to hire a specific law firm
to defend Jeter’s negligence suit. The adjuster misunderstood, believing
that Flying J was to notify him when it received the complaint. We found
Flying J’s neglect excusable because “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.
A breakdown in communication between an insurance company and its
client resulting in the client not hiring an attorney was found in
Whittaker v. Dail, 584 N.E.2d 1084, 1087 (Ind. 1992) to be excusable
neglect. In Whittaker, the client was under the impression that the
insurance company would hire an attorney for him, and the adjuster thought
she had hired an attorney for the client. However, the lawyer who had been
hired mistakenly believed he was to file a declaratory judgment action
against the client rather than defend the client. There, as in Flying J,
the court reasoned there was no evidence of “foot dragging” on the part of
the client. Id.
In Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999), our supreme
court found a breakdown in communications not to be excusable neglect. In
Smith, a doctor failed to open his mail and did not discover that a medical
malpractice suit had been filed against him and his medical practice group.
The person normally responsible for opening the mail was away from the
office when the summons arrived. A scrub nurse unfamiliar with the mail
delivery process signed for the summons and put the certified mail envelope
on the doctor’s desk. He did not open the letter until after a default
judgment had been entered.
The court found this breakdown in communication to be “neglect, but
not excusable neglect,” distinguishing it from other cases which found
breakdowns in communication “excusable.” Id. The court stated that in the
other cases, “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 a failure to appear.” Id.
The breakdown in communications in the case before us was not
“excusable” because Ault and Mikels did not do all that they were required
to do. After they received the summons and complaint, they did not contact
a lawyer or otherwise make any arrangements with respect to their defense.
This case is not one of excusable neglect.
Nor do we find any mistake that would permit setting aside the default
judgment. This court in Moe v. Koe, 165 Ind. App. 98, 330 N.E. 761 (1975),
recognized that “[a]s long ago as 1883 it has been the law in Indiana that
mere mistakes of law do not authorize the vacation of a judgment.” Id. at
102, 330 N.E.2d at 764. In the cases relied on by the Moe court, the
defendant was advised by the defendant’s attorney, the sheriff, or another
third party that it was not necessary for the defendant to appear at trial
or on the return date of the summons. Each held the defendant was not
relieved of his responsibility in failing to appear.
Typical of the refusal of Indiana courts to find mistaken reliance on
the advice of an attorney or third party to be excusable conduct is Carty
v. Toro, 223 Ind. 1, 7, 57 N.E.2d 434, 436 (1944):
But appellant may not put all the blame on the attorney. A person of
mature years and judgment, and this we will assume of appellant in the
absence of any evidence to the contrary, may not idly ignore a summons
to defend an action. His responsibility is independent of that of the
attorney by whom he is advised.
More recently, in G.H. Skala Const. Co. v. NPW, Inc., 704 N.E.2d
1044, 1050 (Ind. Ct. App. 1998), Skala Construction claimed that its
reliance on the representations of an unlicensed attorney that the attorney
was settling the case constituted mistake, surprise, or excusable neglect.
Quoting Moe, 165 Ind. App. at 104, 330 N.E.2d at 765, we stated that
“[appellant’s] mistake did not even rise to the level of a mistake of law,
but rather constituted only an error of judgment . . . not the kind of
excusable conduct contemplated by the words ‘mistake, surprise or excusable
Although we sympathize with the position of Ault and Mikels, their
reliance on an attorney’s representation prior to the filing of the summons
and complaint does not constitute either excusable neglect or mistake
sufficient to justify setting aside a default judgment.
We reverse and remand for proceedings consistent with this opinion.
SHARPNACK, C.J., and KIRSCH, J., concur.
 The State Bank of Medora entered into an agreed judgment with the
Bank’s lien as a priority. The Bank is not a party to the instant appeal.
 There is some dispute between the parties as to whether the hearing was
recorded. As it appears no new evidentiary matters were discussed at the
hearing, we find the Record is sufficient for our purposes on appeal.
 T.R. 60(B) requires that a party moving to set aside a default
judgment allege a “meritorious claim or defense.” Mason does not contend
that Ault and Mikels failed to allege or prove a meritorious defense. A
meritorious defense is one demonstrating that, if the case were retried on
the merits, a different result would be reached. Baxter v. State, 734
N.E.2d 642, 646 (Ind. Ct. App. 2000).