APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Robert R. Altice, Jr., Judge. Cause No. 49D05-1210-CT-41167.
ATTORNEY FOR APPELLANT: TODD A. WOODMANSEE, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: W. RUSSELL SIPES, The Sipes Law Firm, Indianapolis, Indiana.
FRIEDLANDER, Judge. MATHIAS, J., and PYLE, J., concur.
Dan Weaver appeals from the trial court's denial of his motion to set aside a default judgment entered against him in favor of George Niederkorn. Weaver raises one issue, which we restate as whether the trial court abused its discretion in denying his motion.
On October 23, 2012, Niederkorn filed a complaint against Weaver in Marion Superior Court seeking damages for defamation, invasion of privacy, and intentional infliction of emotional distress. On the same date, Niederkorn's attorney served written discovery and notice of a deposition on Weaver by first class mail. The trial court clerk attempted to serve a summons on Weaver by certified mail, but the summons was returned unclaimed. On October 27, 2012, Niederkorn personally served a copy of the complaint and summons on Weaver at his residence, which is across the hall from Niederkorn's residence in a condominium complex.
Weaver failed to file a timely responsive pleading, and Niederkorn filed a motion for the entry of default judgment on December 4, 2012. On the same date, Niederkorn's attorney served a copy of the motion on Weaver by first class mail. On December 11, 2012, the trial court entered an order granting Niederkorn's motion for the entry of default judgment. On the same date, the trial court set an evidentiary hearing for February 19, 2012 to determine costs and damages.
Approximately one week later, the trial court received a letter from Weaver dated December 10, 2012 (one day before the entry of default judgment). In the letter, Weaver claimed he had received a letter and a copy of the motion for default judgment on December 6, 2012, but that he had not received any paperwork regarding the lawsuit prior to that date and had no idea what the lawsuit was about. Weaver requested that the trial court take no action on the motion for default judgment until February 13, 2013 in order to allow Weaver to obtain counsel.
On the date of the February 19, 2013 evidentiary hearing, the trial court received another letter from Weaver. In the letter, which was dated February 11, 2013, Weaver requested a continuance of the hearing due to a work conflict and his inability to find an attorney. When Niederkorn and his attorney appeared for the scheduled hearing, the trial court advised them of Weaver's letter. Although Weaver failed to appear, the trial court nevertheless granted his request for a continuance and reset the hearing for March 19, 2013.
Niederkorn and his attorney appeared for the March 19, 2013 hearing. Weaver again failed to appear. The trial court noted that it had heard nothing from Weaver since the letter received on February 19, and that it had specified in its previous order that no further continuances would be granted. The court proceeded with the hearing. At the conclusion of the evidence, the trial court stated that it would enter judgment in Niederkorn's favor in the amount of $40,336.18.
After the evidentiary hearing, the trial court received a letter from Weaver dated March 13, 2013, in which he asked for a continuance of the evidentiary hearing because he was on call for jury duty in Marion County on the date of the hearing. After confirming that Weaver had not been required to report for jury duty on the date of the ...