624 N.E.2d 484 | Ind. Ct. App. | 1993
Case Summary
Appellant-defendant, All Seasons Exteriors, Inc. (“All Seasons”), appeals from the trial court’s denial of its Motion to Set Aside Default Judgment. We affirm.
Issue
All Seasons presents one issue for our review: whether the trial court abused its discretion in denying All Seasons’ motion to set aside default judgment.
Facts and Procedural History
On April 30, 1991, Annie M. Randle (“Randle”), entered into a contract with All Seasons to repair her porch roof. The repairs were completed on May 12, 1991; however, the roof continued to leak. During the next four months, Randle contacted All Seasons on five separate occasions concerning the leaky roof. On each occasion, All Seasons attempted to repair the roof, but despite its efforts the roof still leaked.
On October 22, 1991, Randle filed a complaint in small claims court alleging that All Seasons improperly repaired her roof and requested $1,500 in damages. A trial date was set for November 19, 1991, and service was made on All Seasons by the county sheriff. On November 18, 1991, a secretary for All Seasons’ counsel contacted the court clerk’s office and requested a continuance of the trial date. The clerk granted the continuance
On December 13, 1991, All Seasons filed a motion to set aside default judgment claiming that a continuance had been granted, there had been a mix-up in the clerk’s office, and a meritorious defense to Randle’s action existed. After a hearing, the trial court denied the motion. On March 19, 1992, All Seasons filed a motion to correct errors alleging the same reasons for vacation of the default judgment. After a hearing, the trial court denied the motion.
Discussion and Decision
Indiana Small Claims Rule 10(C) provides: “Upon good cause shown the court may, within one year after entering a default judgment, vacate such judgment and reschedule the hearing of the original claim.” The party moving to set aside a default judgment has the burden to show that relief should be granted. Smith v. Patel (1990), Ind.App., 560 N.E.2d 1260. The movant must establish, by affidavit or evidence introduced at a hearing, the existence of a factual basis for relief and a meritorious defense. Id. A factual basis for relief can be either mistake, surprise, or excusable neglect. Id. A trial court’s decision to grant or deny a motion to set aside a default judgment will be reviewed for an abuse of discretion. Id.
Indiana Small Claims Rule 9 provides: “Either party may be granted a continuance for good cause shown. Except in unusual circumstances no party shall be allowed more than one continuance in any case and all continuances must have the specific approval of the court.” (emphasis added). This court has previously held that counsel’s action of contacting the trial judge’s secretary and obtaining her approval of a continuance did not comply with Indiana Rule of Trial Procedure 53.4
The trial court’s decision denying All Seasons’ motion to set aside default judgment was not an abuse of discretion.
Affirmed.
. The parties are in dispute, and the record is unclear, as to whether the clerk attempted to grant the continuance subject to All Seasons’ notification of Randle, or whether the clerk attempted to grant the continuance and merely requested that All Seasons notify Randle of the change in trial date. Whether notification was or was not a condition precedent to the granting
. Trial Rule 53.4 provides: “Upon motion, trial may be postponed or continued in the discretion of the court, ...” Trial Rule 53.4 was renumbered Trial Rule 53.5 effective January 1, 1983.
