*1 40 Hawkins, Indianapolis, for
William M. appellant. McGEE, Appellant- R. Eddie Below, Plaintiff Johnson, Abernathy, W. Jon C. James III, Kraege, Indianapolis, ap for & Goodin v. pellee. REYNOLDS, Appellee- Traci M. Judge. Defendant Below. STATON, No. 49A02-9209-CV-452. personal in Eddie McGee sustained in accident with Traci juries an automobile Indiana, Appeals of Court of Later, attorney had Reynolds. McGee's Third District. Reynolds' negotiations with considerable Aug.3, 1993. to settle claim for dam insurer McGee's ages. negotiations reached an When the impasse, attorney McGee's filed suit with notifying out McGee's insurer and obtained judgment. default Because of an incor a summons, rect address on the McGee's at torney Reynolds. the failed to serve Twice judg trial court denied McGee a default original ment-oncee on the service and again In publication on of notice. the meantime, Reynolds' insurer sent McGee's attorney inquiring a letter as to the status claim, attorney ignored of the but McGee's Finally, inquiry respond. the and did not copies served of the summons and McGee State, complaint Secretary on the of as Reynolds' agent.1 judgment A default for $85,000.00 granted. was Later, entry seven months after the of judgment, Reynolds received the default judgment notice of the default and filed a motion to set it aside. The trial court granted Reynolds' appeals motion. McGee presents that order. While McGee two is- review, only for need sues our we address whether the trial court abused its discre- granting Reynolds' in tion motion to set judgment aside McGee's default under Ind. 60(B)(8). Trial Rule We affirm. 60(B)(3)
Trial Rule McGee contends the trial court abused its granting Reynolds' discretion in motion to 4.10, 4.4(B) sufficiency 1. Pursuant to Ind. Trial Rule and The test for of service under due Secretary when the of State is served as the process requires reasonably the service be calcu ' agent, Secretary required defendant's the is to Inc., Mercury-Lincoln, lated to inform. Glennar (1975), 144, Riley Ind.App. copies Complaint v. 167 338N.E.2d mail the defendant of the and case, present Secretary Summons. In the the 670, case, present trans. denied. In the McGee's Complaint mailed the and Summons to an ad publication reasonably likely notice was more October, dress McGee knew was incorrect. In Secretary's mailing. to inform than the Secretary's mailing unopened. the was returned
41 to set aside the de- judgment. Reynolds' misconduct sufficient default set aside the judgment. fault 60(B)(8). relied, TR. part, in on motion 60(B)(8) relief from a provides for TR. We affirm. (whether here- judgment for "fraud default extrinsic), intrinsic or
tofore denominated
RUCKER, J.,
in
concurs
result with
misconduct of
misrepresentation, or other
separate opinion.
party".
Reynolds
contends
an adverse
SHIELDS, J.,
counsel,
concurs with J.
McGee,
mis-
through
committed
concurring
opinion.
in
RUCKER'S
result
conduct.
60(B)(8)
RUCKER,
mo
Reynolds'
Judge, concurring
In
TR.
in
support of
result.
(1983),
tion,
relies on
v.
she
Boles Weidner
agree
I
the trial court did not abuse its
288, 290,
Ind.,
reh. denied.
449 NE.2d
setting
in
judg-
discretion
aside the default
present
factually
to the
Boles is
similar
However, I
ment.
do so for reasons differ-
decided under
though
was
case even
Boles
by
majority.
ent than those discussed
the
general
60(B)(1).
there is no
T.R.
While
First,
persuaded
I
attorney
am not
McGee's
insurer of a
duty to
the defendant's
inform
fraud,
engaged
misrepresentation,
in either
lawsuit,
Boles,
supreme court con
in
the
contemplated by
or other misconduct
Ind.
notify
failure to
the
plaintiff's
cluded the
60(B)(8)
Trial Rule
which would afford re-
the
of the existence of
defendant's insurer
hand,
Reynolds.
lief to
On the other
Ind.
had occurred
negotiations
after
lawsuit
60(B)(4),
ground
Trial Rule
the alternative
determining
in
was a valid consideration
based,
upon
Reynolds' motion
which
was
judgment.
to set aside a default
whether
permits the court to set aside a default
also concluded
Supra, at 290. The court
judgment
judgment where
was entered
failure,
alone,
standing
in
that such
was
against
party
only by publication
served
a
judgment.
sufficient to set aside a default
knowledge
and without actual
of the ac-
Id.
tion.
attempts
The record here reveals the two
case,
present
In the
the failure of
personally
Reynolds
the sum-
to
serve
with
give
attorney to
notice of the law
McGee's
complaint
mons and
failed and thus she
negotiating
Reynolds'
suit after
with
insur
only by publication.
served
The ree-
was
attorney
er does not stand alone. McGee's
Reynolds
ord
reveals
had no actual
also
-
duty
Reyn
knew of the insurer's
to defend
knowledge of the lawsuit nor the subse-
1990,
Additionally,
July
olds.
in
of
after
quent
judgment
default
until
several
the denial of McGee's first motion for a
judgment had
entered.
months after
been
judgment,
default
the insurer wrote to
the default
Under
these circumstances
attorney
inquired
and
the
McGee's
about
judgment
properly set aside. See
was
inquiry
status of McGee's claim. The
was
(1972),
Ind.App.
151
Duncan v. Binford
ignored by
attorney.
McGee's
199,
591; Keiling
278 N.E.2d
v. McIntire
attorney
The decision of McGee's
not to
(1980),Ind.App.,
This conduct cannot be tolerated. conclude
We that the trial court did not determining
abuse its discretion in that the attorney
actions of McGee's constituted