Jeffrey L. Humble and Kristi L. Humble, Appellants-Defendants v. Barbara Robinson, et al., Appellees-Plaintiffs (2025)

MEMORANDUM DECISION

[1] Jeffrey L. Humble and Kristi L. Humble appeal the trial court's denial of their motion to set aside a default judgment that enjoined the Humbles’ construction of a pole barn and was obtained by Daniel L. Joyce and twenty-eight other homeowners ¹ (collectively “Neighbors”) who live in the Humbles’ neighborhood. The Humbles argue the trial court abused its discretion by denying their motion to set aside the default judgment, especially without holding a hearing on the motion. Because the Humbles did not allege circumstances that could demonstrate the mistake, surprise, or excusable neglect required for relief from a judgment, the trial court did not err by denying their motion and was not required to hold a hearing before denying their motion. Accordingly, we affirm.

Facts and Procedural History

[2] In August 2023, the Humbles began constructing a new building on their property in the Hickory Hills subdivision in southern Madison County. On September 19, 2023, counsel for Neighbors sent a letter to the Humbles informing the Humbles that Neighbors believed the new building violated their subdivision's Protective Covenants and asking the Humbles to remove the building.

[3] On September 28, 2023, Neighbors filed a complaint in Madison Circuit Court that alleged the Humbles were building a “large metal pole barn” that violated a number of the recorded Protective Covenants for their neighborhood and requested an injunction that required the Humbles to remove the pole barn and any commercial equipment ² on the premises. (Appellant's App. Vol. 2 at 18.) Neighbors attached four exhibits to their complaint: a copy of the Protective Covenants, Jeffrey's July 2023 application with the Madison County Planning Commission for a variance to build a forty foot by thirty-two foot free-standing building on the Humbles’ property six feet closer to the property line than permitted by county law, the building permit granted for that structure, and the letter sent by Neighbors’ counsel on September 19, 2023, to inform the Humbles that Neighbors believed the Humbles’ new building violated the Protective Covenants.

[4] The complaint was served on the Humbles on October 6, 2023. On October 12, 2023, Jeffrey visited the office of Neighbors’ counsel to discuss the situation, and after that meeting, Neighbors’ counsel sent the following email to Jeffrey to memorialize their conversation:

Thank you for stopping in to discuss the litigation that I have filed on behalf of many of your neighbors concerning the large pole barn that you are building that we think is in violation of the Protective Covenants.

A brief summary of our conversation would be that you acknowledge the building is in violation and that you believe you were misled by the County Planning Department. Further, you want to work with the neighborhood to find a solution. You discussed changes to the building that you could do that might satisfy the neighborhood concerns.

You agreed that you would put your suggested solution down in writing and with some diagrams or photos and get that to me no later than the morning of October 17, 2023. I will share that information with my clients so that they can discuss the suggestion that you are going to make.

I shared that I am leaving on a 3 week trip that evening. I will not file any motion for a default judgment based on the 20 day deadline that will be upon us shortly. I will hold off on that until after my clients have had a fair opportunity to discuss your suggestion and to consider my thoughts as well. If I decide that it is necessary to move forward with the litigation I will give you 10 days written notice by email so that you may file such a response as you deem appropriate.

(Id. at 79.)

[5] On October 24, 2023, Jeffrey emailed Neighbors’ counsel to ask if Neighbors had made any decision about the Humbles’ building. (Id. at 80.) On December 12, 2023, Neighbors’ counsel emailed Jeffrey to inform him that Neighbors rejected the Humbles’ suggested modifications of the building as insufficient to satisfy their concerns about the Protective Covenants. The email also indicated: “I had told you I would not move forward on the litigation while we were discussing this. This email is notice that I will move forward 10 days from now․ I urge you to consult with your attorney.” (Id. at 81.) On December 21, 2023, Jeffrey responded to counsel's notice with the following language:

I am seeking legal counsel. As per our conversation on October 12, 2023, I stated to you that I leave on December 24, 2023 and will return late April, 2024. I urge you to make sure everything the plaintiffs are asking for are [sic] in the covenants. If you decide it is necessary to move forward, I will return in late April, 2024.

(Id. at 83.)

[6] Also on December 21, 2023, Neighbors filed a motion for default judgment. Six days later, the trial court granted default judgment and ordered:

1. Defendants Jeffrey L. Humble and Kristi L. Humble have been properly served and have failed to Appear or file any responsive pleading. The time to do so has long passed.

2. Jeffrey L. Humble and Kristi L. Humble are in violation of the Protective Covenants applicable to their residence located on Lot Numbered 16 in Hickory Hills[.]

3. A Permanent Injunction is hereby entered requiring Jeffrey L. Humble and Kristi L. Humble to comply with the Protective Covenants.

4. The large metal pole barn and dump truck and all commercial equipment shall be removed from the premises forthwith.

(Id. at 47.)

[7] On February 15, 2024, Neighbors filed a motion for rule to show cause, asking the trial court to hold the Humbles in contempt for not complying with the default judgment order. Neighbors’ counsel mailed a copy of this motion to the Humbles at their home address, but the envelope was returned to counsel, so counsel emailed the motion to the Humbles at Jeffrey's email address. The trial court set a hearing on Neighbors’ show cause motion for March 6, 2024. On March 1, 2024, counsel for the Humbles entered an appearance and moved to continue the hearing. The trial court granted the motion to continue and, on March 8, 2024, rescheduled the show cause hearing for May 15, 2024.

[8] On May 6, 2024, the Humbles filed a motion to set aside the default judgment. In that motion, the Humbles alleged, in necessary part:

5. Following the service of the complaint on October 6, 2023, JEFF met in person and had several e-mail exchanges in October, 2023, with Plaintiffs’ counsel Bryce D. Owens regarding potential settlement of the dispute, all of which led him to understand that Mr. Owens was leaving Indiana for an extended vacation and that no action would be taken until he returned, and that JEFF and KRISTI were relocating for the winter to Florida beginning December 24, 2023 through late April, 2024, and that no action would be taken in this case until they returned to their home in Indiana.

6. JEFF and KRISTI assert a misunderstanding or mistake exists about the parties’ intentions to forego action in the case until April, 2024, and that they were surprised to learn a default judgment had been entered when their legal counsel informed them of the entry.

7. Any failure to answer or otherwise respond to Plaintiffs’ complaint was the result of excusable neglect because JEFF and KRISTI reasonably believed they had an understanding with Mr. Owens that no action would be taken in the case while they attempted to negotiate a compromise and settlement and until they returned home from Florida.

(Id. at 61) (capitalizations in motion).

[9] On May 10, 2024, the Humbles filed another motion to continue the show cause hearing, which the trial court denied. Then, on May 15, 2024, the Humbles filed an emergency motion to continue the show cause hearing, which the trial court granted. The court rescheduled the hearing for July 16, 2024.

[10] On May 23, 2024, Neighbors filed their response to the Humbles’ motion to set aside the default judgment. The response argued “[t]here is no mistake, surprise or excusable neglect as contemplated in Trial Rule 60(B)(1)[.]” (Id. at 71.) To their response, Neighbors attached copies of counsel's October 12, 2023, email to Jeffrey, (id. at 79); Jeffrey's October 24, 2023, email to counsel, (id. at 80); counsel's December 12, 2023, email to Jeffrey, (id. at 81); a picture of the pole barn on December 18, 2023, (id. at 82); Jeffrey's December 21, 2023, email to counsel (id. at 83); and a copy of the envelope demonstrating Neighbors’ February 15, 2024, show cause motion had been returned to Neighbors’ counsel as undeliverable and “UNABLE TO FORWARD” at the Humbles’ home address. (Id. at 84) (capitalization in original). On June 4, 2024, the trial court entered an order denying the Humbles’ motion to set aside the default judgment.

Discussion and Decision

[11] The Humbles argue the trial court erred by denying their motion to set aside the default judgment entered against them. Pursuant to Indiana Trial Rule 60(B)(1), “upon such terms as are just[,]” a trial court may set aside a default judgment based on “mistake, surprise, or excusable neglect[.]” To obtain relief, the movant's motion must also be “timely” and “allege[ ] a meritorious claim or defense.” Riddle v. Cress, 153 N.E.3d 1112, 1113 (Ind. 2020), reh'g denied.

[12] On appeal, we review the trial court's decision for an abuse of discretion, Wamsley v. Tree City Village, 108 N.E.3d 334, 335 (Ind. 2018), and the discretion we grant to the trial court is “ ‘necessarily broad’[.]” Huntington Nat'l Bank v. Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015) (quoting Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999), trans. denied). In our review, we “resolv[e] any doubt as to the propriety of default judgment in favor of the defaulted party[,]” Wamsley, 108 N.E.3d at 335-36, but we do not reweigh evidence or substitute our judgment for the trial court's judgment. Huntington Nat'l Bank, 39 N.E.3d at 655.

[13] “There is no general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1)[.]” Id. (quoting Kmart, 719 N.E.2d at 1254). Instead, “each case must be determined on its particular facts.” Id. (quoting Kmart, 719 N.E.2d at 1254). If a defaulted party's delay is “wholly attributable to [its] inattentiveness,” without a breakdown in communication between agents of that party, then no excusable neglect has occurred. Id. at 657. Nor does failure to read mail constitute excusable neglect. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).

[14] Neighbors filed their complaint on September 28, 2023, and the Humbles did not respond to their complaint or even file an appearance until their counsel filed an appearance on March 1, 2024 – five months after the complaint, two months after the motion for default, and two weeks after the motion for contempt. Although Jeffrey went to the office of Neighbors’ counsel to attempt to negotiate a resolution in October 2023, the emails submitted by Neighbors’ counsel clearly indicated that Neighbors would give the Humbles only a ten-day notice before moving forward in court. The Humbles were notified on December 12, 2023, that negotiations had failed, that Neighbors were moving forward with their complaint, and that Humbles should hire counsel. Jeffrey acknowledged receiving that notification on December 21, 2023, and indicated he would hire counsel. Jeffrey's failure to do so until the end of February cannot constitute excusable neglect. See Huntington Nat'l Bank, 39 N.E.3d at 653 (Failure to timely refer a summons and complaint to counsel “is neglect, but not excusable neglect as the term appears on Rule 60(B)(1).” (quoting Smith, 711 N.E.2d at 1262)). While the Humbles may have erroneously believed that they could ignore court proceedings while going on a four-month vacation without forwarding their mail, this is the risk the Humbles took when they did not hire counsel prior to leaving town. See, e.g., Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2017) (“[P]ro se litigants are held to the same legal standards as licensed attorneys ․ and must be prepared to accept the consequences of their failure” to follow the established rules of procedure.), reh'g denied, trans. denied. The Humbles knew about the complaint, and they knew Neighbors were moving forward with the complaint as of December 21, 2023. The Humbles chose to go on vacation and ignore the court proceedings.³ The trial court did not abuse its discretion when it refused to find this neglect excusable. See, e.g., Huntington Nat'l Bank, 39 N.E.3d at 657-8 (Trial court did not abuse its discretion when it denied 60(B)(1) motion because the “untimely response to service is wholly attributable to the defaulted party's inattentiveness.”).

[15] The Humbles also argue the trial court erred by not holding a hearing at which they could present evidence prior to denying their motion to set aside the default judgment.⁴ Trial Rule 60(D) indicates the trial court “shall hear any pertinent evidence” when ruling on the motion. However, we have held this rule is not violated by a trial court's failure to hold a hearing “when there is no pertinent evidence to be heard.” Thompson v. Thompson, 811 N.E.2d 888, 904 (Ind. Ct. App. 2004), reh'g denied, trans. denied. The factual questions raised by the Humbles’ motion to set aside involved whether and how the Humbles’ metal pole barn violated the Protective Covenants and whether Neighbors themselves violated those Protective Covenants to such an extent that they cannot be enforced against the Humbles – factual issues that impacted whether the Humbles had a meritorious defense to the Neighbors’ complaint, not whether their Humbles’ failure to respond was due to “mistake, surprise, or excusable neglect” justifying relief under Trial Rule 60. Without a viable allegation of mistake, surprise or excusable neglect, the factual questions raised by the Humbles’ motion were moot, and the court did not need to hold a hearing. See, e.g., Thompson, 811 N.E.2d at 904 (no need for trial court to hold hearing to accept evidence about prejudice when party could not establish excusable neglect).

Conclusion

[16] The Humbles’ decision to ignore court proceedings while on vacation cannot be construed as the “mistake, surprise, or excusable neglect” required to justify relief from judgment under Trial Rule 60(B)(1), and no hearing was necessary before reaching that decision. We accordingly affirm the trial court's denial of the Humbles’ motion for relief from judgment.

[17] Affirmed.

FOOTNOTES

1.   The named plaintiffs below included: Daniel L. Joyce, Teresa L. Joyce, William L. Hutton, Donna E. Hutton, Dennis R. McCammon, Reva J. McCammon, Sounders Family Trust, Ricky D. Mowerly, Patricia A. Mowerly, Teresa D. Lee, Daniel C. Lee, Timothy A. Ogden, Patricia L. Ogden, Caplinger Family Trust, Janice K. Snodgrass, Martin D. Snodgrass, Susan E. Galliher, John W. Galliher, Douglas Robinson, Barbara Robinson, Barbara Haskins, Terry L. Warrum, Lisa A. Warrum, Dixie Burmeister, Jay Kevin Stephens, Jacqueline Stephens, Jerry W. Seward, Jay W. Jarrett, and Brenda M. Jarrett.

2.   Neighbors alleged the Humbles had a large dump truck and other equipment from Jeffrey's former business in the barn and on their property.

3.   Nor can the Humbles claim mistake, surprise, or excusable neglect based on Jeffrey's note to Homeowners’ counsel that indicated he was leaving until April and, in essence, would deal with the complaint then. (Appellants’ App. Vol. 2 at 83.) Neighbors’ counsel did not agree to such delay and, in direct conflict, had just emailed Jeffrey to say Neighbors were moving forward in ten days. Our trial rules do not allow defendants to appear or respond at their convenience or pleasure. See Ind. Trial Rule 6(D)(1) (providing twenty days for a response to a pleading); Trial Rule 55 (permitting court to enter default judgment when party fails to comply with Trial Rules). If parties were allowed such latitude, we doubt many defendants would ever respond, and then our system would not help promote an orderly and civil society.

4.   The Humbles also note the trial court's order denying their motion to set aside erroneously indicates their motion “came on for hearing” before the court denied their motion. (Appellants’ App. Vol. 2 at 4.) As the trial court was not required to hold a hearing prior to denying their motion when they had not alleged any neglect that would be excusable, that scrivener's error is harmless at most. Ind. Appellate Rule 66(A) (“No error or defect in ay ruling or order ․ is ground for granting relief or reversal on appeal where its probable impact ․ is sufficiently minor so as not to affect the substantial rights of the parties.”).

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.