Estella L. Brown and Zachary Gibbons, Appellants-Defendants v. David Saunders, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Estella Brown ¹ appeals the trial court's denial of her motion for relief from judgment. Brown argues the trial court abused its discretion when it denied her motion for relief from judgment based on excusable neglect. We affirm.

Facts and Procedural History

[2] On March 18, 2023, David Saunders was a guest at the premises owned by Brown at 3018 Fletcher Street in Anderson, Indiana. While there, Saunders was attacked by Brown's dog. On June 1, 2023, Saunders filed suit against Brown alleging negligence and contended the dog attack resulted in “serious and permanent personal injuries, including disfigurement and deformity, and mental and physical pain and suffering and emotional anguish.” (Appellee's App. Vol. II at 15.) The initial pleading and related summonses listed the wrong address for Brown.

[3] Saunders discovered the mistake of address, and filed an amended pleading on July 20, 2023, updating Brown's address to the correct address. Saunders sent a second summons (“Alias Summons”),² which required Brown to respond to his complaint “within twenty (20) days, commencing the day after you receive this Summons, (or twenty-three (23) – [sic] if this Summons was received by mail).” (Id. at 17.) The Alias Summons was served by the sheriff and the notation on the pleading indicated notice was received by “Personal Service Read” on July 24, 2023. (Id. at 21.)

[4] Brown did not enter an appearance or file any responsive pleading to the amended complaint within twenty days of receiving the Alias Summons. On August 4, 2023, Brown was served with notice of a “telephonic pretrial conference” to be held on September 7, 2023. (Id. at 4.) The Chronological Case Summary indicates the notice was achieved by “copy left and mailed by Bailiff.” (Id.) Brown did not respond to this notice. On September 6, 2023, the trial court rescheduled the telephonic hearing for October 5, 2023, and sent notice to Brown of the rescheduled date. Brown did not respond to this notice. On September 26, 2023, Saunders filed a Motion for Entry of Default Judgment, which the trial court granted on September 27, 2023.

[5] On October 23, 2023, Brown filed a handwritten “Petition for Failure to Notify,” in which she stated:

I am filing this potition because my case was continued on Sept. 7th to October 5th the clerk let me know it was continued and told me that the lawyer would send me a letter through the mail. I got no letter nor have had any contact with the lawyer. A judgement was entered on Sept 27th against me. I dont find that fair.

(Id. at 28) (formatting in original omitted) (errors in original). On October 24, 2023, the trial court entered into the Chronological Case Summary “[t]he court takes no action on the defendant's Motion for Failure to Notify.” (Id. at 5) (original formatting omitted).

[6] The trial court held a damages hearing on July 24, 2024, at which Brown appeared pro se.³ On July 29, 2024, the trial court entered final judgment against Brown in the amount of $100,000 plus costs of $157. On August 21, 2024, Brown filed a motion to set aside judgment, and alleged defenses to Saunders's claim, specifically that she did not own the type of dog described by Saunders, that Saunders had pre-existing conditions prior to the dog bite, and that “[t]he Plaintiff has had more than one lawyer where the Defendant feels proper Court procedures were not followed” (Id. at 33.) Brown then alleged, regarding certain procedural matters:

1. The Defendant did not receive evidence of the case until 7/24/24.[4]

2. The Default Judgement was ordered 9/27/23, before the Defendant received any evidence.

3. The phone conference scheduled for 9/06/23 was cancelled without prior notice and without giving the Defendant the chance to object. The phone conference was rescheduled 10/05/23, but by them a default judgement was ordered.

4. The Defendant did not receive proper service during litigation.

(Id.) (errors in original) (footnote added). The trial court summarily denied Brown's motion to set aside judgment on August 22, 2024.

Discussion and Decision

[7] As an initial matter, we note that Brown proceeds pro se in this appeal. We hold pro se litigants to the same standard as trained attorneys and afford them no inherent leniency because of their self-represented status. Zavodinik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). A litigant's choice to proceed pro se “does not relieve them of their duty to comply with all the rules of appellate procedure,” Basic v. Amouri, 58 N.E.3d 980, 986 (Ind. Ct. App. 2016), reh'g denied, “and they must be prepared to accept the consequences of their failure to do so.” Id. at 984. “One of the risks that a [litigant] takes when he decides to proceed pro se is that he will not know how to accomplish all of the things that an attorney would know how to accomplish.” Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. denied 558 U.S. 1074 (2009). We will not become an “advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.” Perry v. Anonymous Physician 1, 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied, cert. denied 577 U.S. 873 (2015).

[8] Brown appeals the trial court's denial of her “Motion to Set Aside Default Judgment.” (Appellee's App. Vol. II at 33.) Although Brown did not cite any specific rule in her motion, motions to set aside default judgments are governed by Indiana Trial Rule 60(B), which provides that a court may relieve a party from judgment “for mistake, surprise, or excusable neglect.” See Trial R. 55(C) (“A judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B).”). Accordingly, we analyze Brown's motion under the Trial Rule 60(B) framework, regardless of whether she specifically invoked that rule.

[9] Brown argues the trial court abused its discretion when it denied her motion for relief from judgment. Brown frames her argument primarily as a service of process issue under Indiana Trial Rules 4 and 4.1, asserting she “was not subpoenaed properly” and was denied due process. (Br. of Appellant at 6.) However, as discussed above, her motion must be analyzed under the Trial Rule 60(B) framework, which requires a showing of “excusable neglect.” Questions regarding the sufficiency of service of process are reviewed de novo as questions of law, and service of process is designed to satisfy the notice element of due process. Cotton v. Cotton, 942 N.E.2d 161, 164 (Ind. Ct. App. 2011). To succeed on her motion, Brown must demonstrate that her failure to respond to the complaint constituted excusable neglect, regardless of how she characterizes the issue. “There is no general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1),” and “[e]ach case must be determined on its particular facts.” Huntington Nat. Bank v. Car-X Assoc. Corp., 39 N.E.3d 652, 655 (Ind. 2015). When moving for relief under Indiana Trial Rule 60(B)(1), the movant must also “allege a meritorious claim or defense.” Ind. T.R. 60(B). We review a trial court's decision regarding a motion for relief from judgment for abuse of discretion. KWD Industrias SA DE CV v. IPM LLC, 129 N.E.3d 276, 280 (Ind. Ct. App. 2019). To determine whether Brown has demonstrated excusable neglect, we must examine whether she received adequate notice of the proceedings.

[10] Indiana Trial Rule 4 governs how a litigant can serve an opposing litigant. Indiana Trial Rule 4.1(A) sets forth several methods by which a litigant can effectuate service, including:

(1) sending a copy of the summons and complaint by registered or certified mail ․ to his residence ․ ; or (2) delivering a copy of the summons and complaint to him personally; or (3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode ․

Brown personally received notice of Saunders's complaint via Alias Summons on July 24, 2023. The sheriff's return stamp on the Alias Summons states “Personal Service Read” for Brown, at Brown's correct address, indicating the Alias Summons was given to Brown at that address. The Alias Summons fully complied with the requirements of Trial Rule 4.1(A)(2), which permits service “by delivering a copy of the summons and complaint to him personally.” Regarding other notices as part of the proceedings, Brown acknowledged in her petition for failure to notify that she knew there was a telephonic hearing on September 5, 2023, and that it had been rescheduled for October 5, 2023. She also appeared at the July 24, 2024, damages hearing. Based thereon, we conclude Brown received notice of Saunders's complaint against her and subsequent hearings as part of the proceedings.

[11] As noted in the Alias Summons, Brown was required to file an answer or responsive motion within twenty days of service pursuant to Trial Rule 6(C). She did not do so, thus failing to avail herself of the process by which she could present a defense to Saunders's allegations. This failure to respond entitled Saunders to seek default judgment under Trial Rule 55(A), which states, in relevant part, “when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise comply with these rules and that fact is made to appear by affidavit or otherwise, the party may be defaulted by the court.” Because Brown received notice and did not respond, she has not demonstrated excusable neglect and we conclude the trial court did not abuse its discretion when it denied Brown's motion for relief from judgment. See, e.g., Sanders Kennels v. Lane, 153 NE.3d 262, 268 (Ind. Ct. App. 2020) (no excusable neglect when movant did not file responsive pleadings to documents properly served to the movant).

Conclusion

[12] Brown was properly served with the complaint but failed to respond as required by the Indiana Trial Rules. Therefore, the trial court did not abuse its discretion when it denied Brown's motion for relief of judgment because Brown did not demonstrate her failure to respond to Saunders's complaint was due to excusable neglect. Accordingly, we affirm.

[13] Affirmed.

FOOTNOTES

1.   Brown's co-defendant, Zachary Gibbons, does not file an appeal. However, a “party of record in the trial court ․ shall be a party on appeal.” Ind. App. R. 17(A). We limit our iteration of the facts and the analysis of the issues to those pertaining to Brown.

2.   A second summons is often called an alias summons. See, e.g., Raisor v. Jimmie's Raceway Pub, Inc., 946 NE.2d 72, 74 (Ind. Ct. App. 2011) (using term “alias summons” to mean a second attempt at serving complaint to defendant after the original notice was returned).

3.   The record does not include a transcript of this hearing.

4.   It is possible this is a scrivener's error because Brown was served with notice of Saunders's complaint on July 24, 2023.

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.