Laura Turner, Appellant-Defendant v. Sonya Bowser, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After Laura Turner's dog bit Sonya Bowser, Bowser filed a complaint for damages. When Turner failed to respond, Bowser filed a motion for default judgment, which the trial court granted. Subsequently, Turner obtained counsel and filed a motion to set aside the default judgment. The court denied that motion. Then, following a damages hearing, the court ordered Turner to pay Bowser nearly $760,000 plus attorney's fees. Turner now appeals. We affirm.

Issues

[2] Turner raises the following two issues for our review:

1. Whether the trial court abused its discretion when it denied her motion to set aside the default judgment.

2. Whether the court abused its discretion when it calculated Bowser's damages.

Facts and Procedural History

[3] On January 12, 2022, Bowser, who was friends with Turner, went to Turner's house. Shortly after Bowser entered Turner's home, she was “mauled” by Turner's dog. Tr. at 57. Bowser sustained “multiple puncture wounds,” and her ankle was “fractured in three places.” Id. at 118-19. Bowser was transported to the hospital, where she underwent a surgical repair. Bowser was discharged to her home on January 14 with instructions to not bear weight on her ankle. On January 19, Bowser returned to the hospital because she had a “concern for wound drainage and infection.” Id. at 120. Doctors examined Bowser, determined that she did not have a serious infection, and instructed her to “keep an eye on it[.]” Id. That same day, Bowser started receiving home health care.

[4] In March, Bowser was instructed to begin “some” weight-bearing. Id. at 122. However, Bowser “did not tolerate the weight-bearing pain very well,” and her symptoms “became worse.” Id. at 122. On April 28, Bowser followed up with a physician, who took x-rays of Bowser's ankle. The images showed that the hardware in Bowser's ankle was “loosening” and not “maintaining the fixation that is intended.” Id. at 122. That physician referred Bowser to a foot and ankle specialist.

[5] On May 16, Bowser went to the emergency room because the “pain had worsened” and there was “increased” swelling and drainage. Id. at 123. Doctors determined that Bowser had an infection and placed her on antibiotics. Then, on June 8, Bowser saw the foot and ankle specialist. At that point, Bowser had a “bad infection,” the hardware was “failing,” her fracture was “getting worse,” and the bone was “subluxing or dislocating out of its normal position.” Id. at 124. The doctor informed Bowser that the options were to amputate her lower leg or undergo a “fusion” to help the fractures heal. Id. Bowser elected the fusion. As part of that process, Bowser first had to undergo surgery to remove the hardware and treat the infection, then the placement of temporary hardware to maintain the alignment of the ankle, and a final surgery to fuse the bones in her ankle.

[6] Meanwhile, on March 14, Bowser filed a complaint for damages against Turner. Bowser alleged that Turner had failed to adequately supervise the dog and that, as a result of Turner's “carelessness and negligence,” Bowser suffered physical and mental injuries and has incurred and will continue to incur medical expenses. Appellant's App. Vol. 2 at 14. On May 20, Bowser filed a motion for default judgment after Turner failed to file a responsive pleading. The court granted Bowser's motion on June 1, entered a default judgment in favor of Bowser on the issue of liability, and scheduled a hearing to determine damages.

[7] On August 15, Turner, pro se, sent an unsigned letter to the court to “formally contest” Bowser's lawsuit. Id. at 20. Thereafter, on December 13, Turner obtained legal counsel and filed a motion to set aside the default judgment pursuant to Indiana Trial Rule 60(B). In that motion, Turner alleged that “a breakdown of communication” caused her “failure to timely file” an answer. Id. at 23. She further asserted that she had not invited Bowser into her home and that Bowser had “failed to exercise a reasonable degree of care and caution[.]” Id.

[8] The court held a hearing on Turner's motion on March 7, 2023. During that hearing, Turner testified that, at the time Bowser filed the lawsuit, Turner was “heavily using drugs” and had “several cases pending.” Tr. at 7. She further testified that she had “a lot going on” at that time and that the complaint had been “lost in the shuffle.” Id. at 7, 10. In addition, she testified that she had been “irresponsible” because she would “get a stack of mail” but not “go through it right away.” Id. at 18-19. She then testified that she did not learn about the lawsuit until August of 2022. And she testified that she had attempted to prevent Bowser from entering her house on the day of the incident. Following the hearing, the court denied Turner's motion to set aside the default judgment.

[9] Thereafter, in June 2024, the court held a hearing on damages. Bowser testified that she had followed all of the doctors’ orders following each of her appointments and surgeries. She also testified that, as a result of the attack, she suffers from increased “anxiety, depression, night terrors, and post-traumatic stress disorder.” Id. at 63. She further testified that she could no longer do any of her hobbies. On cross-examination, Bowser acknowledged that she had previously been addicted to opioids, that she was currently taking Suboxone as a treatment plan for that addiction, and that she had “begun smoking crack[.]” Id. at 84.

[10] Bowser then called Dr. Robert Gregori, a physical medicine rehabilitative doctor who had examined Bowser. Dr. Gregori testified that, as a result of the ankle fusion, Bowser had sustained a 60% impairment to the leg, which converts to a 24% impairment to the whole person. He also testified that “obviously the dog bite caused the fractures” and that “all subsequent care was related.” Id. at 133. He testified that Bowser could experience future problems related to both her physical and mental issues. And, relying on a life expectancy table, Dr. Gregori opined that Bowser's life expectancy was 22.86 years. On cross-examination, Dr. Gregori acknowledged that active addiction can affect a person's life expectancy “to the negative.” Id. at 148. He then acknowledged that Bowser was taking Suboxone for opioid addiction and was a smoker and that he knew “of some cocaine use[.]” Id. at 150. But that information did not “change [his] medical opinions that [he had] stated[.]” Id. at 151.

[11] Following the hearing, the court entered its findings of fact and conclusions thereon. In those findings, the court found that Bowser “was substantially compliant” with all of the doctors’ instructions and that her medical treatment “arose from” the attack. Appellant's App. Vol. 2 at 192. The court further found that Bowser “continues to have pain and suffering from the injuries suffered” during the attack and that “there is a high likelihood that [Bowser] will continue to do so for the rest of her life.” Id. at 193. The court then found that Bowser's life expectancy, based on the life expectancy table and Dr. Gregori's testimony, is 22.86 years. The court then entered judgment in favor of Bowser in the amount of $759,709.39, which included $267,509.39 in past medical expenses, $114,300 in future medical expenses, and $377,900 in pain and suffering. The court also awarded $4,600 in attorney's fees. This appeal ensued.

Discussion and Decision

Issue One: Default Judgment

[12] Turner first contends that the trial court abused its discretion when it denied her motion to set aside the default judgment. As this Court has previously stated:

The decision whether to set aside a default judgment is given substantial deference on appeal. Our standard of review is limited to determining whether the trial court abused its discretion. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.

Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999) (internal citations omitted), trans. denied. When reviewing the decision of the trial court, we will not reweigh the evidence or substitute our judgment for that of the trial court. Id. “Upon a motion for relief from a default judgment, the burden is on the movant to show sufficient grounds for relief under Indiana Trial Rule 60(B).” Id.

[13] Here, Turner filed her motion pursuant to Indiana Trial Rule 60(B)(1), which provides that a judgment by default may be set aside based on a party's “mistake, surprise, or excusable neglect[.]” The motion must be filed within one year of the judgment, and the moving party must “allege a meritorious claim or defense.” Ind. Trial Rule 60(B). There is no dispute that Turner filed her motion within one year of the default judgment. However, on appeal, she contends that the trial court abused its discretion when it denied her motion for relief from judgment because she established excusable neglect and alleged a meritorious defense.

[14] Turner specifically contends that she established excusable neglect because she was “heavily using drugs,” had “several criminal matters pending,” and was “incarcerated for a period of time” around the time that Bowser filed her lawsuit. Appellant's Br. at 12.¹ And, as a result, she contends that she “became aware of the lawsuit” in July or August. Id. at 13.

[15] However, a sheriff's deputy served a copy of the summons on March 25, 2022, by leaving a copy of the complaint at Turner's home and by mailing a copy to her address. See Appellant's App. Vol. 2 at 33. In addition, Turner received a copy of a letter from her homeowner's insurance company on April 20 that specifically referenced the lawsuit “that was filed by Sonya Bowser against Laura Turner on 3-14-22 in the Wayne County Superior Court of Indiana case #89D01-2203-CT-000013.” Id. at 35. Further, at the hearing on her motion, Turner testified that she thought the complaint was “lost in the shuffle” because she “had a lot going on at the time.” Tr. at 7, 10. She also acknowledged that she would get “a stack of mail” but not “go through it right away,” which was “irresponsible[.]” Id. at 18-19. And, notably, even when Turner learned of the lawsuit in August, five months after Bowser filed it, the only action she took was to send an unsigned letter to the court contesting Bowser's claim. Turner then failed to take any action for another four months until she ultimately retained counsel in December.

[16] Stated differently, it was Turner's own actions of voluntary drug use and criminal activity and her inaction regarding her failure to open her mail that caused her to fail to timely respond to Bowser's complaint. And simply having “a lot going on” due to drug use and criminal behavior does not support a finding of excusable neglect. Tr. at 10. Under the facts of this case, we cannot say that the trial court abused its discretion when it declined to find that Turner had demonstrated excusable neglect under Trial Rule 60(B).² We therefore affirm the court's denial of Turner's motion to set aside the default judgment.

Issue Two: Damages

[17] Turner next contends that the court abused its discretion when it calculated Bowser's damages.³ “A trial court's award of damages is subject to review for an abuse of discretion.” Roche Diagnostics Operations, Inc. v. Marsh Supermarkets, LLC, 987 N.E.2d 72, 89 (Ind. Ct. App. 2013), trans. denied. “This court will not reverse a damage award upon appeal unless it is based on insufficient evidence or is contrary to law.” Id.

Mitigation

[18] On this issue, Turner first contends that the court abused its discretion when it awarded over $267,000 in past medical damages because Bowser “failed to mitigate her damages by not following treatment orders and requirements.” Appellant's Br at. 15. As this Court has stated:

The principle of mitigation of damages addresses conduct by an injured party that aggravates or increase[s] the party's injuries. The failure to mitigate damages is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found. That is, the amount of damages a plaintiff is entitled to recover is reduced by those damages which reasonable care would have prevented. This affirmative defense has two elements, both of which the defendant bears the burden of proving. First, the defendant must prove that the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damage. Second, the defendant must prove that the plaintiff's failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant's negligent conduct.

Simmons v. Erie Ins. Exch, 891 N.E.2d 1059, 1064-65 (Ind. Ct. App. 2008) (quotation marks and citations omitted).

[19] According to Turner, Bowser's recovery “was progressing well” until April 2022, at which point “any additional injury or complications were due to Bowser's failure to follow medical directions.” Appellant's Br. at 18. However, Turner did not meet her burden to show that Bowser failed to exercise reasonable care to mitigate her post-injury damage. Indeed, Turner does not direct us to any action or inaction that Bowser took that was contrary to medical advice. Turner simply argues that Bowser received additional treatment “due to her failure to properly care for herself,” that she was unable to receive treatment through a facility due to her use of Suboxone to treat her opioid addiction, that she took “extra” Suboxone for pain, and that she was a “fall risk[.]” Id. at 17. But Turner does not indicate how Bowser failed to properly care for herself. Further, there is no evidence in the record to show that taking Suboxone caused any of the issues with her ankle following the initial surgery or that Bowser actually fell at any point. Further, Bowser testified that she had “[a]bsolutely” been following all her doctors’ orders regarding the care and treatment of her ankle. Tr. at 65. As such, Turner has failed to show that Bowser did not exercise reasonable care to mitigate her post-injury damages. In sum, Turner has not shown that Bowser failed to mitigate her damages.

Life Expectancy

[20] Turner next contends that the court abused its discretion when it relied on the life expectancy chart to determine Bowser's life expectancy and corresponding future medical expenses. Turner maintains that, when the court relied on the life expectancy chart to determine Bowser's life expectancy to be 22.86 years, it failed to account for Bowser's “addiction to opioids,” her use of crack cocaine, and her “smoking a pack of cigarettes per day.” Appellant's Br. at 19.

[21] However, Dr. Gregori testified that Bowser's life expectancy was “22.86 years.” Tr. at 137. And Dr. Gregori's opinion did not change despite his knowledge of Bowser's history of opioid addiction, “some cocaine use,” and cigarette smoking. Id. at 150. As such, there is evidence in the record to support the court's determination that Bowser's life expectancy was 22.86 years.

[22] The trial court did not err when it calculated Bowser's damages.

Conclusion

[23] The trial court did not abuse its discretion when it denied Turner's motion to set aside the default judgment. And the court did not abuse its discretion when it calculated Bowser's damages. We therefore affirm the trial court.

[24] Affirmed.

FOOTNOTES

1.   In Turner's brief, the page numbers at the bottom of each page do not match the .pdf pagination. We refer to the .pdf pagination.

2.   Because Turner has not established excusable neglect, we need not address her argument regarding a meritorious defense.

3.   Bowser contends that “the issue of damages is not properly before this Court” because Turner did not file a motion to correct error. Appellee's Br. at 26. To support her assertion, Bowser cites Tipmont Rural Electric Membership Corporation v. Fischer, which states that, “[p]ursuant to Ind. Trial Rule 59(A)(2), a motion to correct error is a prerequisite to appeal when a party seeks to raise a claim that the damage award was either excessive or inadequate.” 697 N.E.2d 83, 89 (Ind. Ct. App. 1998). However, Trial Rule 59(A)(2) provides that a motion to correct error is a prerequisite to appeal a “claim that a jury verdict is excessive or inadequate.” In the present case, Turner is not appealing a jury verdict. Rather she is appealing following a bench trial. And Bowser has not directed us to any authority to demonstrate that Trial Rule 59(A)’s requirement for a motion to correct error applies following bench trials. Indeed, Fischer was an appeal following a jury trial. We will therefore address the merits of Turner's claims.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.