Bersain J. Ozaeta, Defendant v. Adrian S. Perkins, Personal Representative of the Estate of Victoria N. Hagan, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Judges Brown and Weissmann concur.

Case Summary

[1] LGF Restaurant, Inc. d/b/a Chopstick (“Chopstick”) appeals the trial court's denial of its motion to set aside a default judgment that the court had entered in a lawsuit against it by Adrian S. Perkins, Personal Representative of the Estate of Victoria N. Hagan (“Perkins”). Chopstick raises one issue for our review, namely, whether the court erred when it denied Chopstick's motion. We reverse and remand for further proceedings.

Facts and Procedural History

[2] On February 15, 2024, Perkins filed a complaint against Chopstick and Bersain J. Ozaeta and alleged that Ozaeta, who was a delivery driver for Chopstick, had negligently driven his vehicle and crashed into Victoria Hagan, causing her death.¹ Perkins alleged that the accident occurred during the course of Ozaeta's employment. Service of the lawsuit was accepted by Xang Xiao Ming on February 21. On December 1, 2025, Perkins filed a motion for default judgment and asserted that Chopstick had “failed to appear or respond in any way” to Perkins’ complaint. Appellant's App. Vol. 2 at 39. The court granted the motion on December 2.

[3] On January 2, 2026, Chopstick filed a motion to set aside the default judgment pursuant to Indiana Trial Rule 60(B). In that motion, Chopstick argued that Ming had accepted service of the complaint but that Ming “does not speak or read English,” was unable to read or comprehend the mailing, and “inadvertently disregarded” the mailing. Id. at 24. Chopstick also asserted that it had vacated its building in October 2025; that its former general manager, Juhong Wu, had returned in mid-December to collect the final bills and mail; and that Wu had first learned of the lawsuit and default judgment when he opened the mail. Accordingly, Chopstick contended that its failure to respond to Perkins’ complaint was due to excusable neglect and that it had a meritorious defense. In support of its motion, Chopstick attached the affidavit of Wu. Chopstick also filed its answer to Perkins’ complaint. The court denied Chopstick's motion without a hearing. Chopstick then filed a motion to reconsider, which the court again denied without a hearing. This appeal ensued.

Discussion and Decision

[4] Chopstick contends that the trial court erred when it denied Chopstick's motion for relief from judgment. Generally, a grant or denial of equitable relief under Indiana Trial Rule 60 is within the discretion of the trial court and is reviewed for an abuse of that discretion. Baker v. Baker, 50 N.E.3d 401, 403 (Ind. Ct. App. 2016). “However, if a trial court's ruling is strictly based upon a paper record, we will review the ruling de novo because we are in as good a position as the trial court to determine the force and effect of the evidence.” Jahangirizadeh v. Pazouki, 27 N.E.3d 1178, 1181 (Ind. Ct. App. 2015) (citing In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013)). The trial court here ruled solely upon a paper record, and so our review is de novo.

[5] Further, we note that Perkins did not file an appellee's brief. When an appellee does not file a brief, our court will not undertake the burden of developing arguments on that party's behalf. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Rather, we apply “a less stringent standard of review” and may reverse the trial court if the appellant establishes prima facie error. Id. Prima facie “means at first sight, on first appearance, or on the face of it.” Id.

[6] Chopstick contends that it was entitled to relief pursuant to Trial Rule 60(B)(1), which states that “a judgment by default” may be set aside based on a party's “mistake, surprise, or excusable neglect” if the motion is filed within one year of the judgment and the moving party “allege[s] a meritorious claim or defense.” “A motion under Rule 60(B)(1) does not attack the substantive, legal merits of a judgment, but rather addresses the procedural, equitable grounds justifying the relief from the finality of a judgment.” KWD Industrias SA DE CV v. IPM LLC, 129 N.E.3d 276, 281 (Ind. Ct. App. 2019) (citing Kmart v. Englebright, 719 N.E.2d 1249, 1254 (Ind. Ct. App. 1999), trans. denied).

[7] On appeal, Chopstick alleges that the default judgment should be set aside because its “failure to respond had nothing to do with inattention or disregard” but “resulted from a complete breakdown in communication caused by a language barrier[.]” Appellant's Br. at 9. And Chopstick contends that the inability of Ming to understand the complaint constitutes excusable neglect.

[8] “There is no general rule as to what constitutes excusable neglect under Trial Rule 60(B)(1).” Li v. NextGear Capital, Inc., 136 N.E.3d 313, 319 (Ind. Ct. App. 2019). Rather, “[e]ach case must be determined on its particular facts.” Id. The following facts have been held to constitute excusable neglect, mistake, or surprise:

(a) absence of a party's attorney through no fault of party; (b) an agreement made with opposite party, or his attorney; (c) conduct of other persons causing party to be misled or deceived; (d) unavoidable delay in traveling; (e) faulty process, whereby party fails to receive actual notice; (f) fraud, whereby party is prevented from appearing and making a defense; (g) ignorance of the defendant; (h) insanity or infancy; (i) married women deceived or misled by conduct of husbands; (j) sickness of a party, or illness of member of a family.

Kmart, 719 N.E.2d at 1254 (quoting Continental Assurance Co. v. Sickels, 252 N.E.2d 439, 441 (Ind. Ct. App. 1969)) (emphasis added). Further, under Trial Rule 60(B)(1), “excusable neglect includes a breakdown in communication that results in a party's failure to appear.” Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).

[9] Here, we agree with Chopstick that it made a prima facie showing of excusable neglect. In support of its motion to set aside the default judgment, Chopstick attached the affidavit of Wu, who stated that Ming did not read English and could not comprehend the complaint and therefore disregarded it. Wu further affirmed that he learned of the lawsuit when he returned to the premises in midDecember 2025 after the business had closed to obtain the final bills and mail. Then, once Wu, and therefore Chopstick, learned of the lawsuit and default judgment, Chopstick filed its motion for relief from judgment and its answer to Perkins’ complaint on January 2, 2026, the first working day of the new year.

[10] Stated differently, Chopstick was ignorant of the lawsuit and failed to appear because of a breakdown in communication between it and its employee who could not read or speak English. It then promptly responded to the complaint and moved to set aside the default judgment. Based on the specific facts of this case, Chopstick has demonstrated excusable neglect.

[11] However, “to prevail on a Trial Rule 60(B) motion, the petitioner is not only required to show mistake, surprise, or excusable neglect, but also must show that he has a good and meritorious defense to the cause of action.” Li, 136 N.E.3d at 321 (citation modified). “A meritorious defense is one which would lead to a different result if the case was tried upon the merits.” Id. “To establish a meritorious defense, a party need not prove the absolute existence of an undeniable defense.” Id. Rather, a party need only make a prima facie showing of a meritorious defense. Id.

[12] Perkins’ claim against Chopstick was that Ozaeta had driven his car negligently and that Chopstick was liable for Ozaeta's negligence because he had driven his vehicle in the course of his employment with Chopstick. To prevail on a negligence claim, Perkins would be required to show that Ozaeta owed Hagan a duty, that Ozaeta had breached that duty, and that Hagan had been harmed by the breach of duty. See King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003). Further, Perkins would need to demonstrate that Chopstick was vicariously liable for Ozaeta's actions because Chopstick employed Ozaeta and Ozaeta was acting in the course of his employment when the accident happened. See Sony DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171, 1178 (Ind. Ct. App. 2016).

[13] In Chopstick's answer, which it filed with the motion to set aside the default judgment, Chopstick denied that Ozaeta had negligently driven his vehicle. In addition, Chopstick alleged that Hagan was more than fifty percent responsible for the accident, which, pursuant to Indiana's Comparative Fault Act, would preclude Perkins, as her personal representative, from recovering anything from Chopstick. See Ind. Code § 34-51-2-6 (stating that, “the claimant is barred from recovery if the claimant's contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant's damages”). If either claim is correct, the result of the case would be different if it were tried upon the merits because Ozaeta, and by extension Chopstick, would not be liable for the accident if Ozaeta had not driven negligently, and Perkins would not be entitled to recover anything if Hagan was more than fifty percent responsible for the collision. We conclude that Chopstick presented a prima facie showing of a meritorious defense.

Conclusion

[14] On this record, we find that Chopstick has demonstrated grounds for setting aside the default judgment pursuant to Trial Rule 60(B)(1) and has alleged a meritorious defense. Therefore, the trial court abused its discretion when it denied Chopstick's motion to set aside the default judgment. As such, we reverse the trial court's judgment and remand to the trial court for further proceedings.

[15] Reversed and remanded.

FOOTNOTES

1.   Ozaeta was also named as a defendant but does not participate in this appeal.

Bailey, Judge.

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