FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

TODD A. WOODMANSEE W. RUSSELL SIPES

Indianapolis, Indiana The Sipes Law Firm

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DAN WEAVER, )

)

Appellant - Defendant, )

)

vs. ) No. 49A05-1309-CT-448

)

GEORGE NIEDERKORN, )

)

Appellee - Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Jr., Judge

Cause No. 49D05-1210-CT-41167

May 9, 2014

OPINION - FOR PUBLICATION

FRIEDLANDER, Judge
2

Dan Weaver appeals from the trial court’s denial of his motion to set aside a default 

judgment entered against him in favor of George Niederkorn. Weaver raises one issue, 

which we restate as whether the trial court abused its discretion in denying his motion. 

We affirm.

On October 23, 2012, Niederkorn filed a complaint against Weaver in Marion 

Superior Court seeking damages for defamation, invasion of privacy, and intentional 

infliction of emotional distress. On the same date, Niederkorn’s attorney served written 

discovery and notice of a deposition on Weaver by first class mail. The trial court clerk 

attempted to serve a summons on Weaver by certified mail, but the summons was returned 

unclaimed. On October 27, 2012, Niederkorn personally served a copy of the complaint and 

summons on Weaver at his residence, which is across the hall from Niederkorn’s residence in 

a condominium complex. 

Weaver failed to file a timely responsive pleading, and Niederkorn filed a motion for 

the entry of default judgment on December 4, 2012. On the same date, Niederkorn’s attorney 

served a copy of the motion on Weaver by first class mail. On December 11, 2012, the trial 

court entered an order granting Niederkorn’s motion for the entry of default judgment. On 

the same date, the trial court set an evidentiary hearing for February 19, 2012 to determine 

costs and damages. 

Approximately one week later, the trial court received a letter from Weaver dated 

December 10, 2012 (one day before the entry of default judgment). In the letter, Weaver 

claimed he had received a letter and a copy of the motion for default judgment on December 
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6, 2012, but that he had not received any paperwork regarding the lawsuit prior to that date 

and had no idea what the lawsuit was about. Weaver requested that the trial court take no 

action on the motion for default judgment until February 13, 2013 in order to allow Weaver 

to obtain counsel. 

On the date of the February 19, 2013 evidentiary hearing, the trial court received 

another letter from Weaver. In the letter, which was dated February 11, 2013, Weaver 

requested a continuance of the hearing due to a work conflict and his inability to find an 

attorney. When Niederkorn and his attorney appeared for the scheduled hearing, the trial 

court advised them of Weaver’s letter. Although Weaver failed to appear, the trial court 

nevertheless granted his request for a continuance and reset the hearing for March 19, 2013.

Niederkorn and his attorney appeared for the March 19, 2013 hearing. Weaver again 

failed to appear. The trial court noted that it had heard nothing from Weaver since the letter 

received on February 19, and that it had specified in its previous order that no further 

continuances would be granted. The court proceeded with the hearing. At the conclusion of 

the evidence, the trial court stated that it would enter judgment in Niederkorn’s favor in the 

amount of $40,336.18. 

After the evidentiary hearing, the trial court received a letter from Weaver dated 

March 13, 2013, in which he asked for a continuance of the evidentiary hearing because he 

was on call for jury duty in Marion County on the date of the hearing. After confirming that 

Weaver had not been required to report for jury duty on the date of the evidentiary hearing, 
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and upon hearing nothing further from Weaver, the trial court entered judgment against him 

in the amount of $40,336.18 on April 1, 2013. 

An attorney entered an appearance on Weaver’s behalf on April 3, 2013. A month 

later, Weaver filed a motion to set aside the default judgment. At a hearing on the motion, 

the trial court noted on the record that it had verified that Weaver had not been called for jury 

duty on the date of the evidentiary hearing. The court further noted that it believed that 

Weaver “knew what was going on” and that he had not made a showing of excusable neglect 

or alleged a meritorious defense. Transcript at 37. Accordingly, the trial court denied the 

motion. Weaver then filed a motion to correct error, which was denied on August 14, 2013. 

Weaver now appeals.

On appeal, Weaver argues that the trial court abused its discretion in denying his T.R. 

60(B) motion for relief from judgment. A motion for relief from judgment under T.R. 60(B) 

is entrusted to the sound discretion of the trial court; accordingly, we may neither reweigh the 

evidence nor substitute our judgment for that of the trial court. Centex Home Equity Corp. v. 

Robinson, 776 N.E.2d 935 (Ind. Ct. App. 2002), trans. denied. “When considering a Trial 

Rule 60(B) motion, a trial court must weigh the alleged inequity that would result by 

allowing a judgment to stand against the interests of the prevailing party in its judgment, as 

well as those of society at large in the finality of litigation in general.” Id. at 942. We will 

reverse the trial court’s ruling on a T.R. 60(B) motion only if its decision is squarely opposed 

to the logic and effect of the facts and circumstances. Id.

T.R. 60(B) provides, in relevant part, as follows:
5

On motion and upon such terms as are just the court may relieve a party or his 

legal representative from a judgment, including a judgment by default, for the 

following reasons:

(1) mistake, surprise, or excusable neglect; . . .

(6) the judgment is void; . . .

. . . A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege 

a meritorious claim or defense. . . .

The grounds upon which Weaver sought relief from the default judgment are unclear. 

On appeal, he does not make explicit reference to any specific subsection of T.R. 60(B), but 

claims that “there is clearly evidence of excusable neglect.” Appellant’s Brief at 3. Weaver 

also seems to assert that he was not adequately served—a claim more properly brought under 

T.R. 60(B)(6). See Yoder v. Colonial Nat. Mortg., 920 N.E.2d 798, 801 (Ind. Ct. App. 2010) 

(explaining that “[i]f service of process is inadequate, the trial court does not acquire 

personal jurisdiction over a party, and any default judgment rendered without personal 

jurisdiction is void” (quoting Swiggett Lumber Constr. Co. v. Quandt, 806 N.E.2d 334, 336 

(Ind. Ct. App. 2004)). Weaver makes no argument, however, that the default judgment was 

void or that the trial court lacked personal jurisdiction. Weaver’s T.R. 60(B) motion and 

motion to correct error are similarly vague. Nevertheless, whether we consider Weaver’s 

motion under T.R. 60(B)(1) or (6), we conclude that he has not established reversible error.

To the extent Weaver argues that he was entitled to relief from the default judgment 

pursuant to T.R. 60(B)(6) due to lack of adequate service, we note that Weaver has cited no 

authority for the proposition that Niederkorn’s personal service upon him at his residence 

was insufficient to confer personal jurisdiction. Indeed, Weaver does not discuss the concept 
6

of personal jurisdiction at all, nor does he cite the provisions of the Indiana Trial Rules 

relating to service of process. As this court has explained, “[w]e will not become an 

advocate for a party, and we will not address arguments that are either inappropriate, too 

poorly developed, or improperly expressed to be understood.” Lasater v. Lasater, 809 

N.E.2d 380, 389 (Ind. Ct. App. 2004). Accordingly, any argument that the default judgment 

was void for lack of personal jurisdiction due to inadequate service of process is waived for 

failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8) (requiring that 

contentions in appellant’s brief be supported by cogent reasoning and citations to relevant 

authority); Price v. Review Bd. of Ind. Dept. of Workforce Dev., 2 N.E.3d 13 (Ind. Ct. App. 

2013) (noting that failure to present cogent argument or citation to authority constitutes 

waiver of an issue).

Turning our attention to whether the default judgment should have been set aside 

pursuant to T.R. 60(B)(1) based on excusable neglect, we note that there are no fixed rules 

for determining what constitutes excusable neglect. Coslett v. Weddle Bros. Constr. Co., 798 

N.E.2d 859 (Ind. 2003). “Though the trial court should do what is ‘just’ in light of the facts 

of individual cases, that discretion should be exercised in light of the disfavor in which 

default judgments are held.” Id. at 861. 

Weaver’s argument concerning excusable neglect is based on his assertion that he was 

unaware of the lawsuit until after the entry of default judgment.1 Specifically, Weaver states 

 

1 By his own admission, Weaver became aware of the proceedings shortly before the entry of default judgment. 

In a letter sent to the trial court, Weaver acknowledged receiving Niederkorn’s motion for the entry of default 

judgment on December 6, 2012, five days before the trial court entered default judgment. 
7

that Niederkorn’s sworn statement, set forth in an affidavit attached to his motion for default 

judgment, that he personally served Weaver at his residence with a copy of the summons and 

complaint was not credible.2 Weaver asserts that the trial court should have instead believed 

his testimony that he was unaware of the lawsuit until he received a copy of the motion for 

default judgment. This is nothing more than a request to reweigh the evidence and judge the 

credibility of witnesses, which we will not do on appeal. See Washington v. Allison, 593 

N.E.2d 1273 (Ind. Ct. App. 1992) (noting that as the exclusive judge of the weight of the 

evidence and credibility of witnesses, the trial court was not bound to credit the defaulted 

party’s self-serving testimony denying notice of the lawsuit). The trial court stated on the 

record that it believed Weaver “knew what was going on.” Transcript at 37. We will not 

second-guess the trial court’s factual determinations on appeal. Because we conclude that 

the trial court’s finding that Weaver failed to establish excusable neglect was not an abuse of 

discretion, we need not consider whether Weaver alleged a meritorious defense. 

Judgment affirmed. 

MATHIAS, J., and PYLE, J., concur.

 

2 We note that the trial court took judicial notice of its file, which included Niederkorn’s affidavit, at the 

hearing on the motion to set aside the default judgment.