Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020 Page 1 of 7

ATTORNEYS FOR APPELLANT

Robert D. King, Jr.

David R. Thompson

The Law Office of 

 Robert D. King, Jr. P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Thomas E. Rosta

Metzger Rosta LLP

Noblesville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian Denny,

Appellant-Plaintiff,

v.

Nathan Vanoy,

Appellee-Defendant

May 18, 2020

Court of Appeals Case No.

19A-CT-2576

Appeal from the

Marion Superior Court

The Honorable

Marc Rothenberg, Judge

The Honorable

Burnett Caudill, Magistrate

Trial Court Cause No.

49D07-1806-CT-025033

Vaidik, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020 Page 2 of 7

Case Summary

[1] Brian Denny obtained a default judgment against Nathan Vanoy. Vanoy later 

moved to set aside the default judgment based on excusable neglect, and the 

trial court granted his motion. Denny now appeals.

[2] To set aside a default judgment based on excusable neglect, the movant must

establish the grounds for relief by affidavit or other evidence. Here, Vanoy 

introduced no affidavit, testimony of witnesses, or other evidence to establish 

excusable neglect. We therefore reverse the trial court’s grant of Vanoy’s 

motion to set aside and remand this case to the trial court. 

Facts and Procedural History

[3] On February 26, 2017, Vanoy ran a red light and struck a car driven by Denny.

Tr. p. 4. On June 25, 2018, Denny filed a complaint against Vanoy in Marion 

Superior Court. Vanoy was served on September 14, 2018. Id. at 2.

[4] On February 25, 2019, over five months after Vanoy was served, an adjuster 

from GEICO (Vanoy’s insurer) called Denny’s counsel “completely out of the 

blue” regarding the suit filed against Vanoy. Id. at 5. Denny’s counsel 

confirmed that suit had been filed and that service had been perfected on 

September 14, 2018. That same day, Denny’s counsel emailed the GEICO

adjuster a copy of the complaint, crash report, and proof of service. Appellant’s 

App. Vol. II p. 38.
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[5] Two weeks later, on March 11, Denny moved for default judgment against 

Vanoy, as no one had appeared for Vanoy since the phone call. The trial court 

granted the motion on March 19 and scheduled a damages hearing for May 15. 

On May 14, Vanoy, represented by an attorney at Metzger Rosta LLP, moved 

to set aside the default judgment based on excusable neglect under Indiana Trial 

Rule 60(B)(1). The motion to set aside alleges:

5. The claims examiner at GEICO Direct has stated that she 

spoke with an individual at Metzger Rosta LLP on or about 

March 1, 2019, regarding the lawsuit and a need to appear for the 

Defendant in this case, but no documentation was forwarded to 

counsel’s office at that time. The undersigned counsel was then 

on vacation and did not return to Indiana until approximately 

March 18, 2019.

6. According to the online docket, counsel for Plaintiff filed a 

motion for default judgment in this case on or about March 12, 

2019, or only about two weeks after sending the lawsuit 

documentation to the claims examiner at GEICO. A copy of the 

motion for default judgment was not sent to the GEICO 

examiner by counsel.

7. On or about April 4, 2019, the GEICO Direct adjuster 

contacted the undersigned counsel and inquired into the status of 

the lawsuit, but counsel did not recall any prior conversation

regarding this case and did not have a copy of the applicable

lawsuit until it was then sent to him on April 4, 2019. 

8. The undersigned counsel then checked the online docket and 

learned that a motion for default judgment was filed by counsel 

for Plaintiff in this case and that the case has been scheduled for a 

damages hearing on May 15, 2019.
Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020 Page 4 of 7

Id. at 23. Vanoy argued that excusable neglect existed:

In this case, it is clear that (a) neither Vanoy nor Plaintiff sent a 

copy of the lawsuit to GEICO Direct until late in February 2019; 

(b) counsel filed his motion for default only two (2) weeks after 

sending notice of the lawsuit and service on GEICO Direct; and 

(c) there is some confusion as to GEICO Direct’s contact with 

the undersigned counsel and/or his office to assign the file to 

counsel in this matter in a timely manner after receipt of the 

documents from Plaintiff’s counsel, as the adjuster contends she 

spoke to a member of counsel’s firm on March 1, 2019, or only 

four days after receipt of the documents from Plaintiff’s counsel. 

Id. at 25. Vanoy attached an affidavit from himself only. The affidavit, however,

does not address excusable neglect; rather, it alleges that Vanoy had a 

meritorious defense because he believed Denny “was exceeding the speed limit 

at the time of the accident. It is also possible that he failed to take proper 

control of his vehicle to avoid the accident or to take proper precautions to 

avoid a collision.” Id. at 27.

[6] Denny filed a response, arguing that Vanoy presented no admissible evidence of 

excusable neglect:

7. It is important to note that there is no admissible evidence 

before this Court that a Geico claims examiner contacted defense 

counsel on March 1, 2019, regarding this lawsuit and a need to

appear. “It is axiomatic that the arguments of [Defendant’s] 

counsel are not evidence.” What’s more, the statement 

attributed to the unidentified claims examiner is hearsay. No 

Geico employee, or any other person, has submitted an affidavit 

stating under oath that a phone call was placed to defense 

counsel’s firm on March 1, 2019. Defendant has not produced 
Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020 Page 5 of 7

any phone records evidencing a call from Geico to defense 

counsel’s firm. Defense counsel concedes in the motion to set 

aside that defense counsel does not recall any such conversation. 

And, Defendant has not provided an affidavit from anyone else 

in defense counsel’s firm stating that another person in the firm 

spoke with a Geico claims examiner regarding this case.

8. Given the complete lack of admissible evidence, this Court 

cannot make a factual finding that Geico placed a call to defense 

counsel’s firm on March 1, 2019.

9. Thus, the evidence before this Court is that Defendant was

properly served with the complaint and summons on September 

14, 2018; that despite this proper service, Defendant did nothing 

to appear and defend[] this case; and that Geico also did nothing 

to defend this case, despite Plaintiff sending a courtesy copy of 

the complaint to Geico.

Id. at 30-31.

[7] In August 2019, the trial court held a hearing on Vanoy’s motion to set aside. 

Vanoy presented no evidence at the hearing; rather, he presented only 

argument. See Tr. pp. 2-5. Thereafter, the trial court granted Vanoy’s motion to 

set aside.

[8] Denny now appeals.

Discussion and Decision

[9] Denny appeals the trial court’s grant of Vanoy’s motion to set aside the default 

judgment. A default judgment may be set aside because of mistake, surprise, or 
Court of Appeals of Indiana | Opinion 19A-CT-2576 | May 18, 2020 Page 6 of 7

excusable neglect if the motion to set aside is filed not more than one year after 

the judgment was entered and the moving party also alleges a meritorious claim 

or defense. Ind. Trial Rule 60(B)(1). The burden is on the movant to establish

the grounds for relief “by affidavit or other evidence.” Southside Auto. of 

Anderson, Inc. v. Smith, 114 N.E.3d 551, 554-55 (Ind. Ct. App. 2018); see also

Bennett v. Andry, 647 N.E.2d 28, 35 (Ind. Ct. App. 1995) (stating that to obtain 

relief under Trial Rule 60(B), the movant must introduce “some admissible 

evidence which may be in the form of an affidavit, testimony of witnesses, or 

other evidence obtained through discovery”); Bross v. Mobile Home Estates, Inc., 

466 N.E.2d 467, 469 (Ind. Ct. App. 1984) (“The catalyst needed to obtain the 

proper relief is some admissible evidence which may be in the form of an 

affidavit, testimony of witnesses, or other evidence obtained through 

discovery.”).

[10] An appellate court reviews a trial court’s decision to set aside a default 

judgment for abuse of discretion, resolving any doubt as to the propriety of 

default judgment in favor of the defaulted party. Wamsley v. Tree City Vill., 108 

N.E.3d 334, 335-36 (Ind. 2018). 

[11] Denny contends that Vanoy failed to prove excusable neglect by affidavit,

testimony of witnesses, or other evidence. Vanoy doesn’t dispute this; rather, he 

says he presented “argument[]” that there was excusable neglect due to “a 

breakdown of communication” between GEICO and Metzger Rosta LLP.

Appellee’s Br. p. 5. 
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[12] But argument isn’t enough. The basis of Vanoy’s claim that excusable neglect 

existed is that a GEICO adjuster “contends she spoke to a member of counsel’s 

firm on March 1, 2019.” Appellant’s App. Vol. II p. 25; see also Tr. p. 3

(Vanoy’s counsel stating that GEICO “allegedly contacted” his firm on March 

1, 2019). Vanoy, however, presented no affidavit or testimony from this

adjuster. With no evidence to show that the adjuster called Metzger Rosta LLP 

on March 1, 2019, there is nothing to support Vanoy’s claim that there was “a 

breakdown of communication.” This then leaves evidence that Vanoy was 

served on September 14, 2018; that despite this service, Vanoy did not appear 

and defend the suit; and that GEICO did nothing to defend the suit, despite 

Denny’s counsel sending the complaint and related documents to GEICO. See

Appellant’s Br. p. 12 (noting that “Vanoy and his counsel strategically omit[ted]

in [Vanoy’s] affidavit any explanation for why the lawsuit went unaddressed 

from September 1[4], 2018 through March 11, 2019, a period of [almost] six 

months”). This is inattention, not excusable neglect. See Smith v. Johnston, 711 

N.E.2d 1259, 1262 (Ind. 1999) (“The judicial system simply cannot allow its 

processes to be stymied by simple inattention.”). The trial court abused its 

discretion in granting Vanoy’s motion to set aside the default judgment.

[13] Reversed and remanded.

May, J., and Robb, J., concur.