Court of Appeals of Indiana | Opinion 29A02-1502-SC-84 | July 9, 2015 Page 1 of 5

ATTORNEY FOR APPELLANT

Gregory A. Schrage

Church Church Hittle & Antrim

Noblesville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tom Graziani,

Appellant-Defendant,

v.

D&R Construction,

Appellee-Plaintiff.

July 9, 2015

Court of Appeals Case No.

29A02-1502-SC-84

Appeal from the Hamilton Superior 

Court

The Honorable Wayne A. Sturtevant, 

Judge.

Cause No. 29D05-1402-SC-1118

Brown, Judge.
Court of Appeals of Indiana | Opinion 29A02-1502-SC-84 | July 9, 2015 Page 2 of 5

[1] Tom Graziani appeals the denial of his motion to set aside a default judgment 

in favor of D&R Construction. Graziani raises one issue, which we restate as 

whether the trial court abused its discretion in denying his motion. We reverse 

and remand.

Facts and Procedural History

[2] In June 2013, D&R Construction gave Graziani a $1,014 written estimate for 

the removal and replacement of five windows and two nine-foot sliding doors, 

which Graziani had already purchased. Graziani paid D&R the $1,014 in July 

2013, and D&R completed the work in September. In November, D&R sent 

Graziani an invoice for an additional $4,708. When Graziani refused to pay 

the invoice, D&R filed an action against him in small claims court in February 

2014. 

[3] In September 2014, the trial court scheduled a trial for December 8, 2014 at 

3:00 p.m. Graziani’s counsel withdrew from the case in October, but advised 

Graziani in writing that his trial was scheduled for December 8, 2014 at 3:30 

p.m. in Superior Court 5. On December 8, Graziani, who was planning to 

represent himself, arrived at the Hamilton County Courthouse at 3:15 p.m. 

Believing he was fifteen minutes early, he mistakenly checked in at the 

Courthouse’s information desk rather than the court’s office and entered the 

courtroom. 

[4] When court ended for the day, court staff approached Graziani, who explained 

that his trial had been scheduled for 3:30 p.m. Court staff explained that a 
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default judgment had been issued against him at 3:06 p.m. Graziani 

immediately filed a motion to set aside the default judgment wherein he 

explained that his attorney’s letter advised him that trial was scheduled for 3:30 

p.m. Graziani stated that he had a defense to the claim, but did not specifically 

set it forth in the motion. The trial court denied the motion without holding a 

hearing for the following reasons: “[Graziani] did not check in the Court’s 

office prior to the hearing. Matter was set at 3:00 p.m. and heard at 3:06. The 

Court did not issue the letter that [Graziani] relies upon. [Graziani] did not 

state his defense.” Appellant’s Appendix at 8.

[5] Graziani hired counsel, who, in January 2015, filed a motion for relief from 

judgment asking the trial court to reconsider its prior order denying Graziani’s 

motion to set aside the default judgment. In this motion, Graziani set forth four 

defenses. First, he alleged that D&R committed a deceptive act pursuant to 

Indiana Code § 24-5-0.5-3(b)(12) when it provided an estimate, completed the 

work, and issued an invoice where the cost exceeded the original estimate by 

more than ten percent. In addition, D&R did not obtain written permission to 

exceed the estimate by that amount, the total cost for services was more than 

$750, and D&R knew or should have known that the cost would exceed the 

estimate by more than ten percent. See id. Second, Graziani alleged that D&R 

violated Indiana Code § 24-5-11-1, et seq. when it failed to provide him with a 

contract for the home improvements. Third, Graziani alleged that D&R did 

not complete the work properly as evidenced by the many water leaks in his 

home. Lastly, D&R has not obtained counsel despite being told by the trial 
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court that Indiana Small Claims Rule 8(C) requires a corporation to be 

represented by counsel if the controversy exceeds $500. The trial court denied 

this motion without a hearing as well. Graziani appeals.

Discussion

[6] At the outset, we note that D&R Construction has failed to file an appellee’s 

brief. In such a case, we need not undertake the burden of developing 

arguments for the appellee. Painter v. Painter, 773 N.E.2d 281, 282 (Ind. Ct. 

App. 2002). Instead, we apply a less stringent standard of review and may 

reverse the trial court if the appellant establishes prima facie error. Id. Prima 

facie is defined as “at first sight, on first appearance, or on the face of it.” Id.

[7] The issue is whether the trial court abused its discretion in denying Graziani’s 

motion to set aside a default judgment. A trial court’s refusal to set aside a 

default judgment is entitled to deference and will be reviewed for an abuse of 

discretion. State Farm Mut. Auto. Ins. Co. v. Hughes, 808 N.E.2d 112, 116 (Ind. 

Ct. App. 2004). The trial court should use its discretion to do what is “just” in 

light of the unique facts of each case and the disfavor in which default 

judgments are held. Id. A default judgment is an extreme remedy and is 

available only where a party failed to defend or prosecute a suit. Id. It is not a 

trap to catch unsuspecting litigants. Id.

[8] As a small claims court action, this case is governed by the Indiana Small 

Claims Rules. Ind. Small Claims Rule 1(A). Small Claims Rule 10(C) provides 

guidance on setting aside default judgments and provides that “[u]pon good 
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cause shown the court may, within one year after entering its default judgment, 

vacate such judgment and reschedule the hearing of the original claim.” The 

requirement of “good cause shown” is a broad concept subject to the trial 

court’s sound discretion. Potts v. Castillo, 460 N.E.2d 996, 1000 (Ind. Ct. App. 

1984). It is a concept we liberally apply to reviewing default judgments. Id. at 

999.

[9] Here, our review of the evidence reveals that, although the trial began at 3:00 

p.m. on December 8, 2014, Graziani’s attorney advised Graziani in writing that 

it was not scheduled to begin until 3:30 p.m. Graziani arrived at the hearing 

nine minutes after a default judgment was entered against him. He filed a 

motion to set aside the default judgment that same day. 

[10] Based upon these facts, and in light of the material issues of fact accompanying 

the allegations, the short length of the delay, the lack of prejudice to D&R by 

the delay, and the defenses raised by Graziani in his motion for relief from 

judgment, we conclude that Graziani has shown good cause for his failure to 

attend his 3:00 trial.

Conclusion

[11] For the foregoing reasons, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion.

[12] Reversed and remanded. 

Crone, J., and Pyle, J., concur.