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Flying J.12/22/1999
FOR PUBLICATION
OPINION - FOR PUBLICATION
SULLIVAN, Judge
Appellant, Flying J, Inc. (Flying J), challenges the trial court's denial of its motion to set aside default judgment.
We reverse and remand.
On July 14, 1996, Johnnie Jeter (Jeter), while patronizing Flying J's convenience store, slipped and fell causing injury. She filed a complaint against Flying J for negligence on July 13, 1998, and served Flying J with the summons and complaint on July 21, 1998. Flying J did not file an answer to her complaint, and on September 15, 1998, Jeter filed a motion for default judgment. On the same date, the trial court granted the motion and set a hearing upon the issue of damages for October 14, 1998.
On October 13, 1998, Flying J filed a motion to set aside default judgment, asserting that a "breakdown in communication" had occurred with his claims adjuster, and that this breakdown constituted excusable neglect. Record at 29.
The events preceding the default were that Jeter's attorney first provided Flying J's adjuster, Theodore Conti of GAB Robbins, Inc. (Conti), with a courtesy copy of the complaint. Conti then sent a copy of the complaint to Flying J and also spoke with Jeter's attorney to advise him that he would need to perfect service through Flying J's agent. Lori Dutson (Dutson) of Flying J instructed Conti to retain the law firm of White and Raub when the suit was filed and it became necessary to file an answer. Conti assumed that Flying J would inform him when it was served with the summons and complaint, and therefore, Conti did not retain the law firm after his conversation with Dutson. Flying J thought it had confirmed with Conti that he would retain counsel immediately without being separately informed when it was served. As a result of this misunderstanding, legal counsel was not obtained to defend Jeter's action until October 5, 1998.
In support of its motion, Flying J presented the affidavit of a Flying J employee who was working at Flying J's convenience store and witnessed Jeter's fall. The employee stated that while wet floor warning signs were posted on the day Jeter fell, the floor was dry when Jeter fell. Also, the employee stated that Jeter appeared intoxicated. On December 18, 1998, the trial court denied Flying J's motion to set aside default judgment.
Upon appeal, Flying J contends that the trial court abused its discretion in concluding that Flying J had failed to demonstrate excusable neglect for not filing an answer to Jeter's complaint. Specifically, Flying J asserts that its breakdown in communication with Conti about whether he would retain legal counsel for it constituted excusable neglect.
Ind. Trial Rule 55(A) authorizes the entry of default judgment for failure to file a pleading. However, Ind. Trial Rule 55(C) allows the judgment to be set aside if grounds under Ind. Trial Rule 60(B) exist. T.R. 60(B) provides that a judgment may be set aside for "mistake, surprise, or excusable neglect." There are no fixed standards "to determine the bounds of `mistake, surprise or excusable neglect.'" Indiana Dept. of Natural Resources v. Van Keppel (1991) Ind.App., 583 N.E.2d 161, 162, trans. denied. Courts must balance the need for efficient administration of justice with the preference for deciding cases on their merits and giving a party its day in court. Id. The decision to grant or deny a motion to set aside default judgment is within the equitable discretion of the trial court, and we will only reverse a trial court's ruling upon review for an abuse of discretion. Whelchel v. Community Hospitals of Indiana, Inc. (1994) Ind.App., 629 N.E.2d 900, 902, trans. d
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