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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Aug 24 2011, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHRISTOPHER C. ZOELLER Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ROGER L. BURRUS Burrus & Burrus Zionsville, Indiana

IN THE COURT OF APPEALS OF INDIANA
PETER JOHNSON, Appellant-Defendant, vs. KEITH SOVE, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 06A01-1102-SC-73

APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Mark X. Sullivan, Judge Pro Tempore Cause No. 06D02-1007-SC-820

August 24, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-defendant Peter Johnson ("Johnson") appeals the trial court's denial of his motion to correct error following its denial of his motion to set aside a default judgment in favor of appellee-plaintiff Keith Sove ("Sove"). He raises a single issue for our review: whether the trial court abused its discretion when it denied his motion to correct error. We affirm. Facts and Procedural History On July 2, 2010, Sove initiated a small claims action against Johnson seeking $6,000 for the balance of payment due from the sale of an antique map. In his notice of claim, Sove alleged that Johnson had tendered four checks, each in the amount of $1,500, and that all were returned unpaid because the account was closed. The cause was set for a bench trial on August 27, 2010, and service was made on Johnson by the county sheriff. Neither Johnson nor his attorney appeared to defend the action on August 27, and the trial court entered default judgment in favor of Sove for $6,000 plus $89.00 in court costs. On September 2, 2010, Johnson's attorney entered his appearance and requested a continuance.1 Having already entered default judgment in favor of Sove, the trial court denied Johnson's request. On September 10, 2010, Johnson filed a motion to set aside the default judgment which also included an answer to Sove's complaint and a counterclaim. After receiving an
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Johnson alleges that his attorney mailed and faxed his appearance and request for continuance on August 26, 2010, but the copies of these documents in his appendix are not filemarked and he has not produced a copy of the fax. Sove states that he never received these documents and disputes whether they were mailed on August 26, 2010.

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enlargement of time, Sove filed a response to Johnson's motion to set aside the default judgment and a motion to strike Johnson's counterclaim on November 1, 2010. On November 12, 2010, the trial court denied Johnson's motion to set aside default judgment and struck his answer and counterclaim. Johnson then filed a motion to correct error on December 14, 2010. The trial court did not rule on Johnson's motion, and after forty-five days it was deemed denied pursuant to Indiana Trial Rule 53.3. Johnson now appeals. Discussion and Decision2 Standard of Review A trial court has broad discretion when granting or denying a motion to correct error, and we will reverse its decision only when it abuses that discretion. White v. White, 796 N.E.2d 377, 379 (Ind. Ct. App. 2003). An abuse of discretion occurs when the court's decision is against the logic and effect of the facts and circumstances before the court or the reasonable inferences that may be drawn therefrom, or if the trial court has misinterpreted the law. Hawkins v. Cannon, 826 N.E.2d 658, 662 (Ind. Ct. App. 2005), trans. denied. We also consider the standard of review for the underlying ruling. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct. App. 2004). Here, Johnson seeks to set aside the default judgment against him. In general, default judgments are not favored in Indiana, Bedree v. DeGroote, 799 N.E.2d 1167, 1172 (Ind. Ct. App. 2003), trans. denied, but the
Sove requests that we strike the "non-factual allegations" contained in Johnson's brief, referring to Johnson's recitation of various pleadings and the allegations made therein within his Statement of Facts. While we agree with Sove that allegations contained in pleadings are not facts, we deny his request to strike because Johnson has not misstated the record insofar as Johnson did submit various pleadings that contained certain allegations. See Ind. App. R. 42.
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decision to set aside a default judgment is within the sound discretion of the trial court. Sears v. Blubaugh, 613 N.E.2d 468, 469 (Ind. Ct. App. 1993), trans. denied. It is therefore also reviewed for an abuse of discretion. Id. The burden is on the movant to establish grounds for relief. Id. Analysis As a small claims action, this case is governed by the Indiana Small Claims Rules. Ind. Small Claims Rule 1(A). The procedure concerning default in small claims actions is outlined in Indiana Small Claims Rule 10, which states: If the defendant fails to appear at the time and place specified in the notice of claim, or for any continuance thereof, the court may enter a default judgment against him. Before default judgment is entered, the court shall examine the notice of claim and return thereof and make inquiry, under oath, of those present so as to assure the court that: (1) Service of notice of claim was had under such circumstances as to establish a reasonable probability that the defendant received such notice; (2) Within the knowledge of those present, the defendant is not under legal disability and has sufficient understanding to realize the nature and effect of the notice of claim; (3) Either (a) the defendant is not entitled to the protections against default judgments provided by the Servicemembers Civil Relief Act, as amended (the "Act"), 50 U.S.C.

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