Riley, J.
STATEMENT OF THE CASE
Appellant-Defendant, Expert Pool Builders, LLC (EPB), appeals the trial court’s denial of EPB’s motion to correct error following the trial court’s entry of a default judgment in favor of Appellee-Plaintiff, Paul Vangundy (Vangundy).
We dismiss.
ISSUE
EPB presents this court with three issues on appeal, while Vangundy presents one issue on cross-appeal. We find only one issue dispositive, which we restate as: Whether EPB waived his appeal by failing to file a motion to set aside default judgment pursuant to Indiana Trial Rule 60(B).
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EPB’s appeal is entirely premised on arguments steeped in Indiana Trial Rule 60(B)(1) and (8), arguing that the trial court erroneously entered a default judgment against it and now requesting this court to set aside the default judgment based on EPB’s “reasonable understanding that it was waiting on an answer as to whether it would be dismissed by Vangundy.” (Appellant’s Br. p. 20).
In Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983), our supreme court clarified the procedure to be followed by a party in order to preserve the issues in a default judgment for appellate review. Due to an apparent confusion about whether a motion to correct error or a motion to set aside a judgment should be used to contest a default judgment, the court concluded that motions to correct error applied to judgments on the merits, while motions to set aside judgment applied to default judgments….
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Here, after the entry of the default judgment against it, EPB, instead of filing a motion to set aside default judgment pursuant to T.R. 60(B), filed a motion to correct error pursuant to T.R. 59. EPB then filed its notice of appeal following the denial of his motion to correct error, again without filing a motion to set aside default judgment.
In an effort to preserve the issue on appeal, EPB now contends in his reply brief that his response to Vangundy’s motion for default judgment was treated as a T.R. 60(B) motion at the March 24, 2022 hearing, as his response raised various factual issues related to excusable neglect and its meritorious defense. Therefore, requiring EPB to still file a separate motion to set aside the default judgment would amount to judicial inefficiency and redundancy. Disregarding the prematurity of filing a motion to set aside default judgment before the entry of the default judgment, our review of EPB’s response to Vangundy’s motion for default judgment reveals the complete absence of any references or argument with respect to the grounds for a motion to set aside default judgment, as enumerated in T.R. 60(B)(1)-(8). Likewise, during the hearing, the trial court did not receive any evidence or argument with respect to the possible grounds to set aside the default judgment, besides a brief reference to the trial rule by Vangundy’s counsel.
Accordingly, as EPB failed to follow the proper procedure to contest the trial court’s entry of default judgment, as clearly announced in Siebert, EPB failed to preserve the issue and we dismiss his appeal.
CONCLUSION
Based on the foregoing, we conclude that EPB did not properly preserve the issue on appeal by failing to file a T.R. 60(B) motion to set aside the default judgment.
Dismissed.
Bailey, J. concurs
Vaidik, J. dissents with separate opinion
Vaidik, J., dissenting.
I respectfully dissent. In dismissing the appeal, the majority holds that EPB didn’t “preserve” its objection to default judgment because it didn’t file a 60(B) motion in the trial court before appealing. I disagree. As detailed in the majority opinion, EPB opposed Vangundy’s motion for default judgment and was able to present all of its evidence and arguments against default judgment. This opposition preserved EPB’s objection to default judgment, so a 60(B) motion was not required and would have been a redundant waste of time and resources.
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