Tardy defendant gets a do-over from the COA

July 9, 2015

A homeowner who arrived at the courthouse nine minutes after a judgment was entered against him will still get to have his day in court.

Tom Graziani was sued after he refused to pay his contractor an additional $4,708 for work that had been estimated at $1,014. Graziani paid the estimated bill prior to the completion of the work. His attorney withdrew from the case but did send Graziani a letter stating the trial was scheduled for Dec. 8, 2014, at 3:30 p.m. in Hamilton Superior Court 5.

Choosing to represent himself, Graziani arrived at the courthouse at 3:15 p.m. However, the trial had been scheduled for 3 p.m. and a default judgment was entered in favor of the contractor.

Graziani immediately filed a motion to set aside the default judgment. The trial court denied it, pointing out Graziani did not confirm the time with the court and instead relied on a letter not issued by the court.

The Indiana Court of Appeals reversed the judgment and remanded for further proceedings. In addition to confirming Graziani’s attorney had given him the wrong time, the panel noted he arrived early for what he thought was the hearing time and he filed a motion against the default judgment the same day.

The case is Tom Graziani v. D&R Construction, 29A02-1502-SC-84.



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