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A pool building company’s failure to timely respond to a customer’s complaint justified a trial court’s order to grant a motion for default judgment in favor of the St. Joseph County man, the Indiana Supreme Court affirmed Tuesday.
According to court records, Expert Pool Builders LLC employee Guiseppe Borracci sold Paul Vangundy a pool through an October 2020 contract. However, the contract identified only “Giuseppe [sic] Borracci aka IPOOLS UNLIMITE[D]” as the pool contractor.
Expert Pool said it was unaware of the transaction.
A few days after the transaction, Expert Pool fired Borracci.
In March 2021, Vangundy asked Expert Pool about the timeline for his pool. He was informed that Expert Pool no longer employed Borracci, had no affiliation with IPOOLS Unlimited and did not have a contract with Vangundy.
Vangundy then sued Borracci, IPOOLS Unlimited and Expert Pool, alleging breach of contract, unjust enrichment, violations of the Indiana Deceptive Consumer Sales Act, fraud, negligence and liability through agency.
When all defendants failed to respond, Vangundy moved for default judgment. A few months later, the St. Joseph Superior Court granted his motion.
Then, a few weeks later, Expert Pool moved to set aside the default judgment based on improper service. The trial court granted the motion and gave Expert Pool until February 2022 to respond.
Expert Pool failed to respond by the deadline, so Vangundy again moved for default judgment. Expert Pool opposed the motion for default judgment on the same day and moved to dismiss Vangundy’s complaint two days later.
Expert Pool’s counsel claimed that the parties agreed the company could delay its response until after Vangundy and his counsel had an “opportunity to confer … after [the potential] dismissal of [Expert Pool].”
Vangundy later filed his response stating the parties never agreed to extend the responsive pleading deadline. His counsel also submitted her law firm’s call records, her personal call records and an affidavit denying Expert Pool’s claims as well as a transcript of a voicemail from Expert Pool’s counsel.
In the voicemail, Expert Pool’s counsel stated that it wanted to touch base on where Vangundy stood so they could figure out their next steps. While Vangundy’s counsel returned the missed phone call and left a voicemail, she never heard back.
The trial court held a hearing on the motions, and while Vangundy’s counsel submitted call records and an affidavit denying Expert Pool’s allegations, Expert Pool’s counsel failed to present any evidence to support his claims.
The trial court ultimately granted Vangundy’s second motion for default judgment and found that the evidence reflected that the parties never agreed to a deadline extension, and that Expert Pool chose not to respond to Vangundy’s complaint.
Expert Pool then appealed.
A split Court of Appeals of Indiana dismissed the appeal, concluding Expert Pool had to first file a Rule 60(B) motion to set aside the default judgment before pursuing an appeal.
Judge Nancy Vaidik dissented from the January 2023 opinion, disagreeing that a Rule 60(B) motion was necessary because Expert Pool opposed the motion for default judgment and filed a motion to correct error.
The Indiana Supreme Court granted transfer affirmed the appellate court’s dismissal.
On appeal, the high court first considered whether Expert Pool preserved its challenge to set aside the judgment before pursuing its appeal. It ultimately found that expert Pool was not required to file a Rule 60(B) motion to preserve its right to appeal.
“When — as is usually the case and was the case in (Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983)) — a default judgment is entered before the defendant has made any argument in opposition, the only remaining vehicle for the defendant to make an argument in the trial court is a Trial Rule 60(B) motion to set aside the judgment,” Justice Derek Molter wrote. “But when a defendant has presented its argument opposing default judgment before judgment is entered, there is no need to file a post‐judgment motion. After all, efficient judicial administration underlies the general appellate‐preservation rules, and requiring parties to keep futilely reasserting arguments undermines efficiency.”
The second issue the court addressed was whether the trial court exceeded its discretion by entering a default judgment.
“No doubt this is a close case because the prejudice to Vangundy appears relatively minimal, and had the trial judge denied the motion for default judgment, we likely would have affirmed that decision too,” Molter wrote. “But the trial court’s decision turns on the sort of credibility assessments, factual determinations, and equitable balancing to which we must defer. Nothing in the trial court’s decision is unlawful, illogical, or unreasonable, and the default judgment did not come at the expense of professionalism, civility, or common courtesy.”
Thus, the trial court did not exceed its discretion by entering default judgment, the high court concluded.
Chief Justice Loretta Rush and Justices Mark Massa, Geoffery Slaughter and Christopher Goff concurred in Expert Pool Builders, LLC v. Paul Vangundy, 23S‐PL‐171.
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