Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any
action in reliance upon this Opinion until it is certified.
IN THE
Court of Appeals of Indiana
FILED
Christopher Payton,
Oct 15 2026, 9:03 am
Appellant-Plaintiff CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Derek Fell, in his official capacity as Sheriff of Vigo County,
Appellee-Defendant
October 15, 2026
Court of Appeals Case No.
26A-CT-118
Appeal from the Vigo Superior Court
The Honorable Robert A. Pell, Special Judge
Trial Court Cause No.
84D06-2409-CT-6418
Opinion by Judge Pyle
Judges May and Scheele concur.
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 1 of 14
Pyle, Judge.
Statement of the Case
[1] Christopher Payton (“Payton”) appeals the trial court’s order granting a motion
to set aside a default judgment filed by Derek Fell in his official capacity as the
Vigo County Sheriff (“Sheriff Fell”). Payton argues that the trial court abused
its discretion when it granted Sheriff Fell’s motion to set aside the default
judgment. Concluding that the trial court did not abuse its discretion, we affirm
the trial court’s judgment.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it granted
Sheriff Fell’s motion to set aside the default judgment.
Facts1
1
At the outset, we note that both the Appellant’s Statement of Facts and the Appellee’s Statement of Facts
are numbered and are not in narrative form as required by Indiana Appellate Rules 46(A)(6)(c) and 46(B).
We caution both parties’ attorneys to comply with the appellate rules in future appeals. Failure to follow the
appellate rules may result in waiver of an issue on appeal. See Vandenburgh v. Vandenburgh, 916 N.E.2d 723,
729 (Ind. Ct. App. 2009) (explaining that “[a]lthough the failure to comply with the appellate rules does not
necessarily result in waiver of an issue, it is appropriate where noncompliance impedes our review.”).
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 2 of 14 [3] In March 2023, John Plasse was the Vigo County Sheriff (“Sheriff Plasse”), and
Sheriff Fell was the chief of operations for the Vigo County Sheriff’s
Department. On March 18, 2023, law enforcement officers arrested Payton and
transported him to the Vigo County Jail. While he was being placed in a cell,
Payton was involved in an incident with several correctional officers (“the
March 2023 incident”). During this incident, one of the correctional officers
used a Conducted Energy Device (“a CED”) on Payton.
[4] Sixteen months later, in July 2024, Sheriff Plasse died from cancer. Although
Sheriff Plasse had been ill for several months, he had continued to work and
had just been in the office less than a week before his death. Sheriff Plasse’s
death was “traumatic” for the sheriff’s department employees because he had
passed away so quickly. (Tr. Vol. 2 at 39). In August 2024, three weeks after
Sheriff Plasse had died, Sheriff Fell was appointed as the Vigo County Sheriff.
[5] During the months following Sheriff Plasse’s death, the sheriff’s department
office was “chaotic[,]” and its employees experienced a “very difficult transition
period[.]” (Tr. Vol. 2 at 20, 39). Although Sheriff Fell allowed Sheriff Plasse’s
family members to go through Sheriff Plasse’s office several times to gather his
personal belongings, Sheriff Fell did not allow anyone else to enter Sheriff
Plasse’s office for a period of time. In addition, Sheriff Fell did not initially feel
comfortable moving into Sheriff Plasse’s office. When it eventually came time
for Sheriff Fell to move into Sheriff Plasse’s office in late September or early
October 2024, it was emotionally difficult for him to do so because of the close
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 3 of 14
relationship that he had shared with Sheriff Plasse. To ease his transition into
Sheriff Plasse’s office, Sheriff Fell had the office painted and moved the desk.
[6] It was during this chaotic time, in September 2024, that Payton filed a
complaint for damages against Sheriff Plasse, in his official capacity as the Vigo
County Sheriff, and unnamed correctional officers. Realizing his mistake in
identifying the Vigo County Sheriff, three days later, Payton filed an amended
complaint against Sheriff Fell, in his official capacity as the Vigo County
Sheriff, and unnamed correctional officers.
[7] In the complaint, Payton alleged that, during the March 2023 incident, his
“federal and state constitutional rights as well as his rights pursuant to Indiana
state [had been] violated when [he] [had been] subjected to battery and use of
excessive force.” (App. Vol. 2 at 13). Specifically, Payton alleged that he had
told the correctional officers “that he was actively experiencing a mental health
situation.” (App. Vol. 2 at 14). However, according to Payton, the correctional
officers had not provided him with any mental health assistance. Rather,
Payton alleged that the correctional officers had placed him in an isolated jail
cell, attempted to restrain him with handcuffs, “slammed” him to the ground
with such force that it caused him to suffer serious injuries, and “tasered . . .
[him] several times while [he was] restrained in handcuffs.” (App. Vol. 2 at 15).
Payton further alleged that Sheriff Fell had “permitted a practice and/or custom
of the use of unnecessary and excessive force by jail officers against jail
inmates.” (App. Vol. 2 at 16).
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 4 of 14 [8] Payton sent the amended complaint via certified mail to Sheriff Fell at the
sheriff’s department. Administrative Assistant Melissa Scott (“AA Scott”)
received and signed for the amended complaint on September 30, 2024.
However, Sheriff Fell did not file a responsive pleading, and, in October 2024,
Payton filed a motion for a default judgment.
[9] In February 2025, following the recusal of the original trial court judge and the
appointment of a special judge, Payton filed a renewed motion for a default
judgment. Two weeks later, the trial court granted Payton’s motion and
entered a default judgment against Sheriff Fell. The trial court also scheduled a
May 2025 pretrial conference for a June 2025 jury trial to determine Payton’s
damages.
[10] The first time that Sheriff Fell, who had worked at the sheriff’s department in
various roles for twenty-three years, learned about the case was when he
received the default judgment order in March 2025. Typically, when Sheriff
Fell receives a complaint in which he is named as a defendant, he scans the
complaint to his computer and emails it to the sheriff’s department’s attorney,
the county attorney, and the county’s insurance agent. Sheriff Fell searched his
computer and did not find Payton’s amended complaint. Thereafter, Sheriff
Fell spoke to the administrative assistants, the business manager, the jail
commander, the jail matron, two sheriff’s department chiefs, and other sheriff’s
department employees to determine if they had seen Payton’s amended
complaint or if they knew anything about the case. However, none of the
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 5 of 14
employees had “information, or documentation or knowledge about what may
have happened with” it. (Tr. Vol. 2 at 15).
[11] In March 2025, Sheriff Fell’s counsel entered an appearance and filed a motion
to continue the May 2025 pretrial conference. In May 2025, Sheriff Fell filed a
motion to set aside the default judgment.
[12] The trial court heard the facts as set forth above during an October 2025
hearing. In addition, AA Scott testified and acknowledged that she had signed
the certified mail receipt for the amended complaint. She explained that
administrative assistants are typically especially careful with certified mail and
that they do not open mail addressed to Sheriff Fell. In addition, AA Scott
testified that if the sheriff’s door was closed, she would put the sheriff’s mail in
his mailbox and that if the sheriff’s door was open, she would put his mail on
his desk. AA Scott further testified that she did not know what had happened
to Payton’s amended complaint.
[13] In addition, Sheriff Fell testified that no one in the sheriff’s department knew
what had happened to Payton’s amended complaint. When asked what he
believed had happened to the amended complaint, Sheriff Fell responded as
follows:
I don’t question the fact that it was received by, our
Administrative Assistant Ms. Scott, I mean she signed for it, I
don’t question that at all. . . . But I think during the transition,
I’m not making excuses just reasoning. I think during the
transition somehow it got lost in the shuffle, whether it was
placed, in Sheriff Plasse’s office or, mailboxes or, got sent to the
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 6 of 14
jail or wrong location or whatever it might have been, I . . . can’t,
I’d love to be able to sit here and say I know what happened to
that, to . . . the mail. I . . . can’t say that cause I don’t know.
(Tr. Vol. 2 at 22).
[14] Lastly, Vigo County Jail Commander and Sheriff’s Department Deputy Charles
Funk (“Deputy Funk”) testified that he had not received Payton’s amended
complaint. He further testified about the events that had transpired during the
March 2023 incident and provided the facts in support of Sheriff Fell’s alleged
meritorious defense. Specifically, Deputy Funk testified that before Payton had
arrived at the jail, correctional officers had received a dispatch that Payton was
being combative and that the arresting officer needed additional help.
According to Deputy Funk, when Payton had arrived at the jail, Payton had
been referred to the medical department because he had been acting erratically
and had told law enforcement officers that he had ingested methamphetamine
and K2. According to Deputy Funk, during the booking process, Payton had
stated that he wanted to kill himself and that he wanted “to swallow his tongue
and die.” (Tr. Vol. 2 at 51). In addition, Deputy Funk testified that based upon
Payton’s drug use, erratic behavior, and suicidal statements, correctional
officers had placed him in restraints and taken him to a padded cell for his own
safety. According to Deputy Funk, Payton was “basically resisting officers the
entire time.” (Tr. Vol. 2 at 52).
[15] Deputy Funk further testified that while in the padded cell with Payton,
correctional officers had removed Payton’s restraints to give him medicine. In
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 7 of 14
addition, Deputy Funk testified that when the officers had attempted to put the
restraints back on Payton, he had “started fighting with officers again” and
kicking them. (Tr. Vol. 2 at 52). According to Deputy Funk, one of the officers
had given Payton “a drive-stun” with a CED. (Tr. Vol. 2 at 52). Deputy Funk
explained that the CED that the correctional officer had used was not “what
people see when they see someone being tased. Where you . . . deploy probes
and . . . it makes them immobile.” (Tr. Vol. 2 at 53). Rather, according to
Deputy Funk, the CED that the officer had used was “like a pain compliance
thing that, you . . . put . . . on their skin. Deliver . . . a brief shock to them . . .
but they can . . . still move and do it, it’s just kind of a pain compliance.” (Tr.
Vol. 2 at 53). Deputy Funk further testified that Payton had subsequently
complied with the officers and had been evaluated and cleared by a medical
professional.
[16] During closing argument, Sheriff Fell argued, in relevant part, as follows:
. . . I think that, you know in a situation like this, you know
Sheriff Plasse who’d, been the, Chief of Police for the Terre
Haute Police Department for over a decade. Who’d served two
(2) terms in Afghanistan, and was now the Vigo County Sheriff
in his second term. Was extremely well[-]liked and was well[-]
respected within the community, not only profession[ally] but
personally. I think after this particular situation is that, you
know, someone like that dies unexpectedly, even though they
had, a . . . significant illness and had been dealing with it for
quite some time. I think it had an impact upon this particular
Sheriff’s Department[.]
(Tr. Vol. 2 at 58).
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 8 of 14 [17] In December 2025, the trial court issued an order granting Sheriff Fell’s motion
to set aside the default judgment. The order specifically provides, in relevant
part, as follows:
The Court finds that the breakdown in the mail delivery system
was due to Sheriff Plasse’s death and constitutes excusable
neglect. Further, said death and transition to [Sheriff] Fell
constitutes exceptional circumstances justifying relief from the
default judgment. [Sheriff] Fell has a substantial interest in the
matter, especially because [Payton] alleged that [Sheriff] Fell, as
Sheriff, had a practice, custom or policy of using excessive force
in the jail. It is true that [Sheriff] Fell’s actions to set aside the
judgment were not especially quick. However, [Sheriff] Fell will
suffer significant loss if the default judgment is not set aside.
Whereas [Payton] will suffer much less of a loss if the case is
reinstated. In short, it is the Court’s opinion that the allegations
of excessive force should be supported by evidence and not
presumed by default[.]
The Court finds that [Sheriff] Fell has asserted a meritorious
defense.
(App. Vol. 2 at 10-11) (internal case citation omitted).
[18] Payton now appeals.
Decision
[19] Payton argues that the trial court abused its discretion when it granted Sheriff
Fell’s motion to set aside the default judgment. We disagree.
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 9 of 14 [20] The decision whether to set aside a default judgment is given substantial
deference on appeal. Huntington National Bank v. Car-X Associates Corporation, 39
N.E.3d 652, 655 (Ind. 2015). Our standard of review is limited to determining
whether the trial court abused its discretion. Id. An abuse of discretion may
occur if the trial court’s decision is against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law. Id.
When reviewing the trial court’s decision, we will not reweigh the evidence or
substitute our judgment for that of the trial court. Id.
[21] “A default judgment is not generally favored, and any doubt of its propriety
must be resolved in favor of the defaulted party.” KWD Industrias SA DE CV v.
IPM LLC, 129 N.E.3d 276, 281 (Ind. Ct. App. 2019) (cleaned up). “Indiana law
strongly prefers disposition of cases on their merits.” Coslett v. Weddle Brothers
Construction Company, Inc., 798 N.E.2d 859, 861 (Ind. 2003), reh’g denied.
[22] “This court has considered the amount of money involved, the material issues
of fact accompanying the allegations, the length of the delay, and lack of
prejudice in concluding that a trial court did not abuse its discretion in allowing
a case to be heard on the merits.” KWD, 129 N.E.3d at 281. See also Kmart
Corporation v. Englebright, 719 N.E.2d 1249, 1253 (Ind Ct. App. 1999)
(explaining that “[a] cautious approach to the grant of motions for default
judgment is warranted in cases involving material issues of fact, substantial
amounts of money, or weighty policy determinations”) (cleaned up), trans.
denied.
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 10 of 14 [23] Here, Payton argues that “the Trial Court abused its discretion by granting
Derek Fell’s Motion to Set Aside Default Judgment pursuant to Trial Rule
60(B)(1) when Derek Fell, in his official capacity as Sheriff of Vigo County,
failed to make a showing of excusable neglect[.]” (Payton’s Br. 6).
[24] “Under subsection (B)(1) [of Trial Rule 60], a trial court may relieve a party
from a default judgment for ‘mistake, surprise, or excusable neglect’ if the party
files a motion within one year of the judgment and alleges a meritorious claim
or defense.” Huntington, 39 N.E.3d at 655. “Addressed to the trial court’s
equitable discretion, a Trial Rule 60(B)(1) motion does not attack the
substantive, legal merits of a judgment, but rather addresses the procedural,
equitable grounds justifying the relief from the finality of a judgment.” Id.
(cleaned up). “Because there is no general rule as to what constitutes excusable
neglect under Trial Rule 60(B)(1), each case must be determined on its own
particular facts.” Id. (cleaned up). “The controlling question is whether there
exists even slight evidence of excusable neglect.” Wamsley v. Tree City Village,
108 N.E.3d 334, 336 (Ind. 2018) (per curiam).
[25] For example, in the Wamsley case, Matthew Joseph accidentally discharged a
firearm while cleaning it. The bullet passed through the wall of his apartment
and struck Wamsley, who lived in the adjacent apartment. Wamsley retained
counsel, who communicated for several months with the apartment complex’s
insurer and its management company. The insurer denied Wamsley’s claim,
and Wamsley filed a suit against the apartment complex and the management
company (collectively “the landlords”) and Joseph. The president of the
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 11 of 14
management company contacted Wamsley’s counsel, acknowledged receipt of
the complaint, and pointed out a factual error in it. The president then placed
the complaint in a file cabinet and did nothing further. Neither Wamsley’s
counsel nor the management company notified the insurer of the complaint.
[26] None of the defendants timely answered the complaint, and Wamsley moved
for and was granted a default judgment. The landlords retained counsel and
filed motions to set aside the default judgment on the grounds of excusable
neglect. The trial court granted the landlords’ motions following a hearing. On
appeal, this Court reversed the trial court. See Wamsley v. Tree City Village, 95
N.E.3d 534 (Ind. Ct. App. 2018), trans. granted. Specifically, we concluded that,
although we were aware of the high level of deference accorded to trial court in
these decisions and the preference in Indiana for resolving cases on the merits,
“the [l]andlords’ inattention to the complaint and summons and their failure to
consult with or discuss the suit with the Insurer may constitute neglect, but it
does not constitute excusable neglect under Indiana Trial Rule 60(B)(1).” Id. at
542.
[27] However, our Indiana Supreme Court granted transfer, vacated this Court’s
opinion, and, in a two-page per curiam opinion, explained and concluded as
follows: “The controlling question is whether there exists even slight evidence
of excusable neglect. Our deferential standard of review compels us to affirm
the trial court. There exists evidence of excusable neglect in this case –
although that evidence is indeed exceedingly slight – and Landlords have made
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 12 of 14
the requisite showing under Trial Rule 60(B)(1) of a meritorious defense.” 2
Wamsley, 108 N.E.3d at 336 (cleaned up). See also Riddle v. Cress, 153 N.E.3d
1112, 1114 (Ind. 2020) (per curiam) (granting transfer, vacating this Court’s
memorandum decision that had reversed the trial court’s order granting the
Riddles’ motion to set aside a default judgment, and concluding that under the
deferential standard of appellate review, the trial court’s assessments of the
parties’ credibility and demeanor were sufficient “to establish at least ‘slight
evidence’ of excusable neglect”), reh’g denied.
[28] Here, our review of the record reveals that there exists evidence of excusable
neglect. See Wamsley, 108 N.E.3d at 336. Specifically, during the months
following Sheriff Plasse’s sudden death in July 2024, the sheriff’s department
was in chaos, and its employees experienced an extremely difficult transition.
We further note that this case involves material issues of fact regarding what
happened during the March 2023 incident. In addition, as noted by the trial
court, Sheriff Fell will suffer a significant loss if the default judgment is not set
aside. On the other hand, Payton will suffer much less of a loss if the case is
reinstated.
[29] In sum, based on these facts and circumstances, the deference accorded to trial
courts in similar cases, and the preference in Indiana for resolving cases on the
merits, we conclude that Sheriff Fell demonstrated excusable neglect. See
2
The per curiam opinion does not set forth the specific facts that constituted the slight evidence of excusable
neglect.
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 13 of 14
KWD, 129 N.E.3d at 282 (concluding that based upon the record and in light of
the issues of fact accompanying the claims raised in the complaint and the
absence of evidence of prejudice to KWD, the appellees demonstrated
excusable neglect). Accordingly, we further conclude that the trial court did not
abuse its discretion when it granted Sheriff Fell’s motion to set aside the default
judgment. See id. at 283.3
[30] Affirmed.
May, J., and Scheele, J., concur.
ATTORNEYS FOR APPELLANT
Rachel O. Webster
Bradley C. Lohmeier
Saeed & Little, LLP
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
David P. Friedrich
Wilkinson, Goeller, Modesitt, Wilkinson & Drummy
Terre Haute, Indiana
3
We further note that Sheriff Fell has made the requisite showing under Trial Rule 60(B)(1) of a meritorious
defense. See Wamsley, 108 N.E.3d at 336. Payton does not argue otherwise. We also note that because we
have found that the trial court did not abuse its discretion when it found that the breakdown in the mail
delivery system was due to Sheriff Plasse’s death and constituted excusable neglect, we need not determine
whether such a breakdown also constituted exceptional circumstances pursuant to Trial Rule 60(B)(8).
Court of Appeals of Indiana Opinion 26A-CT-118 October 15, 2026 Page 14 of 14