Opinion
22A-PL-595
07-15-2022
Nichole S. Hunter, Appellant-Defendant, v. Grandview Community Association, Inc., Appellee-Plaintiff.
Attorney for Appellant Brian P. Sweeney Indianapolis, Indiana Attorneys for Appellee Jeffrey M. Bellamy Stephen R. Donham Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana
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.
Appeal from the Morgan Superior Court The Hon. Sara A. Dungan, Judge Trial Court Cause No. 55D03-2108-PL-1198
Attorney for Appellant
Brian P. Sweeney Indianapolis, Indiana
Attorneys for Appellee
Jeffrey M. Bellamy Stephen R. Donham Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, CHIEF JUDGE
Case Summary
[¶1] Nichole Hunter appeals from the trial court's entry of default judgment in favor of Grandview Community Association, Inc., the organization that manages the neighborhood in which Hunter resides ("the Neighborhood"). Property use in the Neighborhood is subject to certain restrictions, and, over the course of a year, Grandview sent Hunter sixteen letters seeking her compliance with various of those restrictions. When this proved unsuccessful, Grandview brought suit, seeking declaratory judgment and a permanent injunction against Hunter, which, when Hunter failed to respond to the lawsuit, the trial court granted. Hunter moved for relief from the judgment and injunction, which motion the trial court denied. Hunter contends that the trial court abused its discretion in denying her motion for relief from judgment. Because we conclude that Hunter has waived all of her appellate arguments, we affirm.
Facts and Procedural History
[¶2] Grandview is an Indiana not-for-profit corporation whose primary purpose is to manage the Neighborhood in Mooresville. The Neighborhood is governed by the "Declaration of Covenants, Conditions and Restrictions of Grandview" ("The Declaration"), recorded on October 26, 1994, and the "Plat Covenants and Restrictions" ("the Plat Covenants Instrument"), recorded on December 19, 1996. Hunter's residence stands on a lot located in the Neighborhood ("the Lot") and is subject to the Declaration and the Plat Covenants Instrument.
[¶3] The Declaration provides, in part, as follows:
9.1 Maintenance of Lots and Improvements. Except to the extent such maintenance shall be the responsibility of the Association under any of the foregoing provisions of this Declaration, it shall be the duty of any Owner of each Lot [...] to keep the grass on the Lot properly cut and keep the Lot, including any Utility or Drainage Easement or landscape easements located on the Lot, free of weeds, trash or construction debris and otherwise neat and attractive in appearance, including, without limitation, the proper maintenance of the exterior of any structures on such Lot.Appellee's App. Vol. II p. 26.
[¶4] The Plat Covenants Instrument provides, in part, as follows:
10. VEHICLE PARKING. No camper, motor home, bus, truck, trailer, boat, snowmobile or other recreational vehicle of any kind may be stored on any Lot in open public view. No vehicles of any kind may be put up on blocks or jacks to accommodate car repair on a Lot unless such repairs are done in the garage. Disabled vehicles shall not be allowed to remain in open public view.
[….]
13. GARBAGE AND REFUSE DISPOSAL. Trash and refuse disposal will be on an individual basis, lot by lot. The community shall not contain dumpsters or other forms of general or common trash accumulation except to facilitate development and house construction. No Lot shall be used or maintained as a dumping ground for trash. Rubbish, garbage and other waste shall be kept in sanitary containers. All equipment for storage or disposal of such materials shall be kept clean and shall not be stored on any Lot in open public view. No rubbish, garbage or other waste shall be allowed to accumulate on any Lot. No homeowner or occupant of a Lot shall burn or bury any garbage or refuse.Appellee's App. Vol. II p. 36.
[¶5] Beginning in January of 2021, Grandview sent a total of sixteen letters to Hunter, seeking to obtain compliance with the Declaration and the Plat Covenants Instrument. The letters requested that, inter alia, Hunter refrain from storing her trash cans in the driveway, remove a disabled vehicle from public view, refrain from storing her trailer in the driveway, mow on a regular basis, trim overgrown plants, and remove piles of debris.
[¶6] On August 9, 2021, Grandview filed a complaint against Hunter for injunctive relief and attorney's fees. On August 10, 2021, Hunter was served at the Lot, and the next day, the Morgan County Sheriff mailed a copy of the summons to the Lot. Hunter did not appear or respond to Grandview's complaint. On December 16, 2021, the trial court granted Grandview's motion for default judgment, entered default judgment in favor of Grandview, and granted a permanent injunction against Hunter.
[¶7] On January 13, 2022, Hunter moved to set aside the default judgment and permanent injunction, seeking relief pursuant to Indiana Rule of Trial Procedure 60(B)(4). On February 11, 2022, the trial court held a hearing on Hunter's motion for relief from judgment. At no point during the hearing did Hunter mention any provision of Trial Rule 60(B) other than 60(B)(4) or seek to amend her motion. Moreover, Hunter did not attempt to offer a meritorious defense to Grandview's allegations. On February 15, 2022, the trial court denied Hunter's motion to set aside the default judgment against her on the bases that (1) Trial Rule 60(B)(4) concerns deficient attempts at service by publication, which had not been the method of service in this case; and (2) Hunter failed to even attempt to present a meritorious defense.
Discussion and Decision
[¶8] Hunter contends that the trial court abused its discretion in denying her motion for relief from judgment. Trial Rule 60(B) provides, in part, that "[o]n motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default[.]"
Our scope of review for the grant or denial of a T.R. 60(B) motion is limited to whether the trial court abused its discretion. An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief.McIntyre v. Baker, 703 N.E.2d 172, 174 (Ind.Ct.App. 1998) (citations omitted). We "will neither reweigh evidence nor judge the credibility of witnesses, considering instead only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom." Fields v. Safway Group Holdings, LLC, 118 N.E.3d 804, 809 (Ind.Ct.App. 2019), trans. denied.
[¶9] Hunter contends that the trial court abused its discretion in denying her relief pursuant to Trial Rule 60(B)(8), which allows for setting aside a judgment for "any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)." Hunter, however, relied exclusively on Trial Rule (60)(B)(4) in the trial court, never mentioning sub-paragraph (8). As Grandview points out, "it is well settled that an argument presented for the first time on appeal is waived for purposes of appellate review." CT102 LLC v. Auto. Fin. Corp., 175 N.E.3d 869, 874 (Ind.Ct.App. 2021).
[¶10] Moreover, Trial Rule 60(B) also provides that "[a] movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense[,]" and Hunter did not. Not only did Hunter fail to allege or establish a meritorious defense below, she actively resisted doing so, lodging a continuing objection to any questions related to the condition of the Lot and presenting no evidence related to any claimed meritorious defense. The only argument Hunter makes is to point to Grandview's evidence that refuse piles were still visible on Hunter's property at the time of the hearing on her motion to set aside default judgment and argue that they were not actually visible by the public. Not only was this argument not advanced in the trial court (and therefore waived), CT102 LLC, 175 N.E.3d at 874, it amounts to nothing more an invitation to reweigh the evidence, which we will not do. Fields, 118 N.E.3d at 809.
[¶11] We affirm the judgment of the trial court.
Najam, J., and Bailey, J., concur.