Opinion
23A-CC-2447
06-20-2024
Nu-Life Products, Inc., and James R. Robertson, Appellants-Defendants v. Krieg DeVault LLP, Appellee-Plaintiff
ATTORNEY FOR APPELLANTS Nicholas Plopper Plopper & Partners, LLP Zionsville, Indiana ATTORNEYS FOR APPELLEE Mark J. R. Merkle Krieg DeVault LLP Carmel, Indiana Alexandra Wilson Pantos Krieg DeVault LLP Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court Trial Court Cause No. 29D02-2204-CC-3050 The Honorable Jonathan M. Brown, Judge
ATTORNEY FOR APPELLANTS Nicholas Plopper Plopper & Partners, LLP Zionsville, Indiana
ATTORNEYS FOR APPELLEE Mark J. R. Merkle Krieg DeVault LLP Carmel, Indiana Alexandra Wilson Pantos Krieg DeVault LLP Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge
[¶1] Nu-Life Products, Inc., ("Nu-Life") and James R. Robertson appeal from the denial of their motion for relief from judgment. We affirm.
We remind counsel for Nu-Life and Robertson that Ind. Appellate Rule 46(A)(5) provides that the Statement of Case "shall briefly describe the nature of the case, the course of the proceedings relevant to the issues presented for review, and the disposition of these issues by the trial court" and "[p]age references to the Record on Appeal or Appendix are required in accordance with Rule 22(C)." Ind. Appellate Rule 22(C) provides in part: "Any factual statement shall be supported by a citation to the volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and page it appears in the Transcript or exhibits, e.g., Appellant's App. Vol. II p.5; Tr. Vol. I, pp. 231-32."
Facts and Procedural History
[¶2] On April 29, 2022, Krieg DeVault LLP ("Krieg DeVault") filed a complaint against Nu-Life and Robertson alleging that Robertson in his individual capacity and on behalf of Nu-Life executed engagement letters in 2013 and 2016 regarding its representation of them with respect to various matters, it performed legal services and mailed invoices to the address provided by Nu-Life, and Nu-Life and Robertson failed to pay certain amounts and breached their agreement. On July 15, 2022, Nu-Life and Robertson filed an answer alleging affirmative defenses of "Ambiguity," "Breach of Contract by [Krieg DeVault]," "Lack of Consideration," "Failure of Consideration," and "Offset." Appellants' Appendix Volume I at 55-56. On July 8, 2023, Krieg DeVault filed a motion for summary judgment. On August 16, 2023, the court entered an order granting Krieg DeVault's motion and determined there was no just reason for delay and entered final judgment pursuant to Ind. Trial Rule 54(B).
[¶3] On August 22, 2023, Nu-Life and Robertson filed a "Motion to Set Aside Summary Judgment and for Hearing" in which their counsel cited Ind. Trial Rule 60(B)(1) and alleged he did not receive notice of the motion for summary judgment due to an outage of the statewide Enterprise Justice Case Management System. Id. at 100 (capitalization omitted). They asserted that they "have meritorious defenses to the amounts claimed by [Krieg DeVault] in its Motion; these include the negligence of [Krieg DeVault] in the services it provided." Id. at 101. They alleged that Krieg DeVault "failed to recognize the moratorium on interest on judgments due to the Covid-19 pandemic pursuant to the Indiana Supreme Court's May 29, 2020 Order Extending Trial Court's Emergency Tolling Authority and Setting Expiration of Other Emergency Orders." Id. Nu-Life and Robertson also requested a hearing pursuant to Ind. Trial Rule 60(D). On August 24, 2023, Krieg DeVault filed a response. On September 18, 2023, the court entered an order denying the motion to set aside summary judgment.
Discussion
[¶4] Nu-Life and Robertson argue that the trial court erred in denying their motion for relief from judgment, failing to schedule a hearing, and failing to recognize the meritorious defenses. They reference the five affirmative defenses in their July 15, 2022 answer and argue that there was no hearing or opportunity for them to present evidence related to their affirmative defenses. They also contend that the trial court awarded Krieg DeVault $34,147.44 in prejudgment interest in violation of the Indiana Supreme Court's May 29, 2020 Order.
[¶5] Relief from judgment under Trial Rule 60 is an equitable remedy within the trial court's discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). Accordingly, we generally review a trial court's Rule 60 ruling only for abuse of discretion. Id. "But when 'the trial court rules on a paper record without conducting an evidentiary hearing,' . . . we are 'in as good a position as the trial court . . . to determine the force and effect of the evidence.'" Id. (quoting GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (quoting Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App. 1985))). Under those circumstances, our review is de novo. Id.
[¶6] Ind. Trial Rule 60(B) provides:
On 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, for the following reasons:
(1) mistake, surprise, or excusable neglect;
* * * * *
A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
[¶7] Ind. Trial Rule 60(D) provides: "In passing upon a motion allowed by subdivision (B) of this rule the court shall hear any pertinent evidence, allow new parties to be served with summons, allow discovery, grant relief as provided under Rule 59 or otherwise as permitted by subdivision (B) of this rule."
[¶8] As for Nu-Life and Robertson's argument that their counsel's failure to timely respond to Krieg Devault's motion for summary judgment constituted excusable neglect pursuant to Ind. Trial Rule 60(B)(1), we note that a motion under Rule 60(B)(1) 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. KWD Industrias SA DE CV v. IPM LLC, 129 N.E.3d 276, 281 (Ind.Ct.App. 2019). There is no general rule as to what constitutes excusable neglect. Id. Each case must be determined on its particular facts. Id.
[¶9] Although there are exceptions, generally, the negligence of an attorney is attributable to the client for Trial Rule 60(B) purposes, and attorney negligence will not support a finding of excusable neglect. Thompson v. Thompson, 811 N.E.2d 888, 903-904 (Ind.Ct.App. 2004), reh'g denied, trans. denied; see also Baker &Daniels, LLP v. Coachmen Indus., Inc., 924 N.E.2d 130, 140-141 (Ind.Ct.App. 2010) (observing that counsel have a duty to keep apprised of the status of matters pending before the court) (citing Sanders v. Carson, 645 N.E.2d 1141, 1144 (Ind.Ct.App. 1995) ("This court has held that it is the duty of an attorney and his client to keep apprised of the status of matters before the court.")), trans. denied.
[¶10] The chronological case summary here contains entries dated July 10, 2023, indicating that Krieg DeVault filed a motion for summary judgment on July 8, 2023. The trial court entered an order granting Krieg DeVault's motion more than thirty days later. While Nu-Life and Robertson attached to their motion for relief from judgment an email message dated July 11, 2023, announcing that the statewide Enterprise Justice Case Management System was down, as argued by Krieg DeVault "[t]hat notice providing the system was down should have alerted counsel to potential lapses in the electronic notification functionality of the CMS system." Appellee's Brief at 18-19.
[¶11] Even assuming any neglect by Nu-Life and Robertson's counsel in failing to keep apprised of the status of the pending matter was excusable, we cannot say reversal is warranted. Ind. Trial Rule 60(B) requires a movant to allege a meritorious claim or defense when filing a motion pursuant to Rule 60(B)(1). The Indiana Supreme Court has held "Rule 60(B)'s requirement of a meritorious defense . . . merely requires a prima facie showing of a meritorious defense, that is, a showing that will prevail until contradicted and overcome by other evidence" and the movant "need only present evidence that, if credited, demonstrates that a different result would be reached if the case were retried on the merits and that it is unjust to allow the judgment to stand." Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 73-74 (Ind. 2006) (citation and quotation marks omitted). This Court has held that, to successfully allege a meritorious claim or defense pursuant to Rule 60(B), a party "must state a factual basis for his purported meritorious claim or defense." Logansport/Cass Cty. Airport Auth. v. Kochenower, 169 N.E.3d 1143, 1149 (Ind.Ct.App. 2021). We noted that "mere conclusory statements will not suffice under the Rule" and that "such allegations may be satisfied when the moving party 'state[s] enough facts to give a court an opportunity to measure whether the claim or defense has any potential.'" Id. at 1148-1149 (quoting 12 Moore's Federal Practice, § 60.24 [2] (3d ed. 1997)). It is for the trial court to determine whether the moving party has made such a prima facie showing. Id. at 1149.
[¶12] To the extent Nu-Life and Robertson assert on appeal that the trial court erred by not considering the defenses raised in their July 15, 2022 answer, we note that they did not raise these as meritorious defenses in their motion to set aside. Rather, in their August 22, 2023 "Motion to Set Aside Summary Judgment and for Hearing," which cited Ind. Trial Rule 60(B)(1), Nu-Life and Robertson merely asserted that they "have meritorious defenses to the amounts claimed by [Krieg DeVault] in its Motion; these include the negligence of [Krieg DeVault] in the services it provided." Appellants' Appendix Volume I at 101. We cannot say that this conclusory allegation stated a factual basis for the purported meritorious defense.
As for Nu-Life and Robertson's assertion that Krieg DeVault "failed to recognize the moratorium on interest on judgments due to the Covid-19 pandemic pursuant to the Indiana Supreme Court's May 29, 2020 Order Extending Trial Court's Emergency Tolling Authority and Setting Expiration of Other Emergency Orders," Appellants' Appendix Volume I at 101, we note that Nu-Life and Robertson do not cite to the record and do not develop a cogent argument. Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8)(a) (argument must be supported by cogent reasoning and citations to authorities and the record); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.Ct.App. 2002) (argument waived for failure to provide cogent argument), reh'g denied, trans. denied.
[¶13] To the extent Nu-Life and Robertson argue that the trial court erred by failing to schedule a hearing, they do not specify what pertinent evidence would have been presented at a hearing. Under these circumstances, reversal is not warranted. See Thompson, 811 N.E.2d at 904 (noting that Trial Rule 60(D) generally requires trial courts to hold a hearing on any pertinent evidence before granting Trial Rule 60(B) relief, but that when there is no pertinent evidence to be heard, a hearing is unnecessary) (citing Pub. Serv. Comm'n v. Schaller, 157 Ind.App. 125, 130, 299 N.E.2d 625, 628 (1973) (noting that the language of Rule 60(D) is mandatory but only for the presentation of "pertinent evidence")).
[¶14] For the foregoing reasons, we affirm the trial court.
[¶15] Affirmed.
Riley, J., and Foley, J., concur.