Ralph Jennings d/b/a A Cut Above Tree Service v. Terrance Kinnard ( 2012 )


Menu:
  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not
    be regarded as precedent or cited                             FILED
    before any court except for the purpose                     Oct 09 2012, 9:02 am
    of establishing the defense of res
    judicata, collateral estoppel, or the law                          CLERK
    of the supreme court,
    of the case.                                                     court of appeals and
    tax court
    ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEE:
    ZACHARY T. ROSENBARGER                           KAREN HUELSKAMP
    Wuertz Law Office, LLC                           Huelskamp & Huelskamp
    Indianapolis, Indiana                            Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    RALPH JENNINGS d/b/a A Cut Above                 )
    Tree Service,                                    )
    )
    Appellant-Plaintiff,                     )
    )
    vs.                               )       No. 49A05-1203-CC-117
    )
    TERRANCE KINNARD,                                )
    )
    Appellee-Respondent.                     )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Patrick McCarty, Judge
    The Honorable Burnett Caudill, Magistrate
    Cause No. 49D03-0812-CC-57787
    October 9, 2012
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    BARNES, Judge
    Case Summary
    Ralph Jennings, d/b/a A Cut Above Tree Services, appeals the trial court’s grant of
    Terrance Kinnard’s motion for relief from judgment. We reverse and remand.
    Issue
    Jennings raises one issue, which we restate as whether the trial court properly
    granted Kinnard’s motion for relief from judgment.
    Facts
    In June 2008, Kinnard, who is an attorney, hired Jennings to remove trees at an
    agreed cost of $2,800. Jennings performed the work, but Kinnard paid him only $1,000.
    In July, 2008, Jennings filed a complaint against Kinnard in the Marion County Small
    Claims Court and filed a mechanic’s lien on the property. At Kinnard’s request, the case
    was repled in the Marion Superior Court in January 2009. Jennings alleged that Kinnard
    owed him $1,800 plus attorney fees and other damages. Kinnard, representing himself,
    filed an answer and counterclaim. Kinnard admitted that Jennings had “performed all the
    conditions of the contract on [Jennings’] part to be performed” and that he had “only
    made partial payment of $1000.00 . . . .” Appellant’s App. at 9. In the counterclaim,
    Kinnard alleged that Jennings had violated the Fair Debt Collection Practices Act and had
    “knowing[ly] caused a cloud to be placed on the land title for the property . . . .” Id. at
    19.
    In July 2009, Jennings filed a motion for judgment on the pleadings. Jennings
    alleged that Kinnard had admitted owing $1,800 under the contract, that Kinnard’s Fair
    Debt Collections Practices Act claim fails because Jennings is not a debt collector subject
    2
    to the Act, and that Kinnard’s “clouding of title” claim “fail[ed] to elucidate a legal
    theory upon which relief can be granted.” Id. at 35. Kinnard did not appear for the
    August 14, 2009 hearing on Jennings’s motion for judgment on the pleadings. At the
    hearing, Jennings’s counsel stated:
    He [Kinnard] called the court office this morning. I called his
    office today and I spoke to his secretary and he said that he
    would be doing depositions in Hamilton County and would
    not be here today. The secretary also told me that Mr.
    Kinnard is planning on filing bankruptcy, so I guess he isn’t
    concerned about what happens with this case.
    Aug. 14, 2009 Tr. p. 2. On the same day, the trial court granted Jennings’s motion for
    judgment on the pleadings and ordered Kinnard to pay $4,189.22, which included $1,800
    still owed on the contract and $2,389.22 in attorney fees. Kinnard’s bankruptcy attorney
    requested a copy of the judgment from Jennings’s attorney, and Jennings’s attorney faxed
    it to him on August 20, 2009.
    Jennings then filed a motion for proceedings supplemental, and the trial court
    scheduled the matter for a November 3, 2009 hearing. The motion was served on
    Kinnard by personal service, but he did not appear at the hearing. Kinnard filed for
    Chapter 13 bankruptcy protection on November 25, 2009, and included the judgment to
    Jennings in his filing. Kinnard’s bankruptcy case was dismissed on December 20, 2010.
    Jennings then resumed his attempts to collect the judgment from Kinnard.
    On September 13, 2011, Kinnard filed a “verified petition to vacate default
    judgment.” Appellant’s App. p. 91. Kinnard requested relief from the judgment under
    Indiana Trial Rule 60(B). Kinnard denied having notice of the August 14, 2009 hearing
    3
    and alleged that he was “actively engaged in pursuing” a bankruptcy filing beginning in
    July 2009, that he was unaware of the judgment until December 2009, and that his
    motion was filed within a reasonable amount of time. Id. at 91. Kinnard also alleged that
    he had a meritorious defense because he was not indebted to Jennings in the amount
    alleged in the complaint, he did not breach any term of the written agreement, and
    Jennings was not entitled to attorney fees. Jennings objected to Kinnard’s motion. After
    a hearing on the motion, the trial court granted Kinnard’s motion under Indiana Trial
    Rule 60(B). Jennings then filed a motion to correct error, which the trial court denied.
    Jennings now appeals.
    Analysis
    The issue is whether the trial court properly granted Kinnard’s motion for relief
    from judgment. The trial court granted Kinnard relief under Indiana Trial Rule 60(B),
    which 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; [or]
    *****
    (8) any reason justifying relief from the operation of the
    judgment, other than those reasons set forth in sub-paragraphs
    (1), (2), (3), and (4).
    The Rule provides that a motion under subsection (1) must be filed “not more than one
    year after the judgment, order or proceeding was entered or taken,” and a motion under
    4
    subsection (8) “shall be filed within a reasonable time.” Ind. Trial Rule 60(B). A movant
    filing a motion for reasons (1) or (8) must also allege a meritorious claim or defense. Id.
    The burden is on the movant to establish grounds for Rule 60(B) relief. In re
    Paternity of P.S.S., 
    934 N.E.2d 737
    , 740 (Ind. 2010). “A motion made under subdivision
    (B) of Trial Rule 60 is addressed to the ‘equitable discretion’ of the trial court; the grant
    or denial of the Trial Rule 60(B) motion will be disturbed only when that discretion has
    been abused.’” 
    Id. at 740-41
     (quoting Fairfield v. Fairfield, 
    538 N.E.2d 948
    , 949-50 (Ind.
    1989)). An abuse of discretion will be found only when the trial court’s action is against
    the logic and effect of the facts before it and the inferences that may be drawn therefrom.
    
    Id. at 741
    .
    We begin by addressing Kinnard’s argument that we should dismiss this appeal
    because no final order exists and this order was not certified for interlocutory appeal.
    Relying on Indiana Appellate Rules 5 and 14, Kinnard contends that Jennings was
    required to have the order granting relief under Rule 60(B) certified for interlocutory
    appeal in order to institute this appeal. However, Indiana Trial Rule 60(C) provides: “A
    ruling or order of the court denying or granting relief, in whole or in part, by motion
    under subdivision (B) of this rule shall be deemed a final judgment, and an appeal may be
    taken therefrom as in the case of a judgment.”1 Consequently, Kinnard’s argument is
    incorrect, and we will address Jennings’s appeal.
    1
    In Allstate Ins. Co. v. Fields, 
    842 N.E.2d 804
    , 806 (Ind. 2006), our supreme court held “no appeal may
    be taken under Trial Rule 60(C) from the denial of a motion for relief from an interlocutory order granting
    default judgment on less than all issues.” Kinnard makes no argument that the trial court resolved less
    than all the issues, and, in fact, the trial court addressed both Jennings’s claims and Kinnard’s
    counterclaims.
    5
    Jennings argues that it is unclear whether Kinnard’s motion for relief from
    judgment was based on Rule 60(B)(1) or 60(B)(8). Jennings argues that Kinnard did not
    meet the requirements for either subsection because Kinnard did not meet the time
    requirements, he was notified of the proceedings and the judgment, and he failed to
    present a meritorious defense.
    We first address Jennings’s arguments regarding Rule 60(B)(1). A motion under
    Rule 60(B)(1) must be filed “not more than one year after the judgment, order or
    proceeding was entered or taken.” T.R. 60(B). We agree that Kinnard did not meet this
    time limitation. The judgment was issued on August 14, 2009, and Kinnard filed his
    motion under Rule 60(B) more than two years later on September 13, 2011. Even if the
    time of Kinnard’s bankruptcy is excluded (November 25, 2009 through December 20,
    2010), Kinnard still failed to file his motion within one year of the judgment.
    Consequently, Kinnard’s motion was untimely under Rule 60(B)(1).
    On appeal, Kinnard argues that his motion was based on Rule 60(B)(8). Rule
    60(B)(8) allows relief 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).” The
    motion must be filed within a “reasonable time” after the judgment is entered. T.R.
    60(B). A party seeking relief from judgment under subsection (8) must affirmatively
    demonstrate “extraordinary circumstances.” G.H. Skala Const. Co. v. NPW, Inc., 
    704 N.E.2d 1044
    , 1047 (Ind. Ct. App. 1998), trans. denied. Exceptional circumstances do not
    include mistake, surprise, or excusable neglect. Brimhall v. Brewster, 
    864 N.E.2d 1148
    ,
    1153 (Ind. Ct. App. 2007).
    6
    Kinnard argues that he did not have notice of the August 14, 2009 hearing, that he
    was unaware of the judgment until December 2009, and that he started pursuing
    bankruptcy in June 2009. Kinnard also testified that his secretary signed his name on the
    summons delivered in November 2009 regarding the proceeding supplemental. The
    record demonstrates, however, that Kinnard was fully aware of the proceedings. In fact,
    the small claims court action was transferred to superior court at his request, he filed a
    motion for extension to time to answer the complaint, and he filed an answer and
    counterclaim. Although he may have started collecting his documents and information
    for his bankruptcy filing in June 2009, he did not file his bankruptcy petition until
    November 25, 2009, and the November 2009 bankruptcy petition does not excuse his
    failure to appear at the August 2009 hearing or the November 3, 2009 proceeding
    supplemental.
    At the August 2009 hearing, Jennings’s counsel stated:
    He [Kinnard] called the court office this morning. I called his
    office today and I spoke to his secretary and he said that he
    would be doing depositions in Hamilton County and would
    not be here today. The secretary also told me that Mr.
    Kinnard is planning on filing bankruptcy, so I guess he isn’t
    concerned about what happens with this case.
    Aug. 14, 2009 Tr. p. 2. Kinnard argues that “these assertions at best demonstrate that
    Kinnard was made aware of the August 14, 2009 hearing the morning of said hearing.”
    Appellee’s Br. p. 9. Even if we assume that Kinnard was initially unaware of the hearing,
    the evidence shows that he was soon thereafter made aware of the judgment but failed to
    act.   Kinnard’s bankruptcy counsel contacted Jennings’s counsel in August 2009
    7
    regarding the judgment, and Jennings’s counsel sent him a copy of the judgment. In fact,
    Kinnard included the judgment in the bankruptcy petition. Kinnard also admitted that his
    secretary signed the summons issued to him regarding the November 2009 proceeding
    supplemental.     Despite his knowledge of the judgment, Kinnard failed to act until
    September 13, 2011, almost nine months after the dismissal of his bankruptcy action.
    Under these circumstances, Kinnard has failed to demonstrate extraordinary
    circumstances as required by Rule 60(B)(8). At best, Kinnard established excusable
    neglect, but he failed to meet the time limitations of Rule 60(B)(1). Kinnard cannot now
    circumvent the time limitations of Rule 60(B)(1) by attempting to rely on Rule 60(B)(8).
    Kinnard also failed to file his motion within a “reasonable time,” by waiting until
    September 2011 to challenge the judgment. T.R. 60(B). As a result, we conclude that
    the trial court’s grant of relief from the judgment was an abuse of discretion. 2 See
    Summit Account & Computer Serv. v. Hogge, 
    608 N.E.2d 1003
    , 1006 (Ind. Ct. App.
    1993) (holding that the trial court’s grant of relief from the judgment was an abuse of its
    discretion because the defendant failed to demonstrate extraordinary circumstances under
    Rule 60(B)(8)).
    Conclusion
    We conclude that the trial court abused its discretion when it granted Kinnard’s
    motion for relief from the judgment. We reverse and remand for proceedings consistent
    with this opinion.
    2
    Because we conclude that Kinnard did not establish extraordinary circumstances under Rule 60(B)(8)
    and failed to file his motion within a reasonable time, we need not address the parties’ arguments
    regarding whether Kinnard had a meritorious defense.
    8
    Reversed and remanded.
    VAIDIK, J., and MATHIAS, J., concur.
    9
    

Document Info

Docket Number: 49A05-1203-CC-117

Filed Date: 10/9/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021