Smith Law Office, P.C. v. Lawrence J. Cevelo and Carol L. Cevelo (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Apr 12 2016, 7:49 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Gregory B. Smith
Smith Law Office, P.C.
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Smith Law Office, P.C., April 12, 2016
Appellant-Plaintiff, Court of Appeals Case No.
18A05-1510-PL-1837
v. Appeal from the Delaware Circuit
Court
Lawrence J. Cevelo and Carol L. The Honorable John M. Feick,
Cevelo, Judge
Appellees-Defendants. Trial Court Cause No.
18C04-1402-PL-8
Robb, Judge.
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Case Summary and Issues
[1] Smith Law Office, P.C., (“Smith Law Office”) appeals the trial court’s order
denying its Amended Motion to Set Side Agreed Entry. On appeal, Smith Law
Office raises three issues for our review, which we consolidate and restate as (1)
whether the trial court committed reversible error when it received two letters
from an opposing party and did not provide Smith Law Office notice of, and an
opportunity to contest, the two letters, and (2) whether the trial court erred in
denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry.
Concluding there is no evidence in the record demonstrating the trial judge’s
impartiality was compromised as a result of the communications, and the trial
court did not abuse its discretion in denying Smith Law Office’s Amended
Motion to Set Aside Agreed Entry, we affirm.
Facts and Procedural History
[2] In 2010, Lawrence and Carol Cevelo employed Smith Law Office to provide
legal services regarding a real estate matter. After the case went to trial, the
Cevelos stopped making payments on the total balance due for the legal services
rendered. On February 14, 2014, Smith Law Office sued the Cevelos, alleging
the Cevelos committed fraud and owed Smith Law Office “the sum of
$12,977.10, plus interest at the statutory rate from December 31, 2013 . . . .”
Appellant’s Appendix at 20. The Cevelos proceeded pro se. On April 28, 2014,
the trial court entered its Order Granting Summary Judgment in favor of Smith
Law Office and awarded Smith Law Office $13,507.74, together with interest
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from December 31, 2013, at the statutory rate, and court costs of $151.00.
Thereafter, Smith Law Office filed a Motion for Proceedings Supplemental, and
the trial court scheduled a hearing.
[3] In January 2015, the parties convened before a Master Commissioner to be
heard on Smith Law Office’s Motion for Proceedings Supplemental. At the
hearing, Lawrence explained Social Security was the Cevelos’ only source of
income, and as a result, they had no means of paying Smith Law Office the full
judgment, stating, “Our fixed expenses on a monthly basis far exceed our
income, and we’ve been depending on my son and credit cards to keep a float
[sic] up to this point.” Transcript at 25. Thereafter, the Master Commissioner
asked Smith Law Office whether it would accept “$100.00 payments if [the
Cevelos] were willing to make consistent $100.00 payments on a monthly
basis” until the Cevelos’ income situation changed in a way that would allow
them to pay the judgment off in full. Id. at 28. Smith Law Office responded
affirmatively, stating, “[A]nything would work.” Id. at 28-29. The Cevelos also
agreed. The Master Commissioner then explained it could “put an agreed entry
in that [the Cevelos] would make $100.00 payments consistently on a monthly
basis, and if, then that doesn’t work out, we can come back, or you can file, you
know, a motion for writ of execution for the court’s consideration.” Id. at 30.
Again, Smith Law Office stated it would agree to those terms if the payments
started “immediately.” Id. On January 22, 2015, the trial court issued its
Agreed Entry on Proceedings Supplemental, stating in relevant part, “The
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[Cevelos] agree[] to pay $100 each month toward the judgment beginning in
January 2015.” Appellant’s App. at 24.
[4] In early June 2015, Smith Law Office filed a Motion to Set Aside Agreed Entry,
which the trial court denied on June 3.1 On June 12, 2015, the trial court
received a letter from the Cevelos. In the letter, the Cevelos argued the court
should not set aside the Agreed Entry. On September 1, 2015, Smith Law
Office filed an Amended Motion to Set Aside Agreed Entry, and the trial court
scheduled a hearing on the matter for October 16, 2015. On September 17,
2015, the trial court received correspondence from the Cevelos and the trial
court sent a copy of the correspondence to Smith Law Office. At the hearing,
Smith Law Office argued the Cevelos failed to make payments pursuant to the
Agreed Entry. In addition, Smith Law Office claimed the Cevelos retained
equity in their family home and by setting aside the Agreed Entry, the trial
court would allow Smith Law Office to “proceed against [the Cevelos’] real
estate.” Tr. at 42. On October 19, 2015, the trial court denied the motion.
Two days later, the trial court received at least one letter from the Cevelos.
Smith Law Office now appeals. Additional facts will be added as necessary.
1
The record does not contain the Motion to Set Aside the Agreed Entry, nor does it contain any description
of Smith Law Office’s argument in support of the motion.
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Discussion and Decision 2
I. Ex Parte Communications
[5] Smith Law Office argues the two letters authored by the Cevelos and sent only
to the trial court constituted improper ex parte communications that deprived
Smith Law Office of a fair proceeding. “A communication is ex parte if made
by a party outside the record without giving other parties notice or an
opportunity to contest.” Stillwell v. Deer Park Mgmt., 873 N.E.2d 647, 652 (Ind.
Ct. App. 2007) (emphasis and citation omitted), trans. denied. When there is an
allegation of ex parte communications, “we assume that judges will disqualify
themselves if there is any reasonable question concerning their impartiality.”
Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1301 n.5 (Ind. Ct.
App. 1997), trans. denied. Therefore, we will refuse to find error when there no
“evidence or testimony demonstrating that the trial judge’s impartiality was
compromised as a result of the communication . . . .” Id.[6] At the outset, we note the record does not include copies of the letters the
Cevelos sent to the trial court, and most, if not all, of Smith Law Office’s claims
and assertions are without citation to the record. The Chronological Case
2
We note the Cevelos did not file a brief in this case. When an appellee does not submit a brief, an appellant
may prevail by making a prima facie case of error. Vill. of Coll. Corner v. Town of W. Coll. Corner, 766 N.E.2d
742, 745 (Ind. Ct. App. 2002). We define prima facie in this context as “at first sight, on first appearance, or
on the face of it.” Id. (citation omitted). “Such a rule protects this Court and relieves it from the burden of
controverting arguments advanced for reversal, a duty that properly remains with the appellee.” Mitchell v.
Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007).
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Summary (“CCS”) indicates on June 12, 2015—three days after the trial court
denied Smith Law Office’s Motion to Set Aside Agreed Entry— the trial court
received a letter “from the [Cevelos] requesting that the Court not set aside the
agreed entry.” Appellant’s App. at 8. On September 17, 2015, the CCS
indicates the trial court received “correspondence” from the Cevelos, and a
copy of the correspondence was sent to Smith Law Office. Id. at 9. On
October 21, 2015—two days after the trial court denied Smith Law Office’s
Amended Motion to Set Aside Agreed Entry—the CCS indicates,
“Correspondence x 2 received from [the Cevelos] . . . . Letters placed in file;
unread by presiding judge.” Id. at 10.
[7] Based on the CCS, Smith Law Office neither received notice of, nor had an
opportunity to contest, the June 12 and October 21 letters. However, we note
the trial court received the June 12 letter, which argued the court should deny
Smith Law Office’s Motion to Set Aside Agreed Entry, after the trial court had
already denied that motion. In addition, the trial court received, but did not
read, the October 21 letter after the trial court had already denied Smith Law
Office’s Amended Motion to Set Aside Agreed Entry. Because both letters
were received after the trial court denied the motions, we conclude there is no
evidence in the record demonstrating the trial judge’s impartiality was
compromised as a result of the communications. See Morton, 682 N.E.2d at
1301 n.5.
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II. Agreed Entry
A. Standard of Review
[8] We interpret Smith Law Office’s Amended Motion to Set Aside Agreed Entry
as a motion for relief pursuant to Indiana Trial Rule 60(B)(8). We review a trial
court’s ruling on Rule 60(B) motions for an abuse of discretion. Wagler v. West
Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), trans. denied,
cert. denied, 134 S.Ct. 952 (2014). “An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances or if the decision is contrary to law.” Garrett v. Spear, 24 N.E.3d
472, 473-74 (Ind. Ct. App. 2014). “When reviewing a decision for an abuse of
discretion, we consider only the evidence and reasonable inferences favorable to
the judgment.” Lovold v. Ellis, 988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013). We
neither reweigh the evidence nor judge the credibility of the witnesses. Ramsey
v. Ramsey, 863 N.E.2d 1232, 1237 (Ind. Ct. App. 2007).
B. Amended Motion to Set Aside Agreed Entry
[9] Smith Law Office contends the trial court abused its discretion in denying its
Amended Motion to Set Aside Agreed Entry. Specifically, it argues the trial
court should have set aside the Agreed Entry because the Cevelos violated the
agreement in failing to make payments in January and July of 2015. 3 Indiana
3
In its brief, Smith Law Office also argues equity requires an Agreed Entry more favorable to its interests
because affirming the trial court’s denial would allow the Cevelos “to reap benefits from their wrongdoing by
avoiding the payment of all of the compensation owed to Smith Law Office, P.C.” Appellant’s Brief at 12.
Specifically, Smith Law Office contends the Cevelos lied about their assets during the proceedings
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Trial Rule 60(B)(8) provides a trial court may relieve a party from a judgment
for “any reason justifying relief from the operation of judgment . . . .” “The trial
court’s residual powers under subsection (8) may only be invoked upon a
showing of exceptional circumstances justifying extraordinary relief.” Wagler,
980 N.E.2d at 372 (citation omitted).
[10] Here, the Agreed Entry, dated January 22, 2015, provided the Cevelos would
“pay $100 each month toward the judgment beginning in January 2015.”
Appellant’s App. at 24. The record indicates the Cevelos made eight $100.00
payments to the Clerk’s Office on February 2, March 2, April 2, May 1, June 5,
June 29, August 3, and August 31. However, we are not persuaded these
alleged “erratic” payments violate the Agreed Entry. Id. at 27. The Agreed
Entry was dated January 22, 2015. This left the Cevelos, who indicated they
were in dire financial straits, only six business days to make a payment in
January. Although the Clerk’s Office did not record receiving a payment in
January, the first payment was recorded on February 2, which was the seventh
business day—and the first business day in February—following the issuance of
the Agreed Entry. As to the July payment, the Cevelos claimed the second
June payment was intended to cover the July payment. Tr. at 35.
supplemental in order to attain a more favorable payment plan. We acknowledge the trial court, in entering
judgment for Smith Law Office and awarding it damages, found the Cevelos fraudulently induced Smith
Law Office to represent them in the underlying litigation by concealing their inability to pay. At the
proceedings supplemental, however, both Lawrence and Carol testified to their inability to pay the full
judgment given their finances. Therefore, we interpret Smith Law Office’s argument as a request for this
court to reassess witness credibility, which we will not do. See Ramsey, 863 N.E.2d at 1237.
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[11] Ultimately, and pursuant to the Agreed Entry, the Cevelos were to pay $100.00
per month, which by August 2015 would total $800 in payments; Smith Law
Office concedes that by the end of August 2015, it received $800.00 from the
Cevelos. Appellant’s App. at 27. We are not persuaded Smith Law Office has
shown “exceptional circumstances justifying extraordinary relief.” Wagler, 980
N.E.2d at 372 (citation omitted). Smith Law Office has suffered no harm, and
we note it appears Smith Law Office is attempting to use the Cevelos’ alleged
violations of the Agreed Entry as an excuse to set aside the Agreed Entry
because it no longer finds the terms to which it agreed satisfactory. Based on
the record before us, we conclude the trial court did not abuse its discretion in
denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry.
Conclusion
[12] We conclude there is no evidence in the record demonstrating the trial judge’s
impartiality was compromised as a result of the letters it received from the
Cevelos. In addition, the trial court did not abuse its discretion in denying
Smith Law Office’s Amended Motion to Set Aside Agreed Entry. Accordingly,
we affirm.
[13] Affirmed.
Najam, J., and Crone, J., concur.
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