Keianna Rae Harrison v. Cynthia L. Wells

• Court: Indiana Court of Appeals
• Decided: November 6, 2013
• Docket: 49A02-1303-CC-265
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Nov 06 2013, 5:36 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

TREZANAY M. ATKINS MICHAEL A. SCHOENING tmalaw llc Nation Schoening Moll, P.C. Indianapolis, Indiana Fortville, Indiana

IN THE COURT OF APPEALS OF INDIANA

KEIANNA RAE HARRISON, ) ) Appellant, ) ) vs. ) No. 49A02-1303-CC-265 ) CYNTHIA L. WELLS, ) ) Appellee. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cause No. 49D06-1103-CC-12449

November 6, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

Keianna Rae Harrison (“Harrison”) appeals the denial of her Indiana Trial Rule 60(B)

motion for relief from a default judgment entered in favor of Cynthia L. Wells (“Wells”).

Harrison presents one issue for our review; we address the dispositive issue raised by Wells:

whether Harrison preserved her right to appellate review of the trial court’s denial of her

motion for relief from the default judgment.

We dismiss.

Facts and Procedural History

In 2009, Harrison entered into a contract (“the Lease”) to rent from Wells a property at

517 East New York Street, in Indianapolis. In 2011, Wells sued Harrison under the Lease

claiming, inter alia, that: Harrison had vacated the property before the end of the Lease;

Wells had been unable to re-lease the property; and Wells thus was entitled to damages under

the Lease. On March 28, 2012, the trial court conducted a bench trial at which Harrison

failed to appear. On April 3, 2012, the trial court entered findings of fact, conclusions of

law, and a default judgment against Harrison.

On April 16, 2012, Harrison, proceeding pro se, filed a motion for relief from the

default judgment under Indiana Trial Rule 60(B)(1) for excusable neglect,1 asserting that she

had been “hospitalized at St. Vincent Women’s Center and [had been] unable to attend [the]

trial.” (App. at 33-34.) The trial court denied the motion the same day.

1 The motion, styled as a “Verified Motion to Set Aside Default Judgment,” did not articulate a specific trial rule. However, the substance of the motion is most appropriately characterized as invoking Trial Rule 60(B)(1).

2 Apparently unaware that the trial court had denied the motion, Harrison filed an

identical motion on November 21, 2012, accompanied by a letter asking the trial court to

consider the motion. The record is silent as to whether the trial court disposed of this second

motion, and thus it is deemed denied. See Ind. Trial Rule 53.4 (unless a repetitive motion is

ruled upon within five days, it shall be deemed denied).

On February 11, 2013, Harrison, by counsel, filed another motion for relief from the

default judgment under Trial Rule 60(B)(1), still asserting excusable neglect, but also making

an assertion of mistake and alleging a meritorious defense. The trial court denied this motion

on February 20, 2013, and Harrison filed a notice of appeal on March 20, 2013.

Discussion and Decision

“A party initiates an appeal by filing a Notice of Appeal with the Clerk (as defined in

Rule 2(D)) within thirty (30) days after the entry of a Final Judgment is noted in the

Chronological Case Summary.” Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal

is timely filed, the right to appeal shall be forfeited[.]” App. R. 9(A)(5). And repetitive

motions do not extend the time within which a notice of appeal may be filed. See T.R.

53.4(A).

A trial court’s order denying a Trial Rule 60(B) motion for relief from a default

judgment is a final judgment from which a party may appeal. T.R. 60(C). “It is well

established that a [Trial Rule] 60(B) motion may not serve as a substitute for direct appeal.”

Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 863 (Ind. Ct. App. 2011), trans. denied.

“‘A party may not file repeated [Trial Rule] 60 motions until [s]he either offers a meritorious

3 ground for relief or exhausts [her]self and the trial court in an effort to do so.’” Siebert

Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 338 (Ind. 1983) (quoting Carvey v. Ind. Nat’l

Bank, 374 N.E.2d 1173, 1177 (Ind. Ct. App. 1978)). “[T]o sanction the repetitive filing of

Rule 60(B) motions by a party suffering a default judgment is to encourage defaulted

defendants to drag their feet and be dilatory in discovering grounds for setting aside a default

judgment.” Id. Yet, “error alleged in a second Rule 60(B) motion may be considered in an

appeal if the grounds for that additional error were unknown and unknowable to the movant

at the time [s]he made the first Rule 60(B) motion.” Id. (citing Carvey, 374 N.E.2d at 1177-

80).

The trial court’s April 16, 2012 order denying the first motion for relief from the

default judgment was an appealable, final judgment. See T.R. 60(C). Therefore, to preserve

her right to appellate review, Harrison was required to file a notice of appeal within thirty

days of the April 16, 2012 order. See App. R. 9(A)(1).

The second motion for relief from the default judgment was identical to the first, and

thus it did not extend the time within which Harrison could file a notice of appeal. See T.R.

53.4(A); see also Weinreb, 943 N.E.2d at 863.

The third motion made the same assertion of excusable neglect, but also alleged a

meritorious defense and asserted a claim of mistake premised on Harrison’s purported

misunderstanding, as a pro se litigant, of the requirement to allege a meritorious defense in

her previous motions. However, because Trial Rule 60(B) requires that a movant who files a

Trial Rule 60(B)(1) motion also allege a meritorious defense, the allegation of a meritorious

4 defense in the third motion is not a new assertion. And because we hold pro se litigants to

the same standard as licensed attorneys, In re Estate of Carnes, 866 N.E.2d 260, 265 (Ind. Ct.

App. 2007), we conclude that the grounds for the claim of mistake in the third motion were

not unknown and unknowable to Harrison when she filed the first motion. The third motion

for relief from the default judgment thus did not extend the time within which Harrison could

file a notice of appeal. See T.R. 53.4(A); see also Weinreb, 943 N.E.2d at 863.

Harrison failed to file a notice of appeal within thirty days of the April 16, 2012 order.

Therefore, she has forfeited her right to appeal the trial court’s denial of her motion for relief

from the default judgment. See App. R. 9(A)(5).

Dismissed.

MAY, J., and BRADFORD, J., concur.