MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 17 2016, 9:13 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE Stephen W. Thompson Cynthia A. Muse Darron S. Stewart State Farm Litigation Counsel Stewart & Stewart Attorneys Indianapolis, Indiana Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ocie Williams and May 17, 2016 Michael Williams, Court of Appeals Case No. Appellants-Plaintiffs, 32A05-1506-CT-552 Appeal from the Hendricks v. Superior Court The Honorable Stephenie LeMay- Queen Nails of Avon, LLC, Luken, Judge Appellee-Defendant. Trial Court Cause No. 32D05-1402-CT-17
May, Judge.
[1] Ocie and Michael Williams appeal a summary judgment for Queen Nails of
Avon and the denial of the Williamses’ motion for relief from judgment. We
affirm.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 1 of 8 Facts and Procedural History [2] In March 2012, Ocie Williams went to Queen Nails for a manicure. She was
familiar with the salon and had been there about ten times before. At some
point she went across the room to wash her hands. On her way back to the
manicure station, she tripped over a raised platform for a pedicure station.
There were no warning signs to indicate the platform was raised.
[3] The Williamses sued Queen Nails, and in December 2014 Queen Nails moved
for summary judgment. The Williamses’ counsel sought, and was granted, two
extensions of time to respond to that motion because he wanted to depose the
owner of Queen Nails. In April 2015, counsel left the law firm without taking
the deposition or informing other members of the firm of the deadline for
responding to the summary judgment motion.
[4] The deadline passed without any response from the Williamses as to Queen
Nails’ summary judgment motion, and the trial court granted summary
judgment for Queen Nails in May 2015. In November 2015, the Williamses
moved for relief from judgment, and the trial court denied their motion. It
found excusable neglect based on the actions of the Williamses’ counsel, but
found the Williamses “have no meritorious claim, [sic] they could have
presented in defense of the Summary Judgment Motion.” (App. at 10.)
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 2 of 8 Discussion and Decision Relief from Judgment
[5] We review the denial of a motion for relief from judgment under Indiana Trial
Rule 60(B) only for an abuse of discretion because such a motion is addressed
to the equitable discretion of the trial court. Goldsmith v. Jones, 761 N.E.2d 471,
473 (Ind. Ct. App. 2002), reh’g denied. An abuse of discretion will be found only
when the trial court’s judgment is clearly erroneous. Id. A trial court’s action is
clearly erroneous when it is against the logic and effect of the facts before it and
the inferences that may be drawn therefrom. Id. In ruling on a Rule 60(B)
motion, the trial court is required to balance the alleged injustice suffered by the
party moving for relief against the interest in the finality of litigation. Id. at 474.
[6] Rule 60(B) affords relief in extraordinary circumstances that are not the result of
any fault or negligence on the part of the movant. Id. The burden is on the
movant to establish grounds for relief. Id. A party seeking to set aside a default
judgment must establish not only grounds for relief under Rule 60(B), but also a
meritorious defense to the judgment. Bennett v. Andry, 647 N.E.2d 28, 34 (Ind.
Ct. App. 1995).
[7] A meritorious defense is one showing that if the case were retried on the merits,
there would be a different result. Id. at 35. A party seeking to set aside a
judgment must make a prima facie showing of a good and meritorious defense.
Id. It is not enough to merely allege that, but for excusable neglect, the action
would have been defended. Id.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 3 of 8 [8] In showing a meritorious defense, “the catalyst needed to obtain the proper
relief is some admissible evidence which may be in the form of an affidavit,
testimony of witnesses, or other evidence obtained through discovery.” Id.
(emphasis in original). Such admissible evidence must be presented to the trial
court that would indicate the judgment would not remain unchanged and “an
injustice would be foisted upon the defaulted party” if the judgment were
allowed to stand. Id.
[9] We acknowledge that panels of this court have not always required
“admissible” evidence. In Shane v. Home Depot USA, Inc., 869 N.E.2d 1232,
1238 (Ind. Ct. App. 2007), we reasoned that it was “well within the trial court’s
discretion to determine whether the amount and/or the nature of evidence
presented in support of a motion to set aside judgment indeed satisfies the
meritorious [claim] requirement of a prima facie showing.” Id. We noted the
preliminary nature of a prima facie showing and that acquisition and preparation
of admissible evidence during such initial stages of a case is especially difficult.
Id. “It is up to the trial court to determine on a case-by-case basis whether a
movant has succeeded in making a prima facie allegation.” Id.
[10] The Williamses did not satisfy either standard. In Shane, counsel provided an
affidavit stating there appeared to be defenses to both liability and damages.
The affidavit was accompanied by photographs of the area where Shane was
injured, an EMS report, and a nurse’s note. That, we held, was enough:
[Counsel’s] affidavit is based upon her review of photographs of the accident scene and Mr. Shane’s medical records, which were Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 4 of 8 the only documents available to her in the short time between her receipt of the case and the hearing. The Shanes do not suggest that these items, once authenticated, might be inadmissible at trial. In fact, the Shanes themselves produced the records and photographs to Gershman-Brown. With or without the admission of the documents referred to in the affidavit, the trial court acted well within its discretion in setting aside the default judgment against Gershman-Brown.
Id.
[11] In the case before us, by contrast, the trial court determined the Williamses had
no meritorious claim because their “entire argument regarding the meritorious
claim 1 is speculation based on a deposition that never occurred.” (App. at 11.)
That was not clearly erroneous.
[12] The Williamses’ new counsel submitted an affidavit that indicated what Queen
Nails’ defense might be, but unlike the affidavit in Shane, it was accompanied
by no evidence, admissible or otherwise. In Munster Cmty. Hosp. v. Bernacke, 874
N.E.2d 611, 614 (Ind. Ct. App. 2007), Bernacke did nothing more than make a
bald assertion that he “has a meritorious claim.” That, without more, was
insufficient to warrant reversal under Rule 60(B). Id.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 17 2016, 9:13 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE Stephen W. Thompson Cynthia A. Muse Darron S. Stewart State Farm Litigation Counsel Stewart & Stewart Attorneys Indianapolis, Indiana Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ocie Williams and May 17, 2016 Michael Williams, Court of Appeals Case No. Appellants-Plaintiffs, 32A05-1506-CT-552 Appeal from the Hendricks v. Superior Court The Honorable Stephenie LeMay- Queen Nails of Avon, LLC, Luken, Judge Appellee-Defendant. Trial Court Cause No. 32D05-1402-CT-17
May, Judge.
[1] Ocie and Michael Williams appeal a summary judgment for Queen Nails of
Avon and the denial of the Williamses’ motion for relief from judgment. We
affirm.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 1 of 8 Facts and Procedural History [2] In March 2012, Ocie Williams went to Queen Nails for a manicure. She was
familiar with the salon and had been there about ten times before. At some
point she went across the room to wash her hands. On her way back to the
manicure station, she tripped over a raised platform for a pedicure station.
There were no warning signs to indicate the platform was raised.
[3] The Williamses sued Queen Nails, and in December 2014 Queen Nails moved
for summary judgment. The Williamses’ counsel sought, and was granted, two
extensions of time to respond to that motion because he wanted to depose the
owner of Queen Nails. In April 2015, counsel left the law firm without taking
the deposition or informing other members of the firm of the deadline for
responding to the summary judgment motion.
[4] The deadline passed without any response from the Williamses as to Queen
Nails’ summary judgment motion, and the trial court granted summary
judgment for Queen Nails in May 2015. In November 2015, the Williamses
moved for relief from judgment, and the trial court denied their motion. It
found excusable neglect based on the actions of the Williamses’ counsel, but
found the Williamses “have no meritorious claim, [sic] they could have
presented in defense of the Summary Judgment Motion.” (App. at 10.)
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 2 of 8 Discussion and Decision Relief from Judgment
[5] We review the denial of a motion for relief from judgment under Indiana Trial
Rule 60(B) only for an abuse of discretion because such a motion is addressed
to the equitable discretion of the trial court. Goldsmith v. Jones, 761 N.E.2d 471,
473 (Ind. Ct. App. 2002), reh’g denied. An abuse of discretion will be found only
when the trial court’s judgment is clearly erroneous. Id. A trial court’s action is
clearly erroneous when it is against the logic and effect of the facts before it and
the inferences that may be drawn therefrom. Id. In ruling on a Rule 60(B)
motion, the trial court is required to balance the alleged injustice suffered by the
party moving for relief against the interest in the finality of litigation. Id. at 474.
[6] Rule 60(B) affords relief in extraordinary circumstances that are not the result of
any fault or negligence on the part of the movant. Id. The burden is on the
movant to establish grounds for relief. Id. A party seeking to set aside a default
judgment must establish not only grounds for relief under Rule 60(B), but also a
meritorious defense to the judgment. Bennett v. Andry, 647 N.E.2d 28, 34 (Ind.
Ct. App. 1995).
[7] A meritorious defense is one showing that if the case were retried on the merits,
there would be a different result. Id. at 35. A party seeking to set aside a
judgment must make a prima facie showing of a good and meritorious defense.
Id. It is not enough to merely allege that, but for excusable neglect, the action
would have been defended. Id.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 3 of 8 [8] In showing a meritorious defense, “the catalyst needed to obtain the proper
relief is some admissible evidence which may be in the form of an affidavit,
testimony of witnesses, or other evidence obtained through discovery.” Id.
(emphasis in original). Such admissible evidence must be presented to the trial
court that would indicate the judgment would not remain unchanged and “an
injustice would be foisted upon the defaulted party” if the judgment were
allowed to stand. Id.
[9] We acknowledge that panels of this court have not always required
“admissible” evidence. In Shane v. Home Depot USA, Inc., 869 N.E.2d 1232,
1238 (Ind. Ct. App. 2007), we reasoned that it was “well within the trial court’s
discretion to determine whether the amount and/or the nature of evidence
presented in support of a motion to set aside judgment indeed satisfies the
meritorious [claim] requirement of a prima facie showing.” Id. We noted the
preliminary nature of a prima facie showing and that acquisition and preparation
of admissible evidence during such initial stages of a case is especially difficult.
Id. “It is up to the trial court to determine on a case-by-case basis whether a
movant has succeeded in making a prima facie allegation.” Id.
[10] The Williamses did not satisfy either standard. In Shane, counsel provided an
affidavit stating there appeared to be defenses to both liability and damages.
The affidavit was accompanied by photographs of the area where Shane was
injured, an EMS report, and a nurse’s note. That, we held, was enough:
[Counsel’s] affidavit is based upon her review of photographs of the accident scene and Mr. Shane’s medical records, which were Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 4 of 8 the only documents available to her in the short time between her receipt of the case and the hearing. The Shanes do not suggest that these items, once authenticated, might be inadmissible at trial. In fact, the Shanes themselves produced the records and photographs to Gershman-Brown. With or without the admission of the documents referred to in the affidavit, the trial court acted well within its discretion in setting aside the default judgment against Gershman-Brown.
Id.
[11] In the case before us, by contrast, the trial court determined the Williamses had
no meritorious claim because their “entire argument regarding the meritorious
claim 1 is speculation based on a deposition that never occurred.” (App. at 11.)
That was not clearly erroneous.
[12] The Williamses’ new counsel submitted an affidavit that indicated what Queen
Nails’ defense might be, but unlike the affidavit in Shane, it was accompanied
by no evidence, admissible or otherwise. In Munster Cmty. Hosp. v. Bernacke, 874
N.E.2d 611, 614 (Ind. Ct. App. 2007), Bernacke did nothing more than make a
bald assertion that he “has a meritorious claim.” That, without more, was
insufficient to warrant reversal under Rule 60(B). Id. The same is true in this
1 In their motion, the Williamses alleged only that their neglect was excusable - they did not address, or even mention, the meritorious claim requirement. In a memorandum that accompanied the motion, the Williamses assert a meritorious defense, but support that assertion with only an allegation counsel “was diligently working . . . to arrange the deposition” of the shop owner in order to “substantiate this meritorious claim.” (App. at 69.)
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 5 of 8 case. The trial court did not abuse its discretion in denying relief from
judgment.
Summary Judgment
[13] On review of a motion for summary judgment, our standard is the same as that
of the trial court: summary judgment is appropriate only where the evidence
shows there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. City of Beech Grove v. Beloat, No. 49S02-1604-
CT-165, 2016 WL 1329559, at *2 (Ind. 2016). The facts and reasonable
inferences are construed in favor of the non-moving party. Id. The court may
rely only on the evidence the parties designated, id., and on appeal we consider
only those matters that were designated at the summary judgment stage of the
proceedings. U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 922 (Ind. Ct. App.
1999), trans. denied. Summary judgment is not appropriate just because the non-
movant appears unlikely to prevail at trial. Beloat, No. 49S02-1604-CT-165,
2016 WL 1329559, at *2. Instead, we err on the side of letting marginal cases
proceed to trial on the merits, rather than risk short-circuiting meritorious
claims. Id.
[14] The grant of Queen Nails’ summary judgment motion was not error, as the
Williamses did not show there was a genuine issue of fact for trial. In their
brief, the Williamses direct us to a page in Ocie Williams’ deposition that they
characterize as testimony that “warning signs, such as ‘height’ and ‘step,’ or
‘caution’ should have been posted either on the wall next to the area or on the
edge of the platform.” (Appellants’ Br. at 16.) But that part of the deposition Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 6 of 8 was not specifically designated to the trial court; we therefore cannot find a
genuine issue of fact. 2
[15] Trial Rule 56(C) requires specific designation of each material issue of fact that
a party asserts precludes entry of summary judgment and the evidence relevant
thereto. The purpose of that requirement is to decrease the amount of
evidentiary material trial courts are required to sift through in ruling on
summary judgment motions. O’Connor by O’Connor v. Stewart, 668 N.E.2d 720,
721-22 (Ind. Ct. App. 1996). Neither the trial court nor this court on appeal
may look beyond the evidence specifically designated to the trial court in ruling
on a motion. Id. at 722. Designating various pleadings, discovery material,
and affidavits in their entirety does not meet the specificity requirement of Rule
56(C). Id. Unless a document in its entirety is required as designated
evidentiary matter, regardless of how concise or short the document is, in order
to be properly designated, specific reference to the relevant portion of the
document must be made. Id. Rule 56(H) provides: “No judgment rendered on
the motion shall be reversed on the ground that there is a genuine issue of
material fact unless the material fact and the evidence relevant thereto shall
have been specifically designated to the trial court.”
2 In its brief, Queen Nails directs us to its designation, which does not include the page on which the Williamses rely. The Williamses did not submit a reply brief or otherwise respond to that statement in the Queen Nails’ brief.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 7 of 8 [16] As the designated evidence did not reveal a genuine issue of fact, summary
judgment for Queen Nails was not error.
Conclusion [17] The denial of the Williamses’ motion for relief from judgment was not error, as
they did not show they had a meritorious claim. Queen Nails was entitled to
summary judgment because no designated evidence demonstrated a genuine
issue of fact for trial. We accordingly affirm the trial court.
[18] Affirmed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016 Page 8 of 8