MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 25 2016, 6:33 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Segun Rasaki Mary Jane Lapointe Greencastle, Indiana Daniel LaPointe Kent Lapointe Law Firm, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Segun M. Rasaki, February 25, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1506-CT-774 v. Appeal from the Marion Superior Court Tammy Lynn, The Honorable Cynthia J. Ayers, Appellee-Plaintiff. Judge Trial Court Cause No. 49D04-1212-CT-46584
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Segun M. Rasaki (Rasaki), appeals the trial court’s denial
of his motion for relief from the summary judgment granted to Appellee-
Plaintiff, Tammy Lynn (Lynn).
[2] We affirm.
ISSUES
[3] Rasaki raises two issues on appeal, which we restate as: Whether the trial court
properly denied his motion for relief from judgment.
FACTS AND PROCEDURAL HISTORY
[4] On December 5, 2012, Lynn filed a Complaint that Rasaki, a licensed physician
practicing in Indiana, had committed medical malpractice, assault and battery,
and had intentionally or recklessly inflicted severe emotional distress. Lynn
asserted that while she sought treatment from Rasaki for ankle pain, Rasaki
touched her in a sexually inappropriate manner.
[5] Rasaki filed his Answer to the Complaint on April 5, 2013, pro se, and again on
April 10, 2013, while represented by counsel. A pretrial conference was held on
October 28, 2013, and trial was originally scheduled for March 25, 2014. Lynn
moved to compel discovery, and following a hearing, sanctions were awarded
against Rasaki for noncompliance. On April 16, 2014, Lynn filed her motion
for summary judgment, together with a memorandum and designation of
evidence. Rasaki did not file a response.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 2 of 7 [6] On August 11, 2014, the trial court conducted a hearing on Lynn’s motion for
summary judgment. As Rasaki “failed to respond to [Lynn’s] motion,” the trial
court entered summary judgment for Lynn. (Appellant’s App. p. 12). On
September 19, 2014, Rasaki, pro se, filed a motion to set aside/vacate the
summary judgment. On April 15, 2015, the trial court conducted a hearing on
the motion, at which Rasaki was represented by trial counsel and which Rasaki
attended via telephone. On June 15, 2015, the trial court denied Rasaki’s
motion and the case was set for a hearing on damages.
[7] Rasaki now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] While difficult to discern, it appears that the issue raised by Rasaki focuses on
the trial court’s decision to deny his motion for relief from judgment. However,
Rasaki is proceeding pro se, and we note that such litigants are held to the same
standards as trained counsel and are required to follow procedural rules. Evans
v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
[9] Our review of Rasaki’s Notice of Appeal reflects that the “Order being
Appealed” is the trial court’s “Order Denying Defendant’s Motion to Set
Aside/Vacate Judgment” of June 15, 2015. In so far as Rasaki now attempts to
raise arguments in his brief which relate in substance to the trial court’s entry of
summary judgment, his appeal as to that order is untimely. See Ind. Appellate
Rule 9. Moreover, in his appellant’s brief, Rasaki fails to present a cogent
argument with respect to the trial court’s order denying his motion for relief.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 3 of 7 Accordingly, his claims on appeal are waived. See Loomis v. Ameritech Corp., 764
N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to
provide cogent argument), reh’g denied, trans. denied.
[10] Waiver notwithstanding, we find that the trial court did not abuse its discretion
in denying Rasaki’s motion for relief from judgment. The trial court’s decision
to deny a party relief from judgment under Indiana Trial Rule 60(B) “is within
its sound, equitable discretion,” and is not subject to reversal unless there has
been an abuse of discretion. Stronger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002).
An abuse of discretion occurs when the trial court’s decision is clearly against
the logic and effect of the facts, or if the trial court misinterpreted the law. Jo.
W. v. Je. W., 952 N.E.2d 783, 785 (Ind. Ct. App. 2011). When reviewing the
trial court’s determination, we will not reweigh the evidence. Wagler v. West
Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), reh’g denied,
trans. denied, cert. denied, 134 S.Ct. 952 (2014). Indiana Trial rule 60(B) affords
relief in extraordinary circumstances which are not the result of any fault or
negligence on the part of the movant. Id. at 371-72. On a motion for relief
from judgment, the burden is on the movant to demonstrate that the relief is
both necessary and just. Id. at 372. A trial court must balance the alleged
injustice suffered by the moving party against the interests of the party who
prevailed and society’s interest in the finality of the judgment. Id.
[11] Indiana Trial Rule 60(B) provides in part:
Mistake—Excusable neglect—Newly discovered evidence— Fraud, etc. On motion and upon such terms as are just the court Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 4 of 7 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;
***
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs (1), (2), (3) and (4)
A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.
With respect to the requirement that the movant establish a meritorious claim
or defense, we observe that a meritorious defense for purposes of Indiana Trial
Rule 60(B) is “one that would lead to a different result if the case were tried on
the merits.” Wagler, 980 N.E.2d at 372. Also, the trial court’s residual powers
under subsection (8) may only be invoked upon a showing of exceptional
circumstances justifying extraordinary relief. Id. Moreover, a motion for relief
from judgment under T.R. 60(B) is not a substitute for a direct appeal. In re
Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). Indiana Trial Rule 60(B)
motions only address the procedural, equitable grounds justifying relief from
the legal finality of a final judgment, not the legal merits of the judgment.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 25 2016, 6:33 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Segun Rasaki Mary Jane Lapointe Greencastle, Indiana Daniel LaPointe Kent Lapointe Law Firm, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Segun M. Rasaki, February 25, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1506-CT-774 v. Appeal from the Marion Superior Court Tammy Lynn, The Honorable Cynthia J. Ayers, Appellee-Plaintiff. Judge Trial Court Cause No. 49D04-1212-CT-46584
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Segun M. Rasaki (Rasaki), appeals the trial court’s denial
of his motion for relief from the summary judgment granted to Appellee-
Plaintiff, Tammy Lynn (Lynn).
[2] We affirm.
ISSUES
[3] Rasaki raises two issues on appeal, which we restate as: Whether the trial court
properly denied his motion for relief from judgment.
FACTS AND PROCEDURAL HISTORY
[4] On December 5, 2012, Lynn filed a Complaint that Rasaki, a licensed physician
practicing in Indiana, had committed medical malpractice, assault and battery,
and had intentionally or recklessly inflicted severe emotional distress. Lynn
asserted that while she sought treatment from Rasaki for ankle pain, Rasaki
touched her in a sexually inappropriate manner.
[5] Rasaki filed his Answer to the Complaint on April 5, 2013, pro se, and again on
April 10, 2013, while represented by counsel. A pretrial conference was held on
October 28, 2013, and trial was originally scheduled for March 25, 2014. Lynn
moved to compel discovery, and following a hearing, sanctions were awarded
against Rasaki for noncompliance. On April 16, 2014, Lynn filed her motion
for summary judgment, together with a memorandum and designation of
evidence. Rasaki did not file a response.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 2 of 7 [6] On August 11, 2014, the trial court conducted a hearing on Lynn’s motion for
summary judgment. As Rasaki “failed to respond to [Lynn’s] motion,” the trial
court entered summary judgment for Lynn. (Appellant’s App. p. 12). On
September 19, 2014, Rasaki, pro se, filed a motion to set aside/vacate the
summary judgment. On April 15, 2015, the trial court conducted a hearing on
the motion, at which Rasaki was represented by trial counsel and which Rasaki
attended via telephone. On June 15, 2015, the trial court denied Rasaki’s
motion and the case was set for a hearing on damages.
[7] Rasaki now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] While difficult to discern, it appears that the issue raised by Rasaki focuses on
the trial court’s decision to deny his motion for relief from judgment. However,
Rasaki is proceeding pro se, and we note that such litigants are held to the same
standards as trained counsel and are required to follow procedural rules. Evans
v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
[9] Our review of Rasaki’s Notice of Appeal reflects that the “Order being
Appealed” is the trial court’s “Order Denying Defendant’s Motion to Set
Aside/Vacate Judgment” of June 15, 2015. In so far as Rasaki now attempts to
raise arguments in his brief which relate in substance to the trial court’s entry of
summary judgment, his appeal as to that order is untimely. See Ind. Appellate
Rule 9. Moreover, in his appellant’s brief, Rasaki fails to present a cogent
argument with respect to the trial court’s order denying his motion for relief.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 3 of 7 Accordingly, his claims on appeal are waived. See Loomis v. Ameritech Corp., 764
N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to
provide cogent argument), reh’g denied, trans. denied.
[10] Waiver notwithstanding, we find that the trial court did not abuse its discretion
in denying Rasaki’s motion for relief from judgment. The trial court’s decision
to deny a party relief from judgment under Indiana Trial Rule 60(B) “is within
its sound, equitable discretion,” and is not subject to reversal unless there has
been an abuse of discretion. Stronger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002).
An abuse of discretion occurs when the trial court’s decision is clearly against
the logic and effect of the facts, or if the trial court misinterpreted the law. Jo.
W. v. Je. W., 952 N.E.2d 783, 785 (Ind. Ct. App. 2011). When reviewing the
trial court’s determination, we will not reweigh the evidence. Wagler v. West
Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), reh’g denied,
trans. denied, cert. denied, 134 S.Ct. 952 (2014). Indiana Trial rule 60(B) affords
relief in extraordinary circumstances which are not the result of any fault or
negligence on the part of the movant. Id. at 371-72. On a motion for relief
from judgment, the burden is on the movant to demonstrate that the relief is
both necessary and just. Id. at 372. A trial court must balance the alleged
injustice suffered by the moving party against the interests of the party who
prevailed and society’s interest in the finality of the judgment. Id.
[11] Indiana Trial Rule 60(B) provides in part:
Mistake—Excusable neglect—Newly discovered evidence— Fraud, etc. On motion and upon such terms as are just the court Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 4 of 7 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;
***
(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs (1), (2), (3) and (4)
A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.
With respect to the requirement that the movant establish a meritorious claim
or defense, we observe that a meritorious defense for purposes of Indiana Trial
Rule 60(B) is “one that would lead to a different result if the case were tried on
the merits.” Wagler, 980 N.E.2d at 372. Also, the trial court’s residual powers
under subsection (8) may only be invoked upon a showing of exceptional
circumstances justifying extraordinary relief. Id. Moreover, a motion for relief
from judgment under T.R. 60(B) is not a substitute for a direct appeal. In re
Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). Indiana Trial Rule 60(B)
motions only address the procedural, equitable grounds justifying relief from
the legal finality of a final judgment, not the legal merits of the judgment. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 5 of 7 [12] The only recognizable claim made by Rasaki with respect to his T.R. 60(B)
motion is the argument of excusable neglect in that there was a breakdown in
communication between himself and his trial counsel. Under this rule,
excusable neglect includes a breakdown in communication that results in a
party’s failure to appear. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).
Appellant’s record contains the trial court’s notification, dated June 2, 2014,
sent to Rasaki’s address on record, as well as to his trial counsel, that a hearing
on Lynn’s motion for summary judgment was set for August 11, 2014. During
the hearing to set aside the judgment, Lynn’s counsel affirmed that he served
Rasaki’s trial counsel with his motion for summary judgment. However, from
the chronological case summary, it appeared that trial counsel never filed an
Answer to the motion for summary judgment and did not show up for the
hearing. Trial counsel never requested to be recused from the case, nor did the
trial court discharge him from the cause. During the hearing on the motion for
relief, trial counsel failed to articulate any reason as to why he did not respond
to the motion for summary judgment or for his failure to attend the hearing
thereon.
[13] Furthermore, even if we somehow were to construe an excusable breakdown of
communications, Rasaki failed to persuade us that based on the evidence before
us, he has a meritorious defense and a different result would be reached upon a
retrial of this cause. Accordingly, based on the record, we cannot say that the
trial court abused its discretion in denying Rasaki’s motion for relief from
judgment under T.R. 60(B).
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 6 of 7 CONCLUSION
[14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by denying Rasaki’s motion for relief from judgment.
[15] Affirmed.
[16] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016 Page 7 of 7