Caroline Briggs v. Abdullah Alkhalidi (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 11 2015, 9:50 am
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 APPELLEE PRO SE
Caroline B. Briggs Abdullah Alkhalidi
Lafayette, Indiana New Castle Prison
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Caroline Briggs, December 11, 2015
Appellant-Defendant, Court of Appeals Case No.
46A04-1505-PL-358
v. Appeal from the LaPorte Circuit
Court
Abdullah Alkhalidi, The Honorable Thomas Alevizos,
Appellee-Plaintiff Judge
Trial Court Cause No.
46C01-1302-PL-312
Crone, Judge.
Case Summary
[1] Abdullah Alkhalidi filed a malpractice complaint against attorney Caroline
Briggs alleging that she had breached their agreement by failing to file a post-
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conviction relief (“PCR”) petition on his behalf. He requested reimbursement
of $4000 in fees plus $5000 in punitive damages. Briggs allegedly was not
served with the complaint and did not file a response. Alkhalidi filed a motion
for entry of default. The trial court granted the motion and entered a default
judgment against Briggs for $9000.
[2] One month later, Briggs’s mother, who is also an attorney, filed a motion to set
aside judgment on Briggs’s behalf because Briggs was out of town. The trial
court denied the motion without a hearing. Almost one year after that, Briggs
filed a successive motion alleging additional grounds for relief from the default
judgment. The trial court denied the motion without a hearing. Briggs filed a
motion to correct error, which the trial court denied except as to the punitive
damages award, which it vacated.
[3] On appeal, Briggs contends that the trial court erred in denying her successive
motion for relief without a hearing. We disagree and therefore affirm.
Facts and Procedural History
[4] In March 2011, Alkhalidi wrote a letter to Briggs inquiring about possible legal
representation in a PCR proceeding for his murder conviction. Fee
negotiations ensued, and Briggs was paid $4000. In February 2013, Alkhalidi
filed a malpractice complaint against Briggs alleging that she had breached their
agreement by failing to file a PCR petition on his behalf. He requested
reimbursement of $4000 in fees plus 8% interest and punitive damages of $5000.
Apparently, Alkhalidi did not submit a filing fee with his complaint, and in
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March 2013 he filed a motion to proceed in forma pauperis. In May 2013, the
trial court issued an order giving Alkhalidi an additional forty-five days to
comply, presumably with filing requirements, at the risk of dismissal. On
August 1, 2013, the trial court issued an order finding that Alkhalidi’s filing fee
had been paid in full. 1
[5] The chronological case summary (“CCS”) indicates that “Service with
Complaint” was issued to Briggs via certified mail on August 8, 2013, and that
“G Ayers” signed a certified mail receipt at Briggs’s office address on August
12, 2013. Appellant’s App. at 2. On September 16, 2013, Alkhalidi filed a
motion for entry of default. 2 On September 25, 2013, the trial court issued an
order granting the motion and entering judgment against Briggs for $9000.
1
Briggs claims that she did not receive notice that the complaint and the fee-related documents had been
filed. She cites no authority, however, that she was entitled to such notice.
2
Briggs states that the CCS does not indicate that she was served with a copy of the motion. Indiana Trial
Rule 5(A) provides in pertinent part, “No service need be made on parties in default for failure to appear[.]”
“[T]he expression ‘in default for failure to appear’ does not mean that the party has been ‘defaulted’ (i.e., has
been judicially declared to be in default), but merely that he has not yet made an appearance in the prescribed
manner.” Cordill v. City of Indianapolis Through Dep’t of Parks & Recreation, 168 Ind. App. 685, 692, 345 N.E.2d
274, 278 (1976), trans. denied.
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[6] On October 25, 2013, Briggs’s mother filed a motion to set aside judgment,
presumably pursuant to Indiana Trial Rule 60(B), 3 that reads in relevant part,
On October 25, 2013, an Order for default judgment was
received by the office of Caroline Briggs. Although the envelope
is postmarked September 30, 2013, it is crumpled and torn and
just received this date. Caroline Briggs is on fall break vacation
out of the state and has not seen the entry received today. That
to the best of the knowledge of the undersigned, Caroline Briggs
had no notice of the filing of this lawsuit; however, Caroline
Briggs has discovered multiple problematic issues regarding
several client files since the departure of her former assistant, and
she has been working very hard to identify and correct those
issues including working with a new assistant.
Further, under Trial Rule 75, Tippecanoe County would have
been the county of preferred venue, and had Caroline Briggs been
3
Trial Rule 60(B) reads in pertinent part,
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;
(2) any ground for a motion to correct error, including without limitation newly discovered
evidence, which by due diligence could not have been discovered in time to move for a
motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party;
(4) entry of default or judgment by default was entered against such party who was served
only by publication and who was without actual knowledge of the action and judgment,
order or proceedings;
(5) [applies to cases in which the record fails to show that such party was represented by a
guardian or other representative];
(6) the judgment is void;
(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; 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 motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more
than one year after the judgment, order or proceeding was entered or taken for reasons (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.
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aware of this suit, she would have requested a change to
Tippecanoe County as both her office and residence are in
Tippecanoe County.
That the undersigned is the mother of Caroline Briggs and is also
an attorney and is entering this special appearance for Caroline
Briggs until she returns from fall break with her son and can
address these issues herself. That this Motion is being sent at the
first notice that Caroline Briggs had of any proceedings in this
matter.
Id. at 18-19.
[7] Alkhalidi did not file a response to the motion, and the trial court did not hold a
hearing on it. On October 29, 2013, the court entered an order denying the
motion, finding that Briggs had waived the venue issue and failed to allege a
meritorious claim or defense. Id. at 20. Briggs did not appeal that order.
[8] Nearly one year later, on September 25, 2014, Briggs filed a successive motion
for relief from Alkhalidi’s default judgment and for leave to file a counterclaim.
In her motion, she asserted that Alkhalidi’s communications with her were
“inconsistent” and “led to confusion”; that she “completed the attorney work
for which she was compensated” and “is owed time spent for which she has yet
to be compensated”; that she was unaware that he had filed the malpractice
complaint until after the default judgment was entered; that her secretary, Gail
Ayers, did not sign the certified mail receipt; that Alkhalidi was not entitled to
punitive damages; and that “a successful result was obtained” in a disciplinary
proceeding that Alkhalidi had filed against her. Id. at 24, 27, 29. Briggs
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submitted exhibits and affidavits in support of her motion and requested “a
hearing to determine the veracity of [Alkhalidi’s] damages” pursuant to Trial
Rule 55(B). 4 Id. at 30.
[9] Alkhalidi, by counsel, filed a response to Briggs’s successive motion. The trial
court did not hold a hearing on the motion. In March 2015, the court issued an
order denying the motion that reads in relevant part as follows:
1. Said motion should be denied on the basis that it is (A) a
[successive] motion, (B) provides documentation and argument
that through due diligence could have been submitted to this
court at the time of the original motion to set aside the Default
Judgment on October 29 [sic], 2013, and (C) prejudices Plaintiff
in that Plaintiff had retained counsel herein to collect on the
Judgment and/or negotiate [sic] settlement in this matter prior to
said successive motion being filed.
2. As with the Defendant’s first Trial Rule 60(B) motion, the
successive motion does not state which sub-paragraph of Rule
60(B) under which Defendant is seeking relief, but said motion,
even if it were not successive, was not submitted within a
“reasonable time” as required pursuant to Trial Rule 60(B)
subparagraphs (5) (6) (7) and (8); does not present newly
discovered evidence that could not have been discovered through
due diligence pursuant to sub-paragraph (2).
4
Trial Rule 55(B) states in pertinent part,
If, in order to enable the court to enter [default] judgment or to carry it into effect, it is necessary
to take an account or to determine the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other matter, the court may conduct
such hearing or order such references as it deems necessary and proper and shall accord a right
of trial by jury to the parties when and as required.
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Id. at 6.
[10] Briggs filed a motion to correct error, which the trial court ultimately granted
only as to the punitive damages award, which was vacated. Briggs now
appeals.
Discussion and Decision
[11] Briggs asserts that the trial court erred in denying her successive Trial Rule
60(B) motion. Our supreme court has stated, “‘A party may not file repeated
TR 60 motions until he either offers a meritorious ground for relief or exhausts
himself 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, 176 Ind.
App. 152, 159, 374 N.E.2d 1173, 1177 (1978)). “[E]rror 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 he
made the first Rule 60(B) motion.” Id. The trial court’s ruling on a Rule 60(B)
motion “is entitled to deference and will be reviewed for abuse of discretion.”
State Farm Mut. Ins. Co. v. Hughes, 808 N.E.2d 112, 116 (Ind. Ct. App. 2004).
“The trial court should use its discretion to do what is ‘just’ in light of the
unique facts of each case. However, such discretion should be exercised in light
of the disfavor in which default judgments are held. Id. (citation omitted).
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[12] Briggs first contends that the trial court erred in denying her motion without a
hearing pursuant to Trial Rule 60(D). 5 But she cites no authority that a party is
entitled to a hearing on a successive Rule 60(B) motion. Cf. Ind. Trial Rule
53.4(A) (“No hearing shall be required upon a repetitive motion or upon
motions to reconsider orders or rulings upon a motion.”). Our supreme court
has stated,
[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. Where the grounds
for the Rule 60(B) motion are covered in subparagraphs (1)
through (4) of Rule 60(B), the party has up to one year from the
date of the entry of default or grant of default judgment to make
such motion. Ind. R. Tr. P. 60. We do not wish to encourage
defendants to hastily file a Rule 60(B) motion as soon as they
discover one ground for relief under the Rule and then take their
time about discovering and raising other Rule 60(B) grounds and
bombarding the court with more such motions.
Siebert Oxidermo, 446 N.E.2d at 338-39.
[13] That is precisely what happened here. Briggs’s mother hastily filed a Rule
60(B) motion on Briggs’s behalf when she allegedly first received notice of the
default judgment and stated that she was entering a special appearance until
Briggs returned “from fall break with her son and [could] address these issues
5
Trial Rule 60(D) states, “In passing upon a motion allowed by subdivision (B) of this rule the court shall
hear any pertinent evidence, allow new parties to be served with summons, allow discovery, grant relief as
provided under Rule 59 or otherwise as permitted by subdivision (B) of this rule.”
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herself.” Appellant’s App. at 19. Briggs never addressed those issues, such as
by filing an amended motion, and she never appealed the trial court’s denial of
the original motion or challenged its failure to hold a hearing on it. She then
waited almost a year to raise additional Rule 60(B) grounds and burdened the
trial court with a second motion. Under the unique facts of this case, we find
no abuse of discretion in the trial court’s failure to hold a hearing on that
motion.
[14] And although the grounds raised in the second motion might have been
unknown when the first motion was filed, they were neither unknowable nor
undiscoverable. The fact that Briggs was on fall break with her son when her
mother filed the first motion is irrelevant. Therefore, we conclude that the trial
court did not abuse its discretion in denying the second motion. See Siebert
Oxidermo, 446 N.E.2d at 338 (finding no error in denial of successive Rule 60(B)
motions, where the “additional grounds for relief alleged” therein “were either
discoverable at the time the first Rule 60(B) motion was filed” or improper after
entry of default judgment). Consequently, we affirm. 6
[15] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
6
Briggs makes no specific argument regarding her request for leave to file a counterclaim, so we do not
address that issue.
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