Staples The Office Superstore, Inc. and Zhejiang Haoguo Furniture Co. v. Gary Wright, M.D. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 18 2017, 8:54 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Randall W. Graff Nicholas C. Deets
Kopka Pinkus Dolin PC Hovde Dassow & Deets LLC
Carmel, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Staples The Office Superstore, December 18, 2017
Inc., Court of Appeals Case No.
Appellant-Defendant, 49A05-1705-CT-1118
Appeal from the Marion Superior
and Court
The Honorable David J. Dreyer,
Zhejiang Haoguo Furniture Co., Judge
Defendant, Trial Court Cause No.
49D10-1403-CT-6936
vs.
Gary Wright, M.D.,
Appellee-Plaintiff
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 1 of 9
Case Summary
[1] Gary Wright, M.D., was injured following the collapse of an office chair that he
purchased from Staples The Office Superstore (“Staples”). He filed a personal
injury action against Staples and the chair’s purported manufacturer, Zhejiang
Haoguo Furniture Company (“Haoguo”). Two years later, Wright sought and
obtained a default judgment against Staples and Haoguo. Staples filed a
motion to set aside default judgment pursuant to Indiana Trial Rule 60(B)(1)
and -(8). The trial court denied the motion, and Staples filed a motion to
correct error, or, in the alternative, a motion to set aside default judgment
pursuant to Trial Rule 60(B)(3). The trial court conducted a hearing, and the
motion to correct error was deemed denied thirty days thereafter pursuant to
Indiana Trial Rule 53.3(A). Staples then requested a ruling on its alternative
motion to set aside. The trial court denied Staples’ alternative motion to set
aside, and Staples now appeals.1 Wright has filed a motion to dismiss this
appeal as untimely. Finding that Staples has not appealed the court’s denial of
its motion to correct error and thus is not subject to the thirty-day deadline, we
deny Wright’s motion to dismiss. Finding that Staples is precluded from filing
successive Rule 60(B) motions, we affirm.
Facts and Procedural History
[2] In July 2010, Wright purchased a pre-assembled office chair from Staples. On
May 1, 2012, the chair collapsed, causing Wright to suffer injury to his knee.
1
Haoguo never defended the action below and is not participating in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 2 of 9
Wright notified Staples of his injury, and Staples instructed him to send the
chair and a copy of the sales receipt to Staples for inspection. Wright sent the
chair and receipt as instructed on June 6, 2012. Staples retained possession of
the chair throughout the proceedings.
[3] Believing itself to be the manufacturer of the defective chair, Haoguo agreed to
indemnify and defend Staples’ interests concerning the chair’s failure. Staples
informed Wright that Haoguo was the manufacturer of the chair and that
communication would be handled through Haoguo’s insurer and its
representative, “David Tan, CPCU, AMIM, Esq., TMCA, New York.”
Appellant’s App. Vol. 2 at 135. On February 21, 2014, Wright filed a personal
injury action against Staples and Haoguo. Because Haoguo is a Chinese
company, Wright filed a motion to appoint a special process server to serve the
complaint and summons. The trial court granted the motion, and Haoguo was
served on October 22, 2014. On January 23, 2015, Staples was served with a
complaint and alias summons. Throughout 2015, numerous emails were
traded between Wright’s counsel and Tan, with Tan indicating that Haoguo
wished to explore a settlement option before engaging legally. On November
24, 2015, Wright sent tender of demand to Tan to resolve his claim against
Haoguo. On December 1, 2015, Tan notified Wright’s counsel that Haoguo
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 3 of 9
would be denying all claims pertaining to Wright’s defective chair, asserting
that it was not the manufacturer of the chair.2
[4] As of February 2016, neither Staples nor Haoguo had entered an appearance in
Wright’s 2014 personal injury action. On February 18, 2016, Wright’s counsel
emailed Tan in pertinent part, “As an attorney, you are well aware of your
client’s obligations to appear and defend the case and your obligations to
Staples based on your acceptance of its tender.” Appellant’s App. Vol. 3 at 29.
On February 26, 2016, Wright filed a motion for default judgment. On March
2, 2016, the trial court issued an order of default judgment against Staples and
Haoguo. On April 14, 2016, the trial court conducted a hearing on damages
and entered judgment against defendants for $581,442.32.
[5] On July 14, 2016, Staples filed a Trial Rule 60(B) motion to set aside default
judgment, citing subparagraphs (1) (“mistake, surprise, or excusable neglect”)
and (8) (“any reason justifying relief” other than those specified in
subparagraphs (1) through (4)). On December 6, 2016, the trial court issued an
order denying Staples’ motion. On January 5, 2017, Staples filed a “Motion to
Correct Error Under T.R. 59, or in the Alternative, Motion to Set Aside Under
T.R. 60(B)(3)” (“fraud … or other misconduct by an adverse party”).
Appellant’s App. Vol. 3 at 13. The trial court conducted a hearing on Staples’
motion on February 22, 2017. On March 24, 2017, Staples’ motion to correct
2
The record is unclear at what point Haoguo notified Staples that it was not the manufacturer of the
defective chair. By the time Tan notified Wright that Haoguo was not the actual manufacturer, the statute of
limitations had expired.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 4 of 9
error was deemed denied for lack of ruling within thirty days after the hearing,
pursuant to Indiana Trial Rule 53.3(A). On April 24, 2017, Staples filed a
request for ruling on its second Rule 60(B) motion to set aside, which the trial
court denied in a summary order issued on May 1, 2017.
[6] On May 25, 2017, Staples filed a notice of appeal. Wright filed a motion to
dismiss this appeal as untimely, and the motions panel of this Court issued an
order holding the matter in abeyance for the writing panel.
Discussion and Decision
Section 1 – Because this appeal concerns the trial court’s
ruling on Staples’ second Trial Rule 60(B) motion rather than
its ruling on Staples’ motion to correct error, it is not subject
to dismissal as untimely.
[7] Wright has moved for dismissal of this appeal as untimely. “Unless the Notice
of Appeal is timely filed, the right to appeal shall be forfeited.” Ind. Appellate
Rule 9(A)(5). When a party has filed a motion to correct error, the time
limitations for filing an appeal after denial are governed by Trial Rule 53.3(A),
which reads in pertinent part,
In the event a court … fails to rule on a Motion to Correct Error
within thirty (30) days after it was heard …, the pending Motion
to Correct Error shall be deemed denied. Any appeal shall be
initiated by filing the notice of appeal under Appellate Rule 9(A)
within thirty (30) days after the Motion to Correct Error is
deemed denied.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 5 of 9
Here, confusion arose when Staples coupled its second Trial Rule 60(B) motion
with its motion to correct error. When the trial court conducted a hearing on
Staples’ motion to correct error on February 22, 2017, and did not issue a
ruling, the motion to correct error was deemed denied on March 24, 2017.
Staples thus had thirty days from the deemed denied date to initiate an appeal
on the motion to correct error, that is, a deadline of April 23, 2017. Staples did
not initiate an appeal on the motion to correct error but instead, one day after
the deadline, filed a request for a ruling on its alternative Rule 60(B) motion to
set aside default judgment.
[8] Staples maintains that the trial court’s May 1, 2017, denial of its alternative
motion to set aside, predicated on subparagraph (3), commenced the thirty-day
window for initiating an appeal, thus rendering timely its May 25, 2017, notice
of appeal. We agree. Trial Rule 60(B) states that a motion to set aside based on
reasons (1) through (4) shall be filed “not more than one year after the
judgment.” Our supreme court has “construe[d] Rule 60(B) to provide that all
such motions brought within one year after the entry of default or grant of
default judgment will be treated the same [and] … in no event should such a
motion be treated as a Rule 59 motion [to correct error].” Siebert Oxidermo, Inc.
v. Shields, 446 N.E.2d 332, 337 (Ind. 1983). Trial Rule 60(C) states that an
order denying relief on a motion filed under subdivision (B) shall be deemed
final, and an appeal may be taken therefrom.
[9] Simply put, this appeal involves Staples’ challenge to the court’s denial of its
second Trial Rule 60(B) motion. Staples does not appeal the trial court’s denial
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 6 of 9
of its motion to correct error, and as such, it was not bound by the deemed
denied date for its motion to correct error. Instead, the thirty-day window for
Staples’ appeal commenced on May 1, 2017, when the court denied its second
Rule 60(B) motion, and therefore, its May 25, 2017 notice of appeal was not
untimely. Consequently, we deny Wright’s motion to dismiss by separate
order.
Section 2 – The trial court acted within its discretion in
denying Staples’ second Trial Rule 60(B) motion.
[10] Staples challenges the trial court’s denial of its alternative Trial Rule 60(B)
motion to set aside default judgment. Trial Rule 60(B) provides a mechanism
for obtaining relief from default judgment under certain limited circumstances,
and the burden is on the movant to establish grounds for such relief. Seleme v.
JP Morgan Chase Bank, 982 N.E.2d 299, 303 (Ind. Ct. App. 2012), trans. denied
(2013). We review the trial court’s ruling on a Trial Rule 60(B) motion using an
abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885
N.E.2d 1265, 1270 (Ind. 2008). An abuse of discretion occurs only when the
trial court’s action is against the logic and effect of the facts before it and
inferences drawn therefrom. In re Paternity of P.S.S., 934 N.E.2d 737, 741 (Ind.
2010).
[11] Significantly, here, the appealed order denied Staples’ second Trial Rule 60(B)
motion, which raised an assertion not included in the original Rule 60(B)
motion. “A party may not file repeated [Trial Rule] 60 motions until he finally
either offers a meritorious ground for relief or exhausts himself and the trial
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 7 of 9
court in the effort to do so.” Carvey v. Ind. Nat’l Bank, 176 Ind. App. 152, 159,
374 N.E.2d 1173, 1177 (1978). Thus, unless the additional grounds for relief
were unknown and unknowable to the movant at the time he filed his first Rule
60(B) motion, they are not reviewable. Id.
[12] In Siebert Oxidermo, our supreme court addressed the issue of a party’s repeated
filing of motions for relief under Trial Rule 60(B). There, Oxidermo predicated
its original Rule 60(B) motion on excusable neglect under subparagraph (1), and
then, when the trial court denied its motion to set aside, filed a motion to
correct error that included new assertions of error, one of which was attorney
misconduct under subparagraph (3). The supreme court reasoned,
The misconduct of Shields’ attorney, if it occurred at all, was
certainly discoverable by Oxidermo when the June 28 Rule 60(B)
motion was filed. We do not believe Oxidermo should be
permitted to appeal the denial of the Rule 60(B) motion on
grounds that were available to it when that motion was filed but
were not raised until a later time when the Rule 59 motion was
filed.
446 N.E.2d at 342.
[13] Similarly, here, Staples predicated its first motion to set aside default judgment
on subparagraphs (1) and (8) of Trial Rule 60(B). In claiming excusable
neglect, Staples focused most of its argument on its alleged lack of notice about
Wright’s impending motion for default judgment. The email correspondence
between Tan and Wright’s counsel indicates the defendants’ awareness of their
duty, as named defendants, to appear and defend the personal injury action,
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 8 of 9
which had been filed two years earlier. The trial court adjudicated the notice
issue not only as it evaluated Staples’ first Rule 60(B) motion itself but also
during the hearing on its motion to correct error, which was predicated on the
denial of the first Rule 60(B) motion. In short, Staples’ second Rule 60(B)
motion and its briefs on appeal amount to attempts to rehash and repackage the
notice issue as misconduct and relitigate it under subparagraph (3). These
issues were not unknown and unknowable at the time of Staples’ first Rule
60(B) motion. Rather, they were known and litigated. As such, the trial court
acted within its discretion in denying Staples’ second Rule 60(B) motion.
Accordingly, we affirm.
[14] Affirmed.
Robb, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017 Page 9 of 9