Janet Freels v. James F. Koches and Sunset Builders, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 06 2018, 9:42 am
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
Christopher P. Phillips Steven Knecht
Phillips Law Office P.C. Vonderheide & Knecht, P.C.
Monticello, Indiana Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Janet Freels, February 6, 2018
Appellant-Plaintiff, Court of Appeals Case No.
91A04-1708-SC-1990
v. Appeal from the White Superior
Court
James F. Koches and Sunset The Honorable Robert B. Mrzlack,
Builders, Inc., Judge
Appellee-Defendant. Trial Court Cause No.
91D01-1602-SC-82
Najam, Judge.
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Statement of the Case
[1] Janet Freels appeals the small claims court’s denial of her Indiana Trial Rule
60(B)(2) motion for relief from judgment.1 Freels raises a single issue for our
review, which we restate as whether the court abused its discretion when it
denied her motion for relief from judgment. As Freels filed her motion outside
the one-year timeframe required by Trial Rule 60(B), we affirm the court’s
denial of her motion.
Facts and Procedural History
[2] In February of 2016, Freels filed a small-claims action against James F. Koches
and Sunset Builders, Inc. (collectively, “Sunset”).2 On May 9, the court entered
its order for Sunset and against Freels. More than one year later, on May 22,
2017, Freels filed her Trial Rule 60(B)(2) motion for relief from the May 9,
2016, judgment. Freels further requested that the small claims court transfer
her case to the court’s plenary docket and consolidate it with a separate civil
action she had recently filed on that docket against Sunset. The small claims
court denied Freels’ Trial Rule 60(B)(2) motion, and this appeal ensued.
1
Freels’ brief and construction of the record on appeal conflate her appeal from the small claims court’s
denial of her motion for relief from judgment in 91D01-1602-SC-82 with her appeal from the White Superior
Court’s final judgment in 91D01-1703-PL-11. But Freels has not requested that this Court consolidate those
two proceedings and judgments into one appeal. As such, we have separately addressed each appeal and
have partitioned our review of the record and the briefs accordingly.
2
Freels has not included the chronological case summary in the record on appeal, contrary to Indiana
Appellate Rule 50(A)(2)(a). Nonetheless, the dates relevant to this appeal are not disputed.
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Discussion and Decision
[3] Freels appeals the small claims court’s denial of her motion for relief from
judgment. According to the Indiana Supreme Court:
The burden is on the movant to establish ground for Trial Rule
60(B) relief. A motion made under subdivision (B) of Trial Rule
60 is addressed to the “equitable discretion” of the trial court; the
grant or denial of the Trial Rule 60(B) motion “will be disturbed
only when that discretion has been abused.” An “[a]buse of
discretion will be found only when the trial court’s action is
clearly erroneous, that is, against the logic and effect of the facts
before it and the inferences which may be drawn therefrom.”
Smith v. Smith (In re P.S.S.), 934 N.E.2d 737, 740-41 (Ind. 2010) (citations
omitted; alteration original to Smith). Trial Rule 60(B)(2) provides that a party
may move to be relieved from a prior judgment on the basis of newly
discovered evidence that by due diligence could not have been discovered in
time for a motion to correct error under Trial Rule 59. However, Trial Rule
60(B) further declares that such a motion “shall be filed . . . not more than one
year after the judgment . . . was entered . . . .”
[4] Freels filed her May 22, 2017, motion for relief from judgment under Trial Rule
60(B)(2) more than one year after the small claims court entered its May 9,
2016, judgment against her. Accordingly, Freels’ motion for relief from
judgment under Trial Rule 60(B)(2) was untimely. Indeed, Freels provides no
argument, let alone argument supported by cogent reasoning, to the contrary on
appeal. See Ind. Appellate Rule 46(A)(8)(a). As such, the small claims court
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did not err when it denied Freels’ untimely motion for relief from judgment
under Trial Rule 60(B)(2), and we affirm the court’s denial of that motion.
[5] Affirmed.
Mathias, J., and Barnes, J., concur.
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