Paul Oliver v. FLH Mill, LLC

IN THE

Court of Appeals of Indiana FILED Paul Oliver, Jun 26 2025, 9:14 am

CLERK Appellant-Plaintiff/Cross-Appellee Indiana Supreme Court Court of Appeals and Tax Court

v.

FLH Mill, LLC and Jeremy Ferree, Appellees-Defendants/Cross-Appellants

June 26, 2025 Court of Appeals Case No. 24A-CT-938 Appeal from the Greene Superior Court The Honorable Robert R. Cline, Special Judge Trial Court Cause No. 28D01-1908-CT-8

Opinion by Judge Mathias Chief Judge Altice and Judge Scheele concur.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 1 of 15

Mathias, Judge. [1] Paul Oliver appeals the trial court’s order partially setting aside a default

judgment Oliver had obtained against Jeremy Ferree and FLH Mill, LLC.

Oliver also appeals the trial court’s related denial of his motion to garnish

Jeremy’s wages. Jeremy and FLH cross-appeal the trial court’s partial set-aside

of the default judgment. [2] Between them, the parties raise three issues for our review, which we

consolidate and restate as the following two issues:

1. Whether the trial court erred when it set aside part of the default judgment.

2. Whether the trial court erred when it denied Oliver’s motion for garnishment and ordered Jeremy to pay $100 weekly toward the revised judgment amount.

[3] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History1 [4] This is the second time this case has come before our Court. As we explained in

the first appeal:

1 We held oral argument in this case on June 3, 2025, in the Circuit Court courtroom of the historic Allen County Courthouse. We thank the Allen Circuit Court and its staff as well as the Allen County Bar Association for their kind hospitality. We also thank counsel for the quality of their written and oral advocacy.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 2 of 15

Oliver entered into a contract with Jeremy to build a log home in Linton for $323,900. The contract lists the “Builder” as “Jeremy Ferree (FLH Mill LLC).” Oliver and Jeremy signed the contract, which reflects the word “Builder” next to Jeremy’s signature but contains no explicit reference to FLH in the signature section. Crystal [Ferree]’s name does not appear on the contract and the record contains no indication that she was involved in FLH’s operations.

Oliver eventually filed suit against Jeremy, FLH, and Crystal, alleging breach of contract and home improvement fraud. The complaint asserted Oliver had paid $313,681 of the $323,000 contract price to the defendants, who allegedly used the funds for other purposes and did not complete his log home. Oliver served the company and summons on Jeremy as agent for FLH by leaving the documents with another person at the business’s address. Oliver served Crystal and Jeremy individually by leaving copies of the complaint and summons for each with the owner of a campground in Linton at which the Ferrees purportedly were staying.

Jeremy, pro se on his own behalf and also on behalf of FLH, timely answered the complaint and denied Oliver’s claims. Crystal failed to answer the complaint, prompting Oliver to move for default judgment against her. The trial court granted Oliver’s motion and entered default judgment against Crystal on the day the motion was filed.

Two months later, Oliver moved to set aside the default judgment against Crystal only as to the count of home improvement fraud. In the same motion, Oliver sought permission to amend the complaint to allege conversion, instead of home improvement fraud, as to Jeremy and FLH. The trial court granted that motion, dismissing the default judgment against [Crystal] only as to the home improvement count and otherwise reaffirming that default judgment. The trial court also Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 3 of 15

authorized Oliver’s proposed amendment of the complaint as to Jeremy and FLH. Oliver filed his amended complaint November 14, 2019. Jeremy and FLH failed to answer the amended complaint, prompting Oliver to seek default judgment against them. Jeremy and FLH failed to appear at the hearing on that motion. The trial court entered default judgment against Jeremy and FLH for $414,120.80.

Two months later Jeremy, FLH, and Crystal filed a combined motion to set aside all of the default judgments under Ind. Trial Rule 60(B) based on excusable neglect. At the hearing on their motion, the three defendants alleged Crystal had not been served with the complaint and that Jeremy and FLH did not understand they needed to file an answer to the amended complaint. The trial court granted the Trial Rule 60(B) motion as to all three defendants without specifying its reasons.

Oliver v. FLH Mill, LLC, No. 20A-CT-1798, 2021 WL 1182906, at *1-2 (Ind. Ct.

App. Mar. 30, 2021) (mem.) (footnote and citations to the record omitted)

(“Oliver I”). [5] Oliver appealed the trial court’s decision to set aside the default judgment. On

appeal, we affirmed the trial court’s decision as to Crystal on the ground that

Oliver had not properly served Crystal with his summons and complaint. Id. at

*3-4. Oliver then later perfected service against Crystal only to eventually

dismiss his claims against her. However, on counter-claims Crystal had brought

against Oliver, the trial court found for Crystal and against Oliver following a

bench trial. [6] With respect to Jeremy and FLH, we held as follows in Oliver I:

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 4 of 15

Counsel for Jeremy and FLH alleged in the 60(B) motion and at the related hearing that the two parties did not understand the need to file an answer to the amended complaint. According to counsel, Jeremy and FLH believed their answer to the original complaint would suffice. But neither Jeremy nor FLH backed up these claims with affidavits or witness testimony. That left the trial court with no admissible evidence excusing the failure of Jeremy and FLH to answer the amended complaint.

In addition, neither Jeremy nor FLH presented evidence of any meritorious defense, as is required for Trial Rule 60(B) relief under these circumstances. Jeremy’s counsel merely asserted, without any supporting evidence, that FLH was the contracting party, and Jeremy was not personally liable for FLH’s misconduct or obligations. Neither party presented a viable defense against Oliver’s accusation of conversion.

Finally, Jeremy and FLH never explained, either in their Trial Rule 60(B) motion or at the hearing, why they failed to appear at the hearing on Oliver’s motion for default judgment. They never alleged a lack of service. If they had appeared at that hearing, they might have avoided default judgment, eliminating the need for their Trial Rule 60(B) motion. Although judgment on the merits is preferred, a default judgment plays an important role in the maintenance of an orderly, efficient judicial system. A default judgment, both generally and as used here, is a weapon for enforcing compliance with the rules of procedure and for facilitating speedy determinations of disputes.

Id. at *4-5 (citations omitted). Accordingly, we concluded that the trial court abused its discretion when it set aside the default judgment against Jeremy and FLH. Id. at *5. Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 5 of 15 [7] Six days after we handed down our opinion in Oliver I, Jeremy and FLH jointly

filed in the trial court an amended motion to set aside the default judgment

against them. As they had originally, Jeremy and FLH sought relief from the

default judgment under Trial Rules 60(B)(1) and 60(B)(8). Attached to their

amended motion, they included admissions and answers to interrogatories that

they believed established an evidentiary foundation for their again-requested

relief. [8] However, following certification of our opinion, the trial court entered an order

reinstating the default judgment against Jeremy and FLH. In August 2021, the

trial court also denied Jeremy and FLH’s amended motion to set aside the

(reinstated) default judgment. Jeremy and FLH did not appeal that decision.

That same month, Oliver initiated proceedings supplemental against Jeremy

and FLH. [9] Jeremy pursued bankruptcy and obtained a stay of the trial court’s proceedings.

However, the bankruptcy court denied Jeremy’s request to be discharged from

his liabilities after concluding that he had failed to satisfactorily explain a

deficiency of assets to meet his liabilities. See 11 U.S.C. § 727(a)(5). Thus, in

April 2023, Oliver resumed his attempts to collect the default judgment in the

trial court. At an ensuing hearing, Jeremy appeared and informed the court that

he was unemployed and seeking employment. The court informed the parties

that, upon his obtaining employment or other work, Jeremy would be eligible

for a garnishment order.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 6 of 15 [10] By November 2023, Jeremy had obtained employment with an average weekly

gross income of $1,200, and he agreed to a payment plan against the default

judgment of $50 per week. See Ex. Vol. 3, p. 121. However, about two months

later, Oliver caused Jeremy’s financial accounts to be frozen for ninety days. See

Tr. Vol. 2, p. 63. Because his accounts were frozen, Jeremy was unable to

continue making his weekly payments against the default judgment. Id. [11] Soon thereafter, in February 2024, Jeremy and FLH filed a third motion to set

aside the default judgment. The first eight paragraphs of their third motion

largely reiterated their second motion to set aside the default judgment under

Trial Rules 60(B)(1) and 60(B)(8). Indeed, those paragraphs continued to refer

to the original date of the default judgment rather than the date of the reinstated

judgment following Oliver I. The last two paragraphs of the third motion to set

aside the default judgment requested, in the “alternative,” that the court leave

intact the default judgment as it related to Oliver’s claim for breach of contract

but set aside the default judgment as to Oliver’s claim of criminal conversion

and treble damages. Appellant’s App. Vol. 3, p. 3. In those two paragraphs,

Jeremy and FLH asserted that setting aside the default judgment was

appropriate because “[n]o evidence has ever been presented” by Oliver “to

support” his claim of criminal conversion. Id. [12] Oliver then requested a garnishment order against Jeremy’s wages due to

Jeremy’s alleged noncompliance with the weekly payment plan. The court held

a hearing on that request and the third motion to set aside the default judgment.

At that hearing, Oliver introduced into evidence, without objection, proof that

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Jeremy was earning $1,200 weekly from his employment. And Jeremy’s

response to questions under Indiana’s garnishment statute, Indiana Code

section 24-4.5-5-105, concerning details of his disposable earnings, his assets,

and any applicable exemptions was to assert his Fifth Amendment right against

self-incrimination. 2 [13] Following that hearing, the trial court partially granted the third motion to set

aside the default judgment. In particular, the court set aside the default

judgment as to Oliver’s allegation of criminal conversion but left in place the

default judgment as to his claim for breach of contract. As a result, the amount

owed by Jeremy and FLH to Oliver was reduced from about $420,000 to about

$137,000. The court then reinstated Jeremy’s $50-per-week payment plan to be

applied to the revised judgment amount. Tr. Vol. 2, p. 64. The court later

increased Jeremy’s payment obligation to $100 per week. Appellant’s App. Vol.

2, p. 59. [14] This appeal ensued.

2 Based on the answers to interrogatories to garnishee-defendant J.P. Morgan Bank, Oliver chose to dismiss garnishment proceedings against that bank, and, because of the nature of the deposits into Jeremy’s personal Green Dot bank account, the trial court refused garnishment of that account, which Oliver does not challenge on appeal.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 8 of 15

1. The trial court erred when it set aside the criminal conversion portion of the default judgment. [15] On appeal, Oliver first argues that the trial court erred when it set aside the

default judgment as to his claim for criminal conversion. Jeremy and FLH

argue that the trial court erred when it did not set aside the entire default

judgment. We agree with Oliver. [16] We generally review a trial court’s decision under Indiana Trial Rule 60(B) for

an abuse of the trial court’s discretion. See, e.g., State v. Collier, 61 N.E.3d 265,

268 (Ind. 2016). An abuse of discretion occurs if the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the

court or the reasonable, probable, and actual deductions to be drawn therefrom.

Id. An abuse of discretion also occurs if the trial court’s judgment is contrary to

law. E.g., Ayers v. Stowers, 200 N.E.3d 480, 484 (Ind. Ct. App. 2022). We do not

reweigh the evidence on appeal. Collier, 61 N.E.3d at 268. [17] The trial court concluded that Jeremy and FLH were entitled to have the

default judgment as to the criminal conversion count set aside under Indiana

Trial Rule 60(B)(8). Rule 60(B)(8) permits the trial court to set aside a default

judgment for any reason justifying relief that is not otherwise provided for in

Rule 60(B). The moving party must establish that it has a meritorious defense to

the plaintiff’s claims. Ind. Trial Rule 60(B). The trial court thus concluded here

that the evidence attached to the third motion to set aside the default judgment

by Jeremy and FLH “amount[ed] to a meritorious defense.” Appellant’s App.

Vol. 2, pp. 82-83.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 9 of 15 [18] However, our case law prohibits subsequent Trial Rule 60(B) motions “when

the defaulted party fail[s] to show that the issues brought in the subsequent

60(B) motions were unavailable or unknown at the time of the first motion.”

Magnuson v. Blickenstaff, 508 N.E.2d 814, 816-17 (Ind. Ct. App. 1987) (emphasis

added). That is, if the grounds alleged in a subsequent motion “were discoverable

at the time of the [prior] Rule 60(B) motion,” the subsequent motion is

prohibited. Id. at 817 (discussing Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332

(Ind. 1983)) (emphasis added). Thus, to avoid the general prohibition against

subsequent Rule 60(B) motions, the moving party must show that it was

“unaware or had no opportunity to become aware” of the facts alleged in the

subsequent motion at the time of the first motion. Id. at 816-17 (discussing

Carvey v. Ind. Nat’l Bank, 176 Ind. App. 152, 159, 374 N.E.2d 1173, 1177

(1978)). [19] The third motion to set aside the default judgment did not meet that standard.

The evidence attached to the third motion consisted only of evidence also

attached to the second motion or photographs from one year before Oliver had

filed his November 2019 amended complaint, which photographs allegedly

showed at least substantial compliance with the contract to build the log home.

Obviously, evidence that had been attached to a prior Rule 60(B) motion was

not unavailable or unknown at the time of the prior motion; thus, that evidence

is not sufficient to support a subsequent motion. See id. Further, Jeremy and

FLH provide no persuasive argument here that, at the time of their prior Rule

60(B) motions, they were unaware or had no opportunity to become aware of

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 10 of 15

the condition of the home they had built. Thus, there is nothing in the third

motion to set aside the default judgment that established legally sufficient

grounds to support setting aside the default judgment either in whole or in part.

See id. [20] The trial court alternatively concluded that setting aside the default judgment as

to the count of criminal conversion was appropriate under Indiana Trial Rule

9(G). That Rule requires a complaint to state “special damage[s]” with

specificity. T.R. 9(G). The Rule further states that, where there is no answer to

a complaint, the relief to the plaintiff “cannot exceed the relief demanded in his

complaint.” Id. [21] Trial Rule 9(G) is not a basis to set aside a default judgment. See T.R. 55(C).

And, regardless, Oliver’s amended complaint specifically identified $137,276.60

as actual damages for breach of contract under count one and specifically

alleged that he was entitled to treble damages under Indiana Code section 34-

24-3-1 for alleged criminal conversion by Jeremy and FLH under count two.

Further, the default judgment Oliver received on both counts was a total

judgment of $414,120.80, which included $2,100 in attorney’s fees and $191 in

costs. Appellant’s App. Vol. 2, pp. 111-12. That amount does not exceed the

relief demanded in the complaint. Accordingly, the trial court erred when it

relied on Trial Rule 9(G) to set aside the default judgment as to the criminal

conversion count.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 11 of 15 [22] The trial court has made clear in the record that it believes setting aside the

default judgment is appropriate under these facts and circumstances. We are

not indifferent to the trial court’s assessment of the facts and circumstances

before it or to the court’s equitable discretion under Trial Rule 60(B). But

repeated lack of conformity with the Indiana Trial Rules and with Indiana

precedent discussing how to apply those Rules by Jeremy and FLH is not

irrelevant. Our Trial Rules and case law establish the process and standards

under which a default judgment may be set aside, especially with respect to

subsequent motions for relief under Rule 60(B). As we concluded in Oliver I and

as we reiterate again today, Jeremy and FLH have failed to satisfy those

standards, and the trial court’s decision to set aside part of the default judgment

on a third motion to do so was contrary to law. [23] Although the trial court properly denied the third motion to set aside the default

judgment as to the breach of contract claim, the trial court erred in setting aside

the default judgment as to Oliver’s claim for criminal conversion. We therefore

reverse the trial court’s judgment and remand with instructions for the court to

reinstate Oliver’s default judgment on that claim.

2. The trial court acted within its discretion when it denied Oliver’s request to garnish Jeremy’s wages and accounts, but the court erred when it ordered Jeremy to pay only $100 weekly against the revised judgment amount. [24] We thus turn to Oliver’s argument on appeal that the trial court abused its

discretion when it denied his request to garnish Jeremy’s wages. Again, we will

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reverse the trial court’s exercise of its discretion only if it is against the logic and

effect of the facts and circumstances or if it is contrary to law. See, e.g., Collier,

61 N.E.3d at 268. [25] Jeremy testified that the only reason he had stopped paying the $50 per week

was because Oliver had caused Jeremy’s financial accounts to be frozen. See Tr.

Vol. 2, p. 63. It was on the basis of Jeremy’s ceased weekly payments that

Oliver sought to garnish Jeremy’s wages and his financial accounts. The trial

court concluded that Oliver’s request to garnish Jeremy’s wages and accounts

was inappropriate because Oliver had created the condition that made Jeremy

unable to comply with the weekly payment plan. [26] The trial court’s denial of Oliver’s request to garnish Jeremy’s wages and

accounts was within the facts and circumstances before the court. The court

therefore did not abuse its discretion when it denied Oliver’s request. [27] However, we do not approve of the trial court’s order that Jeremy pay $100 per

week against Oliver’s judgment, which the court ordered to be applied to the

reduced judgment amount of about $137,000. For the reasons explained in part

1, supra, the original judgment amount of approximately $420,000 is to be

reinstated. Further, the evidence demonstrates that Jeremy earns $1,200

weekly, and a payment of $100 per week against an approximately $420,000

judgment amount at an 8% interest rate does not meaningfully contribute

toward satisfaction of that judgment. Indeed, interest alone on the judgment is

approximately $2,800 per month.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 13 of 15 [28] We are mindful of the garnishment limitations set forth in Indiana Code section

24-4.5-5-105, but the $100 per week payment plan amount is not supported by

the evidence. We therefore reverse the trial court’s payment plan and remand

with instructions for the court either to enter a payment plan that has the

consent of both parties or to direct Jeremy to make weekly payments within the

range of 10% to 25% of Jeremy’s disposable earnings as set forth in Indiana

Code section 24-4.5-5-105(2), up to the maximum of 60% of Jeremy’s

disposable earnings under section 24-4.5-5-105(3). Finally, we note that

Jeremy’s circumstances are likely to change from time to time. Oliver is entitled

to further hearings in proceedings supplemental at reasonable intervals, but not

less than every 90 days, unless evidence is brought to the trial court’s attention

that merits an immediate hearing.

Conclusion [29] For all of these reasons, we affirm the trial court’s denial of Oliver’s request to

garnish Jeremy’s wages and accounts, but we reverse the trial court’s order to

set aside the default judgment as to the criminal conversion count as well as the

trial court’s order for Jeremy to pay $100 per week toward the judgment

amount. We thus remand with instructions for the trial court to reinstate the full

judgment and to order Jeremy to pay a reasonable periodic amount toward the

judgment that is supported by the evidence and Indiana Code section 24-4.5-5-

105. [30] Affirmed in part, reversed in part, and remanded with instructions.

Court of Appeals of Indiana | Opinion 24A-CT-938 | June 26, 2025 Page 14 of 15 Altice, C.J., and Scheele, J., concur.

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE Adam R. Doerr Kevin D. Koons Kroger, Gardis & Regas, LLP Indianapolis, Indiana Lucas J. Rowe The Rowe Law Firm, LLC Sullivan, Indiana

ATTORNEY FOR APPELLEES/CROSS-APPELLANTS Scott E. Racop Racop Law Offices, P.C. Terre Haute, Indiana

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