Rachel Stempien v. Jacqueline R. Keating (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 25 2017, 9:00 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 Matthew S. Williams Lee F. Baker Fort Wayne, Indiana Nationwide Mutual Insurance Company Trial Division Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rachel Stempien, January 25, 2017 Appellant-Plaintiff, Court of Appeals Case No. 02A03-1609-CT-2208 v. Appeal from the Allen Superior Court Jacqueline R. Keating, The Honorable Stanley A. Levine, Appellee-Defendant. Judge Trial Court Cause No. 02D03-1411-CT-506

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017 Page 1 of 7

Case Summary [1] Rachel Stempien (“Stempien”) filed a complaint against Jacqueline R. Keating

(“Keating”), and the trial court dismissed the case with prejudice when

Stempien failed to comply with an order compelling discovery. Stempien filed

a Trial Rule 60(B)(1) motion for relief from judgment, which the trial court

denied. Stempien then filed a motion to correct error, which the trial court

denied. Stempien now raises multiple issues on appeal, which we consolidate

and restate as whether the trial court abused its discretion when it denied her

motion to correct error. [2] We affirm.

Facts and Procedural History [3] On November 12, 2014, Stempien filed a complaint against Keating seeking

damages for personal injuries allegedly resulting from a vehicle accident. On

April 8, 2015, Keating answered Stempien’s complaint. Keating also served

written discovery requests, but Stempien did not respond. Keating eventually

filed a motion to compel, which the trial court set for hearing on August 12,

2015. On the day of the scheduled hearing, Keating’s counsel, Lee F. Baker,

called Stempien’s counsel, Matthew S. Williams (“Williams”). After the call,

Williams sent the following email message:

Lee,

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Thanks for calling me this morning, Wednesday 8-12-15. As we discussed, I have called and chatted with court staff. Judge has agreed to vacate the hearing for today on the motion to compel.

By way of this email, I agree to get the discovery to you within the next 7 days. Thank you for your patience in this matter, it is much appreciated.

(Appellee’s App. Vol. 2 at 11.) [4] Stempien did not provide discovery within the agreed timeframe, and Keating

filed another motion to compel. The trial court granted Keating’s motion to

compel on October 26, 2015, and ordered Stempien to provide discovery within

seven days. When Stempien did not comply with the order, Keating filed a

motion to dismiss. On November 25, 2015, the trial court granted Keating’s

motion and dismissed Stempien’s case with prejudice. [5] On May 23, 2016, Stempien filed a motion seeking Trial Rule 60 relief from the

dismissal on grounds of mistake and excusable neglect. Attached to the motion

was an affidavit signed by Williams’s legal assistant. The assistant averred to

matters in her personal life that allegedly affected her work performance in

2015. The assistant also cursorily mentioned that Williams had his own family

stresses. [6] On May 26, 2016, the trial court denied Stempien’s Trial Rule 60 motion

without hearing, and Stempien then filed a motion to correct error. Following

a hearing, the trial court denied the motion to correct error.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017 Page 3 of 7 [7] Stempien now appeals.

Discussion and Decision [8] Stempien challenges the trial court’s denial of her motion to correct error,

which followed the denial of her Trial Rule 60 motion seeking relief from the

order dismissing the case. We review a ruling on a motion to correct error for

abuse of discretion. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055

(Ind. 2003). We also review a ruling on a Trial Rule 60 motion for abuse of

discretion. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.

2006). The trial court abuses its discretion when its “judgment is clearly against

the logic and effect of the facts and circumstances before it or where the trial

court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.

2013). [9] Stempien argues that the trial court initially erred in denying her Trial Rule 60

motion without a hearing. Trial Rule 60(B) states that “[o]n motion and upon

such terms as are just the court may relieve a party . . . from a judgment” for

“mistake, surprise, or excusable neglect.” Trial Rule 60 goes on to provide that

“[i]n passing upon a motion allowed by subdivision (B) of this rule the court

shall hear any pertinent evidence . . . .” Ind. Trial Rule 60(D). “Thus, where

there is no ‘pertinent evidence,’ a hearing is unnecessary.” State Farm Fire &

Cas. Co. v. Radcliff, 18 N.E.3d 1006, 1018 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017 Page 4 of 7 [10] In her Trial Rule 60 motion and motion to correct error, Stempien focused on

excusable neglect as grounds warranting relief. To prevail on a claim of

excusable neglect, the movant “must establish (1) excusable neglect and (2) a

meritorious basis to set aside the judgment—also referred to as prejudice.”

Thompson v. Thompson, 811 N.E.2d 888, 903 (Ind. Ct. App. 2004). “Because the

circumstances of each case differ, there are no fixed rules or standards for

determining what constitutes . . . excusable neglect.” Fitzgerald v. Cummings,

792 N.E.2d 611, 614 (Ind. Ct. App. 2003). “[T]he trial court must balance the

need for an efficient judicial system with the judicial preference for resolving

disputes on the merits.” Id. Importantly, however:

Although there are exceptions, generally, the negligence of an attorney is attributable to the client for Trial Rule 60(B) purposes, and attorney negligence will not support a finding of excusable neglect. Morequity Inc. v. Keybank, 773 N.E.2d 308, 314 (Ind. Ct. App. 2002), trans. denied (citing Moe v. Koe, 165 Ind. App. 98, 104-05, 330 N.E.2d 761, 765 (1975), trans. denied); see also In re the Marriage of Ford, 470 N.E.2d 357, 361 (Ind. Ct. App. 1984) (“We believe the only equitable result as between wife and the husband is for [wife] to suffer the consequences of any errors of judgment made by the attorney she hired.”); Vanjani v. Fed. Land Bank of Louisville, 451 N.E.2d 667, 671 (Ind. Ct. App. 1983) (noting that numerous cases hold that the negligence of an attorney does not amount to excusable neglect as a matter of law); but see Rose v. Rose, 181 Ind. App. 98, 100-01, 390 N.E.2d 1056, 1058 (1979) (the general rule with regard to the negligence of the attorney being attributable to the client is tempered by Trial Rule 60(B)’s rule that the facts and circumstances of the particular case are controlling).

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Thompson, 811 N.E.2d at 903-04. Moreover, an attorney has a duty to

supervise nonlawyer assistants. Ind. Professional Conduct Rule 5.3. [11] Here, Stempien attached an affidavit to her Trial Rule 60 motion. The affidavit

pointed to matters in the personal life of Williams’s assistant that the assistant

said caused her to make certain mistakes at the law office: “I did not properly

calendar court dates, discovery due dates, and at times I did not bring

correspondence or court mail to Mr. Williams’[s] attention.” (Appellant’s App.

Vol. II at 12.) The affidavit also briefly noted that Williams had family stresses

during the same time period. [12] Hearing or not, the sole support for Stempien’s argument is excusable neglect.

She has identified no other theory that potentially would have been available at

a hearing.1 See Integrated Home Techs., Inc. v. Draper, 724 N.E.2d 641, 643 (Ind.

Ct. App. 2000) (remanding where a Trial Rule 60 motion, on its face, presented

no basis for relief but the movant “might, at a hearing, be able to

demonstrate . . . [a] valid Trial Rule 60(B) basis for relief”). Rather, Stempien

continues to focus her argument on the trial court’s purported inability to

balance the equities when it denied her Trial Rule 60 motion. Stempien was no

1 For the first time on appeal, Stempien points to Trial Rule 60(B)(8) as a potential source for relief. This is a “catch-all” provision, allowing relief for “any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)” of the rule. T.R. 60(B)(8) (emphasis added). Although Stempien cites this subsection of Trial Rule 60, Stempien has not developed argument that any alternate basis for relief actually applied. “Issues not raised at the trial court are waived on appeal.” Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). Moreover, Stempien has also waived this argument because it is undeveloped. Ind. Appellate Rule 46(A)(8)(a); Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“We will not review undeveloped arguments.”).

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doubt affected by the dismissal of her case. However, Stempien has established

no basis for departure from the general rule that attorney negligence does not

create a valid basis for Trial Rule 60 relief under a theory of excusable neglect.

Thompson, 811 N.E.2d at 903. Ultimately, whether or not the trial court held a

hearing, we cannot say that the trial court abused its discretion in denying

Stempien’s motion to correct error.

Conclusion [13] The trial court did not abuse its discretion when it denied Stempien’s motion to

correct error. [14] Affirmed.

Najam, J., and May, J., concur.

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