Richard N. Bell v. Vacuforce, LLC (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 May 26 2020, 10:27 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Richard N. Bell Paul B. Overhauser Indianapolis, Indiana Melanie Eich Overhauser Law Offices, LLC Maura K. Kennedy Greenfield, Indiana Law Office of Maura K. Kennedy, LLC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard N. Bell, May 26, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-PL-2008 v. Appeal from the Marion Superior Court Vacuforce, LLC, The Honorable Timothy W. Appellee-Defendant. Oakes, Judge The Honorable Caryl F. Dill, Magistrate Trial Court Cause No. 49D02-1903-PL-8733

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 1 of 7

Statement of the Case [1] Richard Bell appeals the trial court’s denial of his motion to set aside the court’s

dismissal of Bell’s complaint against Vacuforce, LLC for failure to state a claim

upon which relief can be granted. Bell presents two issues for our review:

1. Whether the trial court abused its discretion when it denied Bell’s motion to set aside the dismissal of his complaint.

2. Whether the trial court abused its discretion when it ordered Bell to pay Vacuforce’s attorney’s fees.

[2] Vacuforce cross-appeals and asserts that it is entitled to appellate attorney’s fees.

We affirm and remand with instructions.

Facts and Procedural History [3] In an appeal of the underlying federal lawsuit in this matter, the United States

Court of Appeals for the Seventh Circuit set out the relevant facts as follows:

Richard Bell brought a copyright infringement lawsuit against Vacuforce, LLC, accusing it of publishing his photograph of the Indianapolis skyline on its website without a license. Vacuforce hired attorney Paul Overhauser to defend it. The parties quickly settled, so the federal lawsuit was dismissed with prejudice.

That was not the end of the story. Overhauser then moved to recover attorney fees from plaintiff Bell. He argued that since the settlement produced a dismissal with prejudice, Vacuforce was the “prevailing party” for purposes of fees under the Copyright Act, 17 U.S.C. § 505. The district court considered Overhauser’s motion frivolous and misleading. The court denied the motion

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and ordered two monetary sanctions against Overhauser: one under Federal Rule of Civil Procedure 11 and another under 28 U.S.C. § 1927[ to recover Bell’s attorney’s fees incurred in responding to Overhauser’s motion].

Bell v. Vacuforce, LLC, 908 F.3d 1075, 1077 (7th Cir. 2018). [4] On March 4, 2019, Bell filed a complaint with the Marion Superior Court

alleging that, when it sought attorney’s fees in the federal court proceeding,

Vacuforce breached the terms of the parties’ settlement agreement. The trial

court granted extensions of time to Vacuforce to respond to the complaint. And

on June 21, Vacuforce filed a motion to dismiss under Trial Rule 12(B)(6). In

particular, Vacuforce alleged that Bell had not stated a claim for a breach of

contract. On July 25, the court granted Vacuforce’s motion to dismiss Bell’s

complaint with prejudice. [5] On July 28, Bell filed a motion to set aside the dismissal alleging that his

counsel, Maura Kennedy, “did not have knowledge of [either the motion to

dismiss or] the Court’s order granting dismissal on July 25, 2019, because

[Kennedy] did not receive electronic service of either of said documents.”

Appellant’s App. Vol. 2 at 46. In that motion, Bell asserted that Kennedy had

provided the trial court with her proper contact information on her appearance

form in this matter but only discovered the dismissal after checking the docket

four days prior to the dismissal order. Bell did not assert a meritorious claim in

his motion to set aside the dismissal.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 3 of 7 [6] In its response to Bell’s motion, Vacuforce pointed out that Kennedy had not

updated her contact information with the Indiana Supreme Court Roll of

Attorneys as required under Trial Rule 86(O), which had led to Kennedy’s

failure to receive the electronic notifications. The trial court denied Bell’s

motion to set aside. And the court awarded attorney’s fees to Vacuforce. This

appeal ensued. 1

Discussion and Decision Issue One: Motion to Set Aside

[7] Bell first contends that the trial court abused its discretion when it denied his

motion to set aside the dismissal of his complaint. Bell purports to allege that

the dismissal should be set aside under Trial Rule 60(B)(1), which provides that

the court may relieve a party from an entry of a final order for “mistake,

surprise, or excusable neglect.” We review the grant or denial of a Trial Rule

60(B) motion for relief from judgment under an abuse of discretion standard.

Ross v. Bachkurinskiy, 770 N.E.2d 389, 392 (Ind. Ct. App. 2002). [8] Bell maintains that his attorney was not served a copy of Vacuforce’s motion to

dismiss because of a “clerical error[,] as the Indiana E-filing System sent notice

of Vacuforce’s Motion to Dismiss to [Bell’s] Counsel’s wrong email address.”

1 Bell also appealed the trial court’s order granting Vacuforce’s motion to dismiss. Vacuforce filed with this Court a motion to dismiss Bell’s appeal as untimely. We agreed, in part, and granted that motion in part. In particular, in our March 20, 2020, Order, we “dismissed with prejudice” Bell’s appeal of the trial court’s July 25, 2019, order “because it was not timely initiated.” Accordingly, the sole issues in this appeal relate to the court’s order denying Bell’s motion to set aside and granting Vacuforce’s motion for attorney’s fees.

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Appellant’s Br. at 11. Thus, Bell asserts that he is entitled to have the dismissal

set aside due to mistake or surprise. However, as Vacuforce points out, Trial

Rule 86(O)(2) expressly provides in relevant part that, in her appearance form,

Bell’s attorney was required both to certify “that the contact information listed

on the Indiana Supreme Court Roll of Attorneys . . . [was] current and accurate

as of the date the appearance [wa]s filed” and to acknowledge “that orders . . .

will be sent to the attorney at the email address(es) on the Roll of Attorneys

regardless of other contact information supplied by the attorney.” Vacuforce

asserts, and Bell does not dispute, that Bell’s attorney had failed to update her

contact information, including her email address, with the Roll of Attorneys at

the time she filed her appearance in this matter. Thus, Bell’s attorney’s failure

to receive either Vacuforce’s motion to dismiss or the court’s order dismissing

the complaint was not due to any clerical error but, rather, was due to her own

mistake. 2 [9] As this Court has explained,

Trial Rule 60(B) requires that an allegation of mistake or excusable neglect be supported by a showing of a meritorious claim. That requires a showing “‘that vacating the judgment will not be an empty exercise.’” Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 73 (Ind. 2006) (quoting 12 Moore’s

2 In support of his contention that the trial court should set aside the dismissal due to the trial court’s “clerical error,” Bell cites to case law addressing Trial Rule 60(A), which permits a trial court to correct technical clerical errors in judgments or orders. However, Trial Rule 41(F) makes clear that where, as here, a complaint is dismissed with prejudice, the dismissal may be set aside “in accordance with the provisions of [Trial] Rule 60(B).” Accordingly, to the extent that Bell asserts that the court should set aside the dismissal based upon Trial Rule 60(A) alone, that claim is without merit.

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Federal Practice, § 60.43[1][c] (3d ed.1997)). The movant must make a prima facie showing of a meritorious claim, “that is, a showing that ‘will prevail until contradicted and overcome by other evidence.’” Id. (quoting Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind. 1999)).

Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d 611, 613 (Ind. Ct. App. 2007)

(emphasis added). [10] Here, in his motion to set aside, Bell asserted that his counsel had “just

discovered the E-service mistake” and that she had been “surprise[d]” to discover

the dismissal when she checked the docket in late July. Appellant’s App. Vol. 2

at 45-46 (emphasis added). On appeal, Bell states that he moved to set aside the

dismissal under Trial Rule 60(B)(1). However, Bell did not assert a meritorious

claim in his motion to set aside to the trial court, let alone make a prima facie

showing of a meritorious claim. Munster Cmty. Hosp., 874 N.E.2d at 613. To

the extent Bell asserts for the first time on appeal that he has a meritorious

claim, the issue is waived. Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006)

(holding that, to properly preserve an issue on appeal, “a party must, at a

minimum, ‘show that it gave the trial court a bona fide opportunity to pass

upon the merits of the claim before seeking an opinion on appeal.’”) Bell

cannot show that the trial court abused its discretion when it denied his motion

to set aside the dismissal under Trial Rule 60(B)(1). 3

3 We note that Bell makes no contention that the trial court’s dismissal order is void.

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Issue Two: Attorney’s Fees [11] Bell next contends, without any citation to the record or to authority, and

without any reference to our standard of review, that the trial court “should

reverse the judgment” due to the same “‘clerical error’ described in the Motion

to Dismiss.” Appellant’s Br. at 12. Again, Bell has not shown that a clerical

error occurred. Indeed, Bell does not dispute that the problem arose because

Bell’s attorney had not updated her contact information pursuant to Trial Rule

86(O). And, in any event, Bell does not support his contention on this issue

with cogent argument, and it is waived. We therefore affirm the trial court’s

award of attorney’s fees to Vacuforce.

Cross-Appeal [12] Vacuforce cross-appeals and contends that it is entitled to appellate attorney’s

fees under the terms of the parties’ settlement agreement. Bell does not contest

Vacuforce’s contention on this issue. As Vacuforce points out, the parties’

agreement provides in relevant part that, in any action seeking relief from an

alleged breach of the agreement, “the prevailing party shall recover all of such

party’s reasonable attorney’s fees” incurred, including appellate attorney’s fees.

Appellant’s App. Vol. 2 at 78. We hold that Vacuforce is entitled to appellate

attorney’s fees under the parties’ agreement, and we remand to the trial court

for a determination of the appropriate award. [13] Affirmed and remanded with instructions.

Kirsch, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 7 of 7