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

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020   Page 2 of 7
              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.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020                         Page 4 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020                        Page 5 of 7
                  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.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020                Page 6 of 7
                                        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
