MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Feb 25 2016, 6:33 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Segun Rasaki                                             Mary Jane Lapointe
Greencastle, Indiana                                     Daniel LaPointe Kent
                                                         Lapointe Law Firm, P.C.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Segun M. Rasaki,                                         February 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1506-CT-774
        v.                                               Appeal from the Marion Superior
                                                         Court
Tammy Lynn,                                              The Honorable Cynthia J. Ayers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49D04-1212-CT-46584



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016      Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Segun M. Rasaki (Rasaki), appeals the trial court’s denial

      of his motion for relief from the summary judgment granted to Appellee-

      Plaintiff, Tammy Lynn (Lynn).


[2]   We affirm.


                                                    ISSUES

[3]   Rasaki raises two issues on appeal, which we restate as: Whether the trial court

      properly denied his motion for relief from judgment.


                           FACTS AND PROCEDURAL HISTORY

[4]   On December 5, 2012, Lynn filed a Complaint that Rasaki, a licensed physician

      practicing in Indiana, had committed medical malpractice, assault and battery,

      and had intentionally or recklessly inflicted severe emotional distress. Lynn

      asserted that while she sought treatment from Rasaki for ankle pain, Rasaki

      touched her in a sexually inappropriate manner.


[5]   Rasaki filed his Answer to the Complaint on April 5, 2013, pro se, and again on

      April 10, 2013, while represented by counsel. A pretrial conference was held on

      October 28, 2013, and trial was originally scheduled for March 25, 2014. Lynn

      moved to compel discovery, and following a hearing, sanctions were awarded

      against Rasaki for noncompliance. On April 16, 2014, Lynn filed her motion

      for summary judgment, together with a memorandum and designation of

      evidence. Rasaki did not file a response.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 2 of 7
[6]   On August 11, 2014, the trial court conducted a hearing on Lynn’s motion for

      summary judgment. As Rasaki “failed to respond to [Lynn’s] motion,” the trial

      court entered summary judgment for Lynn. (Appellant’s App. p. 12). On

      September 19, 2014, Rasaki, pro se, filed a motion to set aside/vacate the

      summary judgment. On April 15, 2015, the trial court conducted a hearing on

      the motion, at which Rasaki was represented by trial counsel and which Rasaki

      attended via telephone. On June 15, 2015, the trial court denied Rasaki’s

      motion and the case was set for a hearing on damages.


[7]   Rasaki now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   While difficult to discern, it appears that the issue raised by Rasaki focuses on

      the trial court’s decision to deny his motion for relief from judgment. However,

      Rasaki is proceeding pro se, and we note that such litigants are held to the same

      standards as trained counsel and are required to follow procedural rules. Evans

      v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


[9]   Our review of Rasaki’s Notice of Appeal reflects that the “Order being

      Appealed” is the trial court’s “Order Denying Defendant’s Motion to Set

      Aside/Vacate Judgment” of June 15, 2015. In so far as Rasaki now attempts to

      raise arguments in his brief which relate in substance to the trial court’s entry of

      summary judgment, his appeal as to that order is untimely. See Ind. Appellate

      Rule 9. Moreover, in his appellant’s brief, Rasaki fails to present a cogent

      argument with respect to the trial court’s order denying his motion for relief.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 3 of 7
       Accordingly, his claims on appeal are waived. See Loomis v. Ameritech Corp., 764

       N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure to

       provide cogent argument), reh’g denied, trans. denied.


[10]   Waiver notwithstanding, we find that the trial court did not abuse its discretion

       in denying Rasaki’s motion for relief from judgment. The trial court’s decision

       to deny a party relief from judgment under Indiana Trial Rule 60(B) “is within

       its sound, equitable discretion,” and is not subject to reversal unless there has

       been an abuse of discretion. Stronger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002).

       An abuse of discretion occurs when the trial court’s decision is clearly against

       the logic and effect of the facts, or if the trial court misinterpreted the law. Jo.

       W. v. Je. W., 952 N.E.2d 783, 785 (Ind. Ct. App. 2011). When reviewing the

       trial court’s determination, we will not reweigh the evidence. Wagler v. West

       Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), reh’g denied,

       trans. denied, cert. denied, 134 S.Ct. 952 (2014). Indiana Trial rule 60(B) affords

       relief in extraordinary circumstances which are not the result of any fault or

       negligence on the part of the movant. Id. at 371-72. On a motion for relief

       from judgment, the burden is on the movant to demonstrate that the relief is

       both necessary and just. Id. at 372. A trial court must balance the alleged

       injustice suffered by the moving party against the interests of the party who

       prevailed and society’s interest in the finality of the judgment. Id.


[11]   Indiana Trial Rule 60(B) provides in part:

               Mistake—Excusable neglect—Newly discovered evidence—
               Fraud, etc. On motion and upon such terms as are just the court
       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 4 of 7
        may relieve a party or his legal representative from a judgment,
        including a judgment by default, for the following reasons:


        (1) Mistake, surprise, or excusable neglect;


        ***


        (8) any reason justifying relief from the operation of the
        judgment, other than those reasons set forth in subparagraphs (1),
        (2), (3) and (4)


        ***


        A movant filing a motion for reasons (1), (2), (3), (4), and (8)
        must allege a meritorious claim or defense.


With respect to the requirement that the movant establish a meritorious claim

or defense, we observe that a meritorious defense for purposes of Indiana Trial

Rule 60(B) is “one that would lead to a different result if the case were tried on

the merits.” Wagler, 980 N.E.2d at 372. Also, the trial court’s residual powers

under subsection (8) may only be invoked upon a showing of exceptional

circumstances justifying extraordinary relief. Id. Moreover, a motion for relief

from judgment under T.R. 60(B) is not a substitute for a direct appeal. In re

Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). Indiana Trial Rule 60(B)

motions only address the procedural, equitable grounds justifying relief from

the legal finality of a final judgment, not the legal merits of the judgment. Id.




Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 5 of 7
[12]   The only recognizable claim made by Rasaki with respect to his T.R. 60(B)

       motion is the argument of excusable neglect in that there was a breakdown in

       communication between himself and his trial counsel. Under this rule,

       excusable neglect includes a breakdown in communication that results in a

       party’s failure to appear. Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).

       Appellant’s record contains the trial court’s notification, dated June 2, 2014,

       sent to Rasaki’s address on record, as well as to his trial counsel, that a hearing

       on Lynn’s motion for summary judgment was set for August 11, 2014. During

       the hearing to set aside the judgment, Lynn’s counsel affirmed that he served

       Rasaki’s trial counsel with his motion for summary judgment. However, from

       the chronological case summary, it appeared that trial counsel never filed an

       Answer to the motion for summary judgment and did not show up for the

       hearing. Trial counsel never requested to be recused from the case, nor did the

       trial court discharge him from the cause. During the hearing on the motion for

       relief, trial counsel failed to articulate any reason as to why he did not respond

       to the motion for summary judgment or for his failure to attend the hearing

       thereon.


[13]   Furthermore, even if we somehow were to construe an excusable breakdown of

       communications, Rasaki failed to persuade us that based on the evidence before

       us, he has a meritorious defense and a different result would be reached upon a

       retrial of this cause. Accordingly, based on the record, we cannot say that the

       trial court abused its discretion in denying Rasaki’s motion for relief from

       judgment under T.R. 60(B).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 6 of 7
                                               CONCLUSION

[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by denying Rasaki’s motion for relief from judgment.


[15]   Affirmed.


[16]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CT-774 | February 25, 2016   Page 7 of 7
