 Pursuant to Ind. Appellate Rule 65(D), 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.



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

BRYAN LEE CIYOU                                     JAMES O. WAANDERS
Ciyou & Dixon, P.C.                                 Indianapolis, Indiana

                                                                             FILED
Indianapolis, Indiana
                                                    CRAIG T. BENSON
                                                    Angola, Indiana
                                                                           Oct 26 2012, 8:39 am


                                                                                   CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court

                               IN THE
                     COURT OF APPEALS OF INDIANA

ZANE ZIEBELL,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 57A03-1203-CC-89
                                                    )
SOUTH MILFORD GRAIN COMPANY,                        )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE NOBLE SUPERIOR COURT
                          The Honorable Robert E. Kirsch, Judge
                             Cause No. 57D01-1011-CC-390



                                         October 26, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       South Milford Grain Company (“Milford Grain”) filed a complaint on contracts of

purchase against a farmer, seeking approximately $15,000 in damages. Thereafter, the

parties entered into a settlement agreement wherein the farmer agreed to pay, and Milford

Grain agreed to accept, a lesser sum. However, the farmer failed to pay according to the

terms of the settlement agreement. Thereafter, Milford Grain filed a motion for summary

judgment, and designation of evidence in support, on its original complaint for $15,000. The

farmer failed to respond or designate any facts in opposition to summary judgment.

Following a hearing, the trial court entered summary judgment in favor of Milford Grain.

       The farmer later filed a motion for relief from judgment claiming mistake, surprise, or

excusable neglect, arguing that he was surprised by the summary judgment filing because he

believed that the parties’ settlement agreement disposed of the case. The farmer further

claimed that Milford Grain was barred from seeking summary judgment on the original

complaint. The trial court denied the farmer’s motion for relief from judgment, and he now

appeals. Finding no abuse of discretion, we affirm.

                            Facts and Procedural History

       Zane Ziebell is a farmer in Noble County who is in the business of producing and

selling agricultural products such as corn and soybeans. Milford Grain is a corporation with

its principal offices in LaGrange County. Milford Grain owns and operates a grain elevator

and is engaged in the business of purchasing, handling, and selling agricultural products,

including corn and soybeans. In September 2009, Ziebell and Milford Grain contracted for


                                              2
the sale of 5000 bushels of Ziebell’s corn crop. In June 2010, Ziebell and Milford Grain

contracted for the sale of 8000 bushels of Ziebell’s yellow soybean crop.

       Due to weather, equipment, and/or planning problems, Ziebell was unable to fulfill his

contractual obligations regarding the growth, sale, and delivery of the corn and soybeans.

Although the parties attempted to resolve their dispute regarding these contractual obligations

over a period of several months, no acceptable resolution was reached. Consequently, on

November 1, 2010, Milford Grain filed its complaint on contracts of purchase against

Ziebell, alleging that Ziebell had defaulted under a 2009 corn contract and a 2010 soybean

contract. Milford Grain sought damages of approximately $15,000. Ziebell filed his answer,

affirmative defenses, and counterclaim on December 29, 2010.

       On March 28, 2011, the parties negotiated a settlement agreement (“the Settlement

Agreement”) addressing “all matters pending at this time.” Appellant’s App. at 57. The

Settlement Agreement provided that Ziebell would pay Milford Grain $1000 within thirty

days of the execution of the Settlement Agreement and $4000 paid no later than September

15, 2011. In the event that payment was not made by Ziebell by the deadlines indicated, the

Settlement Agreement provided that interest would be paid at the legal rate of eight percent

per annum until the $5000 was paid in full. The Settlement Agreement further provided that

the parties would enter into and execute an agreed judgment in the total amount of $4000,

said judgment to be held and not filed with the trial court until a period of ninety days had

elapsed from the time of the execution of the Settlement Agreement.




                                              3
       Ziebell failed to make the initial $1000 payment pursuant to the Settlement

Agreement. On May 9, 2011, Ziebell’s counsel filed a motion to withdraw his appearance,

which was granted by the trial court. Thereafter, on June 6, 2011, Milford Grain filed a

motion for pretrial conference in order to discuss payment and resolution of the matter.

Although a copy of the motion and hearing date was forwarded directly to Ziebell by certified

mail, the mailing was returned unclaimed by Ziebell. On July 13, 2011, the trial court held a

pretrial conference at which Ziebell failed to appear. During the conference, Milford Grain

indicated its intention to file a motion for summary judgment on its complaint. The trial

court specifically noted that if Ziebell “fails to claim the certified mail notice of the hearing

on [Milford Grain’s] Motion for Summary Judgment or if [Ziebell] fails to appear at the

hearing, the Court will proceed in [Ziebell’s] absence.” Id. at 2.

       On August 8, 2011, Milford Grain filed its motion for summary judgment and

designation of evidence in support, seeking the original amount of damages due pursuant to

the complaint on contracts of purchase. Ziebell did not respond to the motion for summary

judgment or designate any facts in opposition to summary judgment. The trial court held a

summary judgment hearing on October 20, 2011. Ziebell appeared at the hearing pro se.

Ziebell argued that, notwithstanding his admitted failure to make any payment to Milford

Grain, he believed the parties’ dispute was disposed of by the Settlement Agreement.

However, a copy of the Settlement Agreement was never designated to the trial court.

Following the hearing, but also on October 20, 2011, the trial court granted Milford Grain’s




                                               4
motion for summary judgment, and entered judgment in favor of Milford Grain in the amount

set forth in the complaint, $14,574.14 plus interest.

        On November 21, 2011, Ziebell, by newly retained counsel, filed a motion for relief

from judgment and a motion to correct error. Milford Grain responded to both motions, and

on January 27, 2012, the trial court held a hearing on the motions. On January 31, 2012, the

trial court entered a detailed order denying both motions. This appeal ensued.

                                        Discussion and Decision

        We begin by noting that, in his brief on appeal, Ziebell wholly ignores the procedural

posture of this case. Although he characterizes this as an appeal from the trial court’s entry

of summary judgment in favor of Milford Grain, in reality, Ziebell is appealing the trial

court’s denial of his motion for relief from judgment. We will address it as such.1

        A motion for relief from judgment brought pursuant to Trial Rule 60(B) is not a

substitute for a direct appeal. In re Paternity of P.S.S., 934 N.E.2d 737, 741 (Ind. 2010).

Rather, it addresses only the procedural, equitable grounds justifying relief from the legal

finality of a final judgment, not the legal merits of the judgment. Id. The burden is on the

movant to demonstrate that relief under Trial Rule 60(B) is both necessary and just. Fairrow

v. Fairrow, 559 N.E.2d 597, 599 (Ind. 1990). We review the grant or denial of a Trial Rule

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

SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). We will not find an


        1
           Along with his motion for relief from judgment, Ziebell also filed a motion to correct error, which the
trial court denied. However, Ziebell makes no arguments applicable to the trial court’s denial of his motion to
correct error, and therefore we need not address it in our opinion.


                                                        5
abuse of discretion unless the trial court’s ruling is clearly against the logic and effect of the

facts and circumstances before the court. Norris v. Pers. Fin., 957 N.E.2d 1002, 1006 (Ind.

Ct. App. 2011). Additionally, we will not reweigh the evidence on appeal. TacCo Falcon

Point, Inc. v. Atlantic Ltd. P’ship XII, 937 N.E.2d 1212, 1218 (Ind. Ct. App. 2010).

       Ziebell’s motion for relief from judgment sought to set aside the entry of summary

judgment in favor of Milford Grain on the grounds of mistake, surprise, or excusable neglect

pursuant to Trial Rule 60(B)(1). To prevail on such a motion, Ziebell is not only required to

show mistake, surprise, or excusable neglect, but must also show that he has a good and

meritorious defense to the summary judgment. See Burke v. DeLarosa, 661 N.E.2d 43, 45

(Ind. Ct. App. 1996), trans. denied. He has shown neither.

       Summary judgment is appropriate only where “the designated evidentiary matter

shows that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). Once the moving party has

carried its burden, “the burden then shifts to the non-moving party to designate and produce

evidence of facts showing the existence of a genuine issue of material fact.” Dreaded, Inc. v.

St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). “A nonmovant may not rest

upon bare allegations made in the pleadings, but must respond with affidavits or other

evidence setting forth specific facts showing there is a genuine issue in dispute.” Myers v.

Irving Materials, Inc., 780 N.E.2d 1226, 1228 (Ind. Ct. App. 2003). Moreover, “it is clear

that a party may not wait until the summary judgment hearing to oppose a motion.” Id.




                                                6
       Here, Milford Grain filed its motion for summary judgment and designation of

evidence, including an affidavit, indicating that no genuine issue of material fact remained

and that it was entitled to judgment as a matter of law against Ziebell on its complaint on

contracts of purchase in the amount of $14,574.14. Ziebell failed to respond or designate any

evidence in opposition to summary judgment.

       In support of his motion for relief from judgment, Ziebell argued mistake, surprise, or

excusable neglect to the trial court, claiming that he was surprised that Milford Grain moved

for summary judgment and was seeking the amount of damages pursuant to the original

complaint in light of the parties’ Settlement Agreement. Indeed, Ziebell argued that he

believed that the case had been resolved and that the summary judgment was merely an

attempt to effectuate the Settlement Agreement. Thus, Ziebell requested that the trial court

excuse his failure to respond or designate any evidence in opposition to summary judgment.

       However, as noted by the trial court, Ziebell received notice of the motion for

summary judgment on August 12, 2011, well in advance of the October 20, 2011, hearing on

that motion. The memorandum and affidavit submitted in support of summary judgment

clearly indicated that Milford Grain was seeking to recover $14,574.14, the amount of the

original claim. The motion for summary judgment in no way referenced the parties’

Settlement Agreement or any attempt to effectuate the same. Although we recognize that

Ziebell was pro se during those proceedings, it is well settled that pro se litigants are held to

the same standard as are licensed attorneys. In re Estate of Carnes, 866 N.E.2d 260, 265

(Ind. Ct. App. 2007). Under the circumstances, we agree with the trial court that Ziebell has


                                               7
not established mistake, surprise, or excusable neglect regarding Milford Grain’s motion for

summary judgment or the relief requested therein, and his failure to respond or designate

evidence, including the Settlement Agreement, in opposition thereto is not excused.

       Moreover, we agree with the trial court that Ziebell has similarly failed to establish a

meritorious defense to the trial court’s entry of summary judgment. Ziebell’s sole argument

of meritorious defense is that Milford Grain’s recovery is limited to the amount provided in

the parties’ Settlement Agreement.                 Specifically, Ziebell asserts that, despite his

noncompliance with the Settlement Agreement, Milford Grain’s only recourse was to pursue

enforcement of the Settlement Agreement or to file the agreed judgment and to pursue

proceedings supplemental. Ziebell argues that, pursuant to the contractual theories of accord

and satisfaction and compromise and settlement, Milford Grain is barred from seeking

damages based upon its original complaint. The trial court disagreed, as do we.

       In Chesak v. Northern Indiana Bank and Trust Co., 551 N.E.2d 873, 875 (Ind. Ct.

App. 1990),2 we noted that the difference between the contractual doctrines of “accord and

satisfaction” and “compromise and settlement” is just as “shadowy” today as it was when our

supreme court first labeled it so in Indiana Farmers Mutual Insurance Co. v. Walters, 221

Ind. 642, 649, 50 N.E.2d 868, 870 (1943). Accordingly, we found it “unnecessary to

exhaustively explore the respective nuances of these contractual doctrines.” Chesak, 551

N.E.2d at 875. Instead, we simply explained as follows:

       An “accord” is an agreement between a debtor and creditor where the creditor
       accepts a lesser sum in lieu of a greater liquidated or unliquidated amount

       2
           Ziebell’s attempts to distinguish Chesak from the case at bar are unavailing.

                                                       8
       while a “compromise” is similar except that the term may refer to real estate
       disputes but is used only where the claim is in dispute. The “satisfaction” and
       “settlement” aspects of the respective doctrines refer to the performance of the
       agreement.

Id. (internal citations omitted). We went on to quote our supreme court for the well-settled

proposition that:

       an accord not followed by satisfaction was not a bar [to suit on the original
       claim]. By refusing or failing to pay the agreed amount, be it called an accord
       or compromise, the obligor is in no position to complain if the obligee
       abandons the compromise and resorts to his original cause of action.

Id. (quoting Walters, 221 Ind. at 649, 50 N.E.2d at 870-71). Although we did not expand

further in Chesak, the Walters court explained that if the obligee/creditor chooses to sue on

the compromise agreement rather than resorting to his original cause of action, “we see no

good reason why the action ought not lie.” Walters, 221 Ind. at 649, 50 N.E.2d at 871.

Therefore, in a case where a debtor fails to pay pursuant to an accord and satisfaction or a

compromise and settlement, the creditor has the choice to either resort to the original cause of

action or to sue on the accord or compromise agreement.

       As discussed by the trial court, it is undisputed that Ziebell failed to make any

payment under the Settlement Agreement. Milford Grain then had a choice on how to

proceed. We agree with the trial court that, as in Chesak, because Ziebell has not satisfied

his accord or compromise with Milford Grain, he is in no position to complain regarding

Milford Grain’s resort to suit, including summary judgment, on its original complaint.

Ziebell has not met his burden to establish a meritorious defense to the trial court’s entry of

summary judgment in favor of Milford Grain.


                                               9
      In sum, Ziebell has failed to demonstrate that relief under Trial Rule 60(B) is both

necessary and just. The trial court did not abuse its discretion when it denied Ziebell’s

motion for relief from judgment. The judgment of the trial court is affirmed.

      Affirmed.

RILEY, J., and BAILEY, J., concur.




                                            10
