MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                          Sep 01 2017, 9:01 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Richard A. Cook                                          Peter H. Pogue
Yosha Cook & Tisch                                       Justin C. Kuhn
Indianapolis, Indiana                                    Schultz & Pogue, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paula Adams,                                             September 1, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A05-1702-CT-349
        v.                                               Appeal from the Marion Superior
                                                         Court
Shadrach Gonqueh and                                     The Honorable John M.T.
Amazing Family Dental, P.C.                              Chavis, II, Judge
d/b/a Amazing Family Dental,                             Trial Court Cause No.
Appellees-Defendants                                     49D05-1501-CT-3147




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017            Page 1 of 9
[1]   Paula Adams and two co-plaintiffs filed a negligence and dental malpractice

      complaint against Dr. Shadrach Gonqueh and Amazing Family Dental

      (collectively, the appellees). The appellees filed a motion for summary

      judgment against all plaintiffs. The trial court ruled in the appellees’ favor on

      all of Adams’s claims, explicitly noting that its order was final; it ruled in the

      appellees’ favor on some of the other plaintiffs’ claims, noting that those orders

      were not final as certain claims remained to be litigated.


[2]   Adams sought to have the order certified for interlocutory appeal and, as the

      thirty-day deadline to appeal from a final judgment had passed, sought relief

      pursuant to Indiana Trial Rule 60(B). The relief she sought was to have the

      summary judgment order re-cast as a non-final judgment. The trial court found

      that she was not entitled to relief pursuant to Indiana Trial Rule 60(B) and held

      that its original order remained final as to her. She now appeals.


                                                        Facts
[3]   Adams received dental work from Dr. Gonqueh at Amazing Family Dental on

      June 19, June 21, June 26, and July 26, 2012. Adams alleges that she was

      consciously sedated for an extraction procedure on June 21, 2012, and while

      she went in expecting that Dr. Gonqueh would extract only one tooth, he in

      fact extracted eleven.1 Newell Boyce and Donald Scribner also received dental




      1
        The appellees strenuously contest these allegations, but we need not go into the substance of the contested
      facts as they are not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017             Page 2 of 9
      work from Dr. Gonqueh. Boyce and Scribner claim that they went to Amazing

      Family Dental for minor dental problems and were each told that if they did not

      have all of their teeth removed, they were in immediate danger of heart attack,

      stroke, and/or death. Both Boyce and Scribner consented to having all their

      teeth removed.


[4]   On January 30, 2015, Adams, Boyce, and Scribner filed a joint complaint

      against Dr. Gonqueh and Amazing Family Dental. They collectively raised

      claims of negligence, malpractice, the Indiana Crime Victim’s Relief Act

      (CVRA),2 and a violation of the Racketeer Influenced and Corrupt

      Organizations (RICO) Act.3


[5]   On February 8, 2016, the appellees filed a motion for summary judgment

      against Adams, arguing that all of her claims are time barred because they were

      not filed before the two-year statute of limitations expired4 and that, with

      respect to the CVRA and RICO counts, she failed to allege sufficient facts

      supporting those claims for relief. The same day, the appellees also filed

      motions for partial summary judgment against Boyce and Scribner, arguing that




      2
          Ind. Code § 34-24-3-1 et seq.
      3
          Ind. Code § 35-45-6-1 et seq.; 18 U.S.C. § 1961 et seq.
      4
        See Ind. Code § 34-11-2-3 (providing that any kind of action for damages stemming from professional
      services rendered by, in relevant part, dentists, must be brought within two years from the date of the alleged
      neglect).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017             Page 3 of 9
      they had not alleged facts supporting their claims for relief under the CVRA

      and RICO counts.


[6]   On August 19, 2016, the trial court granted full summary judgment against

      Adams on all claims, finding that her claims for negligence and malpractice

      were time-barred and that her CVRA and RICO counts failed to state a cause of

      action upon which relief may be granted. The trial court explicitly noted that

      its judgment was final. Appellant’s App. Vol. II p. 12. The trial court also

      granted partial summary judgment against Boyce and Scribner on their CVRA

      and RICO counts. This order, however, was only a partial summary judgment

      order, as their respective claims for negligence and malpractice remain to be

      litigated.


[7]   On September 19, 2016, Adams, Boyce, and Scribner filed a joint motion to

      certify the trial courts’ summary judgment orders for interlocutory appeal. In

      response, Amazing Family Dental argued that Adams was required to file a

      traditional notice of appeal because the summary judgment order against her

      was full and final.


[8]   On October 12, 2016, Adams filed an alternative motion for relief from

      judgment pursuant to Indiana Trial Rule 60, arguing that her claims were so

      intertwined with those of Boyce and Scribner that she needed to seek

      certification of an interlocutory appeal. She also argued that, if that

      interpretation was erroneous, it was mistake and/or excusable neglect, and




      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017   Page 4 of 9
      asked that the trial court grant her relief from the judgment by converting its

      order to a non-final order.


[9]   Following a hearing, on January 20, 2017, the trial court denied Adams’s

      motion for relief from judgment. In relevant part, the trial court found as

      follows:


              Plaintiff Adams has requested that, pursuant to Trial Rule
              60(B)(1), this court vacate its August 19, 2016, final order
              granting summary judgment against Paula Adams and re-enter
              the judgment as a non-final order. . . . The August 19, 2016,
              Order was a final judgment pursuant to Indiana Appellate Rule
              2(H)(2). Adams has failed to show extraordinary circumstances
              and has admitted that her interpretation of the order was in error.
              Moreover, “Trial Rule 60(B) does not provide a vehicle whereby
              a party may be afforded relief from his mistake of law.”
              [Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind. Ct. App. 2002).]
              Accordingly, Adams has made no showing of exceptional
              circumstances that would invoke the trial court’s equitable
              powers under Trial Rule 60(B).


              . . . The Court’s August 19, 2016 summary judgment order
              entered as to Paula Adams remains a final judgment pursuant to
              Indiana Trial Rule[s] 54(B) and 56(C).


      Appellant’s App. Vol. II p. 9-10.5 Adams now appeals.




      5
       On January 25, 2017, the trial court denied the motion to certify its partial summary judgment orders
      against Boyce and Scribner for interlocutory appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017          Page 5 of 9
                                    Discussion and Decision
[10]   Adams appeals the trial court’s order denying her motion for relief from

       judgment pursuant to Indiana Trial Rule 60(B). Trial Rule 60(B), in relevant

       part, provides that the trial court may relieve a party from a judgment in the

       case of mistake or excusable neglect. This Court has noted that 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.” Dillard v. Dillard, 889

       N.E.2d 28, 34 (Ind. Ct. App. 2008). On a motion for relief from judgment, the

       burden is on the movant to demonstrate that relief is both necessary and just.

       Id. at 33. Our Supreme Court has cautioned that “[t]he trial court’s discretion is

       necessarily broad in this area as any determination of excusable neglect must

       turn upon the unique factual background of each case.” Siebert Oxidermo, Inc. v.

       Shields, 446 N.E.2d 332, 340 (Ind. 1983). We will reverse a trial court’s ruling

       on a motion for relief from judgment only if it is clearly against the logic and

       effect of the facts and inferences before the trial court. Ford Motor Co. v.

       Ammerman, 705 N.E.2d 539, 558 (Ind. Ct. App. 1999).


[11]   Initially, we note that it is apparent both from the context of the litigation and

       from the contents of the trial court’s summary judgment order regarding Adams

       that the order was a final judgment. The order itself states that there is “no just

       reason for delay” and that the order is a “final judgment” in favor of Dr.

       Gonqueh and Amazing Family Dental and against Adams, “as to any and all

       claims against Defendants.” Appellant’s App. Vol. II p. 12. And the order did,

       indeed, dispose of all of Adams’s claims against both Dr. Gonqueh and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017   Page 6 of 9
       Amazing Family Dental. Consequently, there can be no genuine dispute that

       the order was a final judgment.


[12]   Adams argues that because her claims are so intertwined with the claims of

       Boyce and Scribner, the summary judgment order was not final. We disagree.

       No rule prevents a trial court from treating parties to a lawsuit differently from

       one another. See, e.g., Peals v. Cty. of Vigo, 783 N.E.2d 781, 783 (Ind. Ct. App.

       2003) (trial court granted summary judgment with respect to fewer than all the

       parties but order was nonetheless a final and appealable judgment for the

       affected party). Indeed, the Indiana Trial Rules contemplate precisely this

       situation. Indiana Trial Rule 54(B) provides as follows regarding judgments

       upon multiple claims or involving multiple parties:

               When more than one (1) claim for relief is presented in an action,
               whether as a claim, counterclaim, cross-claim, or third-party
               claim, or when multiple parties are involved, the court may direct
               the entry of a final judgment as to one or more but fewer than all
               of the claims or parties only upon an express determination that
               there is no just reason for delay and upon an express direction for
               the entry of judgment. . . . A judgment as to one or more but
               fewer than all of the claims or parties is final when the court in
               writing expressly determines that there is no just reason for delay,
               and in writing expressly directs entry of judgment, and an appeal
               may be taken upon this or other issues resolved by the judgment;
               but in other cases a judgment, decision or order as to less than all
               the claims and parties is not final.


       Similarly, Trial Rule 56(C), which governs summary judgment proceedings,

       states that “A summary judgment upon less than all the issues involved in a

       claim or with respect to less than all the claims or parties shall be interlocutory
       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017   Page 7 of 9
       unless the court in writing expressly determines that there is no just reason for

       delay and in writing expressly directs entry of judgment as to less than all the

       issues, claims or parties.”


[13]   Here, the trial court determined that summary judgment in favor of the

       appellees was warranted on all of Adams’s claims. That it treated the claims of

       Boyce and Scribner differently has no bearing on its disposition of Adams’s

       claims. If Adams wished to appeal the summary judgment order, she was

       required to do so according to the rules governing appeals from final judgments.

       See Indiana Appellate Rule 2(H)(2) (explaining that a judgment is a “final

       judgment” if “the trial court in writing expressly determines under Trial Rule

       54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing

       expressly directs the entry of judgment . . . as to fewer than all the claims or

       parties”). Whether or not the facts of her claims are intertwined with those of

       Boyce and Scribner has no bearing on the finality of the trial court’s order.


[14]   Adams contends that her interpretation of the summary judgment order as a

       non-final order from which an interlocutory appeal must be taken was caused

       by mistake or excusable neglect and, as a result, that she is entitled to relief

       pursuant to Trial Rule 60(B). Adams, however, is not truly seeking “relief”

       from the summary judgment order. She is not seeking to have that order set

       aside; she is instead seeking to have it re-cast as a non-final order. This remedy

       is not contemplated by Trial Rule 60 or any other rule that we can find. In any

       event, a mistake in interpreting the trial and/or appellate rules is a mistake of

       law, not an act of excusable neglect. This Court has explicitly held that Rule

       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017   Page 8 of 9
       60(B) offers no relief if the situation is “the result of any fault or negligence on

       the part of the movant.” Dillard, 889 N.E.2d at 34. Given this record, we find

       no error in the trial court’s decision to deny relief to Adams pursuant to Trial

       Rule 60(B).


[15]   Finally, Adams argues that we should permit her to pursue a belated appeal

       under Appellate Rule 1, which provides that we “may, upon the motion of a

       party or the Court’s own motion, permit deviation from these Rules.” We are

       not persuaded that this case presents such extraordinary circumstances that a

       dramatic deviation from the thirty-day deadline to appeal a final judgment

       should be permitted.


[16]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1702-CT-349 | September 1, 2017   Page 9 of 9
