      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D),                            May 17 2016, 9:13 am
      this Memorandum Decision shall not be                                  CLERK
      regarded as precedent or cited before any                          Indiana Supreme Court
                                                                            Court of Appeals
      court except for the purpose of establishing                            and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANTS                                 ATTORNEY FOR APPELLEE
      Stephen W. Thompson                                      Cynthia A. Muse
      Darron S. Stewart                                        State Farm Litigation Counsel
      Stewart & Stewart Attorneys                              Indianapolis, Indiana
      Carmel, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Ocie Williams and                                        May 17, 2016
      Michael Williams,                                        Court of Appeals Case No.
      Appellants-Plaintiffs,                                   32A05-1506-CT-552
                                                               Appeal from the Hendricks
              v.                                               Superior Court
                                                               The Honorable Stephenie LeMay-
      Queen Nails of Avon, LLC,                                Luken, Judge
      Appellee-Defendant.                                      Trial Court Cause No.
                                                               32D05-1402-CT-17



      May, Judge.


[1]   Ocie and Michael Williams appeal a summary judgment for Queen Nails of

      Avon and the denial of the Williamses’ motion for relief from judgment. We

      affirm.

      Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016         Page 1 of 8
                                 Facts and Procedural History
[2]   In March 2012, Ocie Williams went to Queen Nails for a manicure. She was

      familiar with the salon and had been there about ten times before. At some

      point she went across the room to wash her hands. On her way back to the

      manicure station, she tripped over a raised platform for a pedicure station.

      There were no warning signs to indicate the platform was raised.


[3]   The Williamses sued Queen Nails, and in December 2014 Queen Nails moved

      for summary judgment. The Williamses’ counsel sought, and was granted, two

      extensions of time to respond to that motion because he wanted to depose the

      owner of Queen Nails. In April 2015, counsel left the law firm without taking

      the deposition or informing other members of the firm of the deadline for

      responding to the summary judgment motion.


[4]   The deadline passed without any response from the Williamses as to Queen

      Nails’ summary judgment motion, and the trial court granted summary

      judgment for Queen Nails in May 2015. In November 2015, the Williamses

      moved for relief from judgment, and the trial court denied their motion. It

      found excusable neglect based on the actions of the Williamses’ counsel, but

      found the Williamses “have no meritorious claim, [sic] they could have

      presented in defense of the Summary Judgment Motion.” (App. at 10.)




      Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016   Page 2 of 8
                                     Discussion and Decision
                                           Relief from Judgment

[5]   We review the denial of a motion for relief from judgment under Indiana Trial

      Rule 60(B) only for an abuse of discretion because such a motion is addressed

      to the equitable discretion of the trial court. Goldsmith v. Jones, 761 N.E.2d 471,

      473 (Ind. Ct. App. 2002), reh’g denied. An abuse of discretion will be found only

      when the trial court’s judgment is clearly erroneous. Id. A trial court’s action is

      clearly erroneous when it is against the logic and effect of the facts before it and

      the inferences that may be drawn therefrom. Id. In ruling on a Rule 60(B)

      motion, the trial court is required to balance the alleged injustice suffered by the

      party moving for relief against the interest in the finality of litigation. Id. at 474.


[6]   Rule 60(B) affords relief in extraordinary circumstances that are not the result of

      any fault or negligence on the part of the movant. Id. The burden is on the

      movant to establish grounds for relief. Id. A party seeking to set aside a default

      judgment must establish not only grounds for relief under Rule 60(B), but also a

      meritorious defense to the judgment. Bennett v. Andry, 647 N.E.2d 28, 34 (Ind.

      Ct. App. 1995).


[7]   A meritorious defense is one showing that if the case were retried on the merits,

      there would be a different result. Id. at 35. A party seeking to set aside a

      judgment must make a prima facie showing of a good and meritorious defense.

      Id. It is not enough to merely allege that, but for excusable neglect, the action

      would have been defended. Id.


      Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016   Page 3 of 8
[8]    In showing a meritorious defense, “the catalyst needed to obtain the proper

       relief is some admissible evidence which may be in the form of an affidavit,

       testimony of witnesses, or other evidence obtained through discovery.” Id.

       (emphasis in original). Such admissible evidence must be presented to the trial

       court that would indicate the judgment would not remain unchanged and “an

       injustice would be foisted upon the defaulted party” if the judgment were

       allowed to stand. Id.


[9]    We acknowledge that panels of this court have not always required

       “admissible” evidence. In Shane v. Home Depot USA, Inc., 869 N.E.2d 1232,

       1238 (Ind. Ct. App. 2007), we reasoned that it was “well within the trial court’s

       discretion to determine whether the amount and/or the nature of evidence

       presented in support of a motion to set aside judgment indeed satisfies the

       meritorious [claim] requirement of a prima facie showing.” Id. We noted the

       preliminary nature of a prima facie showing and that acquisition and preparation

       of admissible evidence during such initial stages of a case is especially difficult.

       Id. “It is up to the trial court to determine on a case-by-case basis whether a

       movant has succeeded in making a prima facie allegation.” Id.


[10]   The Williamses did not satisfy either standard. In Shane, counsel provided an

       affidavit stating there appeared to be defenses to both liability and damages.

       The affidavit was accompanied by photographs of the area where Shane was

       injured, an EMS report, and a nurse’s note. That, we held, was enough:

               [Counsel’s] affidavit is based upon her review of photographs of
               the accident scene and Mr. Shane’s medical records, which were
       Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016   Page 4 of 8
                the only documents available to her in the short time between her
                receipt of the case and the hearing. The Shanes do not suggest
                that these items, once authenticated, might be inadmissible at
                trial. In fact, the Shanes themselves produced the records and
                photographs to Gershman-Brown. With or without the
                admission of the documents referred to in the affidavit, the trial
                court acted well within its discretion in setting aside the default
                judgment against Gershman-Brown.


       Id.


[11]   In the case before us, by contrast, the trial court determined the Williamses had

       no meritorious claim because their “entire argument regarding the meritorious

       claim 1 is speculation based on a deposition that never occurred.” (App. at 11.)

       That was not clearly erroneous.


[12]   The Williamses’ new counsel submitted an affidavit that indicated what Queen

       Nails’ defense might be, but unlike the affidavit in Shane, it was accompanied

       by no evidence, admissible or otherwise. In Munster Cmty. Hosp. v. Bernacke, 874

       N.E.2d 611, 614 (Ind. Ct. App. 2007), Bernacke did nothing more than make a

       bald assertion that he “has a meritorious claim.” That, without more, was

       insufficient to warrant reversal under Rule 60(B). Id. The same is true in this




       1
         In their motion, the Williamses alleged only that their neglect was excusable - they did not address, or even
       mention, the meritorious claim requirement. In a memorandum that accompanied the motion, the
       Williamses assert a meritorious defense, but support that assertion with only an allegation counsel “was
       diligently working . . . to arrange the deposition” of the shop owner in order to “substantiate this meritorious
       claim.” (App. at 69.)

       Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016                   Page 5 of 8
       case. The trial court did not abuse its discretion in denying relief from

       judgment.


                                             Summary Judgment

[13]   On review of a motion for summary judgment, our standard is the same as that

       of the trial court: summary judgment is appropriate only where the evidence

       shows there is no genuine issue of material fact and the moving party is entitled

       to judgment as a matter of law. City of Beech Grove v. Beloat, No. 49S02-1604-

       CT-165, 2016 WL 1329559, at *2 (Ind. 2016). The facts and reasonable

       inferences are construed in favor of the non-moving party. Id. The court may

       rely only on the evidence the parties designated, id., and on appeal we consider

       only those matters that were designated at the summary judgment stage of the

       proceedings. U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 922 (Ind. Ct. App.

       1999), trans. denied. Summary judgment is not appropriate just because the non-

       movant appears unlikely to prevail at trial. Beloat, No. 49S02-1604-CT-165,

       2016 WL 1329559, at *2. Instead, we err on the side of letting marginal cases

       proceed to trial on the merits, rather than risk short-circuiting meritorious

       claims. Id.


[14]   The grant of Queen Nails’ summary judgment motion was not error, as the

       Williamses did not show there was a genuine issue of fact for trial. In their

       brief, the Williamses direct us to a page in Ocie Williams’ deposition that they

       characterize as testimony that “warning signs, such as ‘height’ and ‘step,’ or

       ‘caution’ should have been posted either on the wall next to the area or on the

       edge of the platform.” (Appellants’ Br. at 16.) But that part of the deposition
       Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016   Page 6 of 8
       was not specifically designated to the trial court; we therefore cannot find a

       genuine issue of fact. 2


[15]   Trial Rule 56(C) requires specific designation of each material issue of fact that

       a party asserts precludes entry of summary judgment and the evidence relevant

       thereto. The purpose of that requirement is to decrease the amount of

       evidentiary material trial courts are required to sift through in ruling on

       summary judgment motions. O’Connor by O’Connor v. Stewart, 668 N.E.2d 720,

       721-22 (Ind. Ct. App. 1996). Neither the trial court nor this court on appeal

       may look beyond the evidence specifically designated to the trial court in ruling

       on a motion. Id. at 722. Designating various pleadings, discovery material,

       and affidavits in their entirety does not meet the specificity requirement of Rule

       56(C). Id. Unless a document in its entirety is required as designated

       evidentiary matter, regardless of how concise or short the document is, in order

       to be properly designated, specific reference to the relevant portion of the

       document must be made. Id. Rule 56(H) provides: “No judgment rendered on

       the motion shall be reversed on the ground that there is a genuine issue of

       material fact unless the material fact and the evidence relevant thereto shall

       have been specifically designated to the trial court.”




       2
        In its brief, Queen Nails directs us to its designation, which does not include the page on which the
       Williamses rely. The Williamses did not submit a reply brief or otherwise respond to that statement in the
       Queen Nails’ brief.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016                Page 7 of 8
[16]   As the designated evidence did not reveal a genuine issue of fact, summary

       judgment for Queen Nails was not error.


                                                 Conclusion
[17]   The denial of the Williamses’ motion for relief from judgment was not error, as

       they did not show they had a meritorious claim. Queen Nails was entitled to

       summary judgment because no designated evidence demonstrated a genuine

       issue of fact for trial. We accordingly affirm the trial court.


[18]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1506-CT-552 | May 17, 2016   Page 8 of 8
