MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jul 12 2016, 8:34 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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Arlin Douglas Stephens                                    Kevin M. Quinn
Speedway, Indiana                                         Bose McKinney & Evans LLP
                                                          Indianapolis, Indiana
Eric C. Bohnet
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gateway West Townhouse                                    July 12, 2016
Association,                                              Court of Appeals Case No.
Appellant-Defendant,                                      49A02-1510-PL-1687
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Timothy Oakes,
George Palmer,                                            Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49D02-1406-PL-18956



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016         Page 1 of 6
                                           Case Summary
[1]   Gateway West Townhouse Association (Gateway) filed a Trial Rule 60(B)

      motion for relief from judgment claiming it discovered new evidence that would

      have led to a different result in the trial court’s earlier decision to enforce a

      settlement agreement between Gateway and George Palmer. The trial court

      denied Gateway’s motion. Finding nothing in the record that prevented

      Gateway from discovering the evidence or presenting the arguments it now

      claims would have led to a different result in the original proceedings, we affirm

      the trial court’s decision.



                            Facts and Procedural History
[2]   George Palmer owns a unit in the Gateway West Townhouse community in

      Indianapolis. In March 2013, Palmer asked Gateway to repair or replace the

      clay sewer pipe that serves his unit based on his understanding of the

      community’s covenants. Gateway had Advance Septic and Sewer Service

      prepare an estimate for repairs to Palmer’s sewer line on March 16, 2013.

      Appellant’s App. p. 35. But Gateway refused to pay for the repair, claiming

      that maintenance of utility lines is the individual unit owners’ responsibility and

      that the covenants provide an easement for that purpose.

[3]   Palmer filed suit seeking a declaratory judgment that Gateway was obligated to

      repair and maintain the sewer line. Gateway initiated settlement negotiations

      in November 2014, proposing to pay for the repair or replacement of Palmer’s


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016   Page 2 of 6
      sewer line for as long as he owned the unit without admitting any pre-existing

      obligation. During negotiations, Palmer’s attorney sent an email to Gateway’s

      attorney indicating that Palmer also wanted Gateway to reimburse him for $248

      he paid to Benjamin Franklin Plumbing in October “to clear his pipes,” and

      clarifying “that [Palmer] and his wife are owners of the condo unit, and that he

      is not the sole owner.” Id. at 118. Gateway responded to the email and

      amended the proposed settlement agreement so that it included Palmer’s wife

      as a co-owner of the unit, required Gateway to pay for repairs as long as the

      Palmers were co-owners of the unit, and required Gateway to pay for the $248

      cleaning. A week later, Gateway abruptly changed its position and

      “terminate[d] all settlement negotiations in this matter.” Id. at 137.


[4]   Palmer filed a motion to enforce the unsigned settlement agreement, and, after

      a hearing, the trial court granted that motion in March 2015. Gateway filed a

      motion to correct error. The trial court granted the motion in part and issued

      an amended order enforcing the settlement agreement on May 7, 2015.

      Gateway did not appeal that order.

[5]   In July, Palmer sent a letter to Gateway requesting payment for the $248 and

      that Gateway make arrangements to repair and replace his sewer line. Gateway

      responded by requesting, among other things, a copy of the receipt for the $248

      cleaning. Palmer sent Gateway the receipt, which included a charge for a video

      inspection of his sewer line. Then, in August, Gateway filed a motion for relief

      from judgment under Trial Rule 60(B). Gateway argued that it would not have

      agreed to the terms of the settlement agreement if it had known Palmer’s wife

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016   Page 3 of 6
      was a co-owner at the time of the $248 cleaning, or if Palmer had disclosed the

      video inspection done with the $248 cleaning that showed the sewer line needed

      repairs. The trial court denied Gateway’s motion without a hearing.


[6]   Gateway now appeals.



                                  Discussion and Decision
[7]   Gateway contends that the trial court erred in denying its Trial Rule 60(B)

      motion for relief from judgment. Generally, we review the denial of a Trial

      Rule 60(B) motion for an abuse of discretion. Jahangirizadeh v. Pazouki, 27

      N.E.3d 1178, 1181 (Ind. Ct. App. 2015). However, if a trial court’s ruling is

      strictly based upon a paper record, we will review the ruling de novo. Id. The

      trial court here ruled solely upon a paper record, and so our review is de novo.1

[8]   A motion for relief from judgment under Rule 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). The

      movant must establish one of the eight grounds for relief listed in Rule 60(B).

      Id. Rule 60(B)(2) and (3) state the grounds relevant to this appeal. Rule

      60(B)(2) provides for relief from judgment based upon newly discovered

      evidence and requires a showing that “the newly discovered evidence is




      1
        We also note that Palmer filed an appendix, but not an appellee’s brief. When an appellee fails to submit a
      brief, we do not undertake the burden of developing his arguments. Rosenberg v. Robinson, 38 N.E.3d 693, 698
      (Ind. Ct. App. 2015). We apply a less stringent standard of review. Id. We may reverse if the appellant
      establishes prima facie error. Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016             Page 4 of 6
      material, is not merely cumulative or impeaching, was not discoverable by due

      diligence, and would reasonably and probably alter the result.” Outback

      Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 85 (Ind. 2006). And Rule

      60(B)(3) provides for relief when a party is prevented from fully and fairly

      presenting its case because of fraud, misrepresentation, or other misconduct of

      an adverse party. Ordinarily, relief under Rule 60(B)(3) cannot be predicated

      on matters or issues which actually were, or which with due diligence could

      have been, presented and adjudicated in the original proceedings. State Farm

      Fire & Cas. Co. v. Radcliff, 18 N.E.3d 1006, 1014 (Ind. Ct. App. 2014), trans.

      denied.


[9]   Here, we need only address Gateway’s diligence with respect to the evidence in

      question. Gateway has not shown that it acted with the diligence required

      under either Rule 60(B)(2) or (3). First, Palmer’s attorney expressly disclosed

      that Palmer’s wife was a co-owner of the unit at the outset of settlement

      negotiations. Any argument that her co-ownership presented an obstacle to

      settlement was available to Gateway during negotiations as well as at the time

      of the hearing to enforce the settlement agreement. Second, Palmer disclosed

      the $248 cleaning in November 2014, two months before the motion to enforce

      the settlement agreement was filed and over three months before the hearing on

      the motion, but Gateway waited until July 2015 to request a copy of the receipt,

      which listed the video inspection that Gateway now claims is new evidence.

      Gateway offered no explanation for why it waited so long to request the receipt.

      Further, Gateway does not cite to the record or any authority to explain why it


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016   Page 5 of 6
       believes Palmer had an affirmative duty to separately disclose the video

       inspection. Moreover, Gateway knew that the sewer line was in need of

       substantial repairs based on its own inspection that was performed in March

       2013—before this lawsuit began. Finally, as to the argument that Gateway was

       unaware that Palmer’s wife was on the deed at the time of the $248 cleaning,

       that fact was discoverable by examining the receipt and the deed. Gateway’s

       Trial Rule 60(B) motion fails because the evidence it now raises could have

       been presented during the original proceeding. See Outback, 856 N.E.2d at 85;

       State Farm, 18 N.E.3d at 1014.


[10]   Nevertheless, Gateway argues extensively in its brief that the settlement

       agreement should not have been enforced. But Gateway failed to timely appeal

       the May 7 amended order enforcing the settlement agreement. Thus, it has

       waived the argument.

[11]   Gateway failed to show that evidence of Palmer’s wife’s co-ownership and the

       video inspection of the sewer line were not available for its defense against

       Palmer’s motion to enforce the settlement agreement. Therefore, we find no

       error in the trial court’s decision to deny Gateway’s Trial Rule 60(B) motion.

[12]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-PL-1687 | July 12, 2016   Page 6 of 6
