MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                     FILED
court except for the purpose of establishing                    Mar 29 2017, 8:32 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEES
Derek R. Molter                                         Karl L. Mulvaney
Jenny R. Buchheit                                       Nana Quay-Smith
Eric J. McKeown                                         Bingham Greenebaum Doll LLP
Ice Miller LLP                                          Indianapolis, Indiana
Indianapolis, Indiana
                                                        John K. Morris
                                                        Morris Law Office
                                                        Lafayette, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John C. Parkinson,                                      March 29, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        79A05-1607-TR-1653
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
Michael L. Parkinson and                                The Honorable Robert W.
William L. Parkinson,                                   Thacker, Special Judge
Appellees-Respondents.                                  Trial Court Cause No.
                                                        79C01-1408-TR-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017    Page 1 of 14
                                      Statement of the Case
[1]   John Christopher Parkinson (“Chris”) appeals the trial court’s June 20, 2016,

      denial of his Indiana Trial Rule 60(B) motion for relief from judgment (“the

      June 2016 Order”) in which Chris sought to have a prior judgment that

      dismissed his appeal with prejudice and assessed more than $17,000 in fees and

      costs against Chris (“the Dismissal Order”) vacated. In the June 2016 Order,

      the court, in addition to denying the motion for relief from judgment: (1)

      denied Chris’s request for a continuance, (2) denied Chris’s request for a stay of

      proceedings, (3) set the pending request for proceedings supplemental for a

      hearing on the merits, (4) ordered Chris to show cause for his failure to appear

      at a prior-scheduled hearing on the request for proceedings supplemental, and

      (5) issued a writ of body attachment to secure Chris’s presence at the next-

      scheduled hearing. Chris raises four issues for our review, which we

      consolidate and restate as the following three issues:

              1.      Whether the trial court erred when it denied Chris’s
                      Indiana Trial Rule 60(B) motion for relief, which he had
                      premised on the trial court’s alleged failure to comply with
                      the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901-
                      4043 (2016) (“the Act”), in the Dismissal Order;


              2.      Whether the trial court erred either when it denied the
                      motion to stay Chris had filed along with his Rule 60(B)
                      motion or when it issued a writ of body attachment to
                      compel Chris’s appearance before the court despite his
                      military duties; and




      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 2 of 14
              3.      Whether the trial judge’s comments, demeanor, or
                      conduct toward Chris requires the judge to recuse himself
                      from further proceedings.


[2]   We hold that the basis for Chris’s Rule 60(B) motion for relief from judgment

      was known to Chris at the time the court entered the Dismissal Order,

      including the award of fees and costs the court ordered with that judgment.

      Hence, to obtain appellate relief from the Dismissal Order, Chris was required

      to file a notice of appeal within thirty days of that judgment. Chris was not

      permitted, instead, to seek relief nearly one year later under Rule 60(B), and a

      trial court does not abuse its discretion when it denies an improper motion.

      Further, as the denial of the improper Rule 60(B) motion is the only basis upon

      which Chris invokes appellate review, we decline to reach the merits of Chris’s

      additional arguments regarding the denial of the motion to stay and the

      issuance of the writ of body attachment. We also decline to review Chris’s

      argument that the trial judge’s comments require the judge to recuse himself

      from further proceedings; the trial judge has already assigned this matter to

      another trial court. Accordingly, we affirm the trial court’s judgment on the

      merits of the June 2016 Order.


                                 Facts and Procedural History
[3]   Chris is a Lieutenant Colonel in the United States Marine Corps on active duty

      and stationed in Doral, Florida, at the U.S. Marine Corps Forces, South, base.

      On August 27, 2014, he filed a petition to remove his brother, Michael

      Parkinson (“Michael”), and his father, William Parkinson (“William”), as the


      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 3 of 14
      trustees of The Parkinson Family Trust (“the Trust”). At Chris’s request, the

      trial court, with the Honorable Kurtis Fouts then presiding, entered a temporary

      restraining order and, later, a preliminary injunction that prohibited Michael

      and William from exercising control over the Trust during the pendency of the

      litigation. Later, Michael’s and William’s attorneys deposed Chris in Florida

      and, in doing so, incurred expenses in excess of $17,000.


[4]   In late 2014, Michael and William moved for a change of judge, and the

      Honorable Robert W. Thacker began to preside over the matter. Judge Thacker

      set a trial date for February 24, 2015. On January 21, 2015, Chris moved to

      stay the trial date for at least ninety days pursuant to the Act (“the January 2015

      Motion to Stay”). The court denied Chris’s motion after finding that he “is able

      to participate sufficiently either by counsel or by electronic means to protect his

      interests in this matter.” Appellant’s App. Vol. II at 88. Nonetheless, the court

      rescheduled the bench trial for June 23.


[5]   On June 17, Chris moved to dismiss his petition due to the hardship his claims

      had caused his family and also due to his service requirements. The court,

      however, did not rule on the petition until the start of the June 23 trial. The

      court made each of the following statements to Chris’s attorney (Chris was not

      present):


           “you all may be geniuses of the law and know your rights and
            responsibilities, but that Motion [to Dismiss] didn’t get granted.”
           “It’s been gamesmanship and games galore from where the poor old
            Special Judge sits thirty miles away from the Courthouse of the venue of
            the case.”

      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 4 of 14
           “I think [Chris] is in the wrong . . . .”
           “I don’t believe [Chris] was ever serious about accomplishing what his
            Complaint alleges is the case or was the case.”
           “[Chris has] interjected himself in affairs here in Indiana when he lives in
            Florida, and [he] has a real busy schedule and a real important job and
            [is a] real important guy, and . . . as far as I can tell the Trial Judge is just
            a piece of sand to him . . . .”

      Tr. Vol. I at 7-8, 42, 49-52. The trial court also suggested that Michael and

      William were engaged in similar behavior. E.g., id. at 44.


[6]   The court then entered the Dismissal Order, in which it granted Chris’s motion

      to dismiss with prejudice. In granting Chris’s motion to dismiss, the court

      ordered him to pay to Michael and William the fees and costs associated with

      Chris’s Florida deposition.1 The court found $17,466 to be a reasonable

      amount for those fees and costs.


[7]   Chris failed to pay the ordered amount. Accordingly, Michael and William

      initiated proceedings supplemental against Chris. After two continuances at the

      request of Michael and William—including a continuance filed one day before

      a scheduled hearing date in December, while Chris was in Indiana and ready

      and able to appear—the court held a hearing on the motion in proceedings

      supplemental on January 19. However, Chris did not appear due to a medical

      illness. The court rescheduled the hearing on the proceedings supplemental to



      1
        In his brief on appeal, Chris asserts that the trial court ordered these costs sua sponte. That is not correct.
      At the June 23 hearing, Michael made clear to the court that he had requested relief for his fees and costs,
      and he and the court whittled it down to the fees and costs associated with the Florida deposition as a
      meritorious basis for relief.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017                  Page 5 of 14
      June 20, 2016, but also scheduled a show-cause hearing for February. The

      court ordered Chris to appear at the show-cause hearing and “provide medical

      documentation . . . regarding his inability to appear at the [January] hearing.”

      Appellant’s App. Vol. II at 17.


[8]   Chris failed to appear in person at the February show-cause hearing, but his

      counsel appeared and moved to continue the hearing. Chris’s attorney also

      filed with the court medical documentation from an Army physician in which

      the physician informed the court that she had diagnosed Chris with an upper

      respiratory infection in mid-January of 2016 and that Chris was “unable to

      travel due to his persistent respiratory symptoms.” Id. at 140. The court stated

      that it would grant Chris’s motion to continue, and the court consolidated the

      show-cause hearing with the June hearing in proceedings supplemental. In

      doing so, the court stated as follows:


              [Chris] is ORDERED to appear before this Court in person and
              show cause why he should not be held in contempt for his failure
              to appear as ordered on February 17, 2016, for why he has not
              responded to discovery as ordered by this Court, for why he has
              not provided adequate answers to interrogatories, and to answer
              as to why he has not to date paid any amount toward satisfaction
              of this Court’s judgment. [Chris] shall also be prepared to
              answer as to his income and assets in proceeding[s]
              supplemental. . . .


      Id. at 18.


[9]   On June 10, Chris filed a motion for relief from the Dismissal Order pursuant to

      Indiana Trial Rule 60(B). According to Chris, the Dismissal Order was entered

      Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 6 of 14
       in violation of his federal rights under the Act. In particular, Chris asserted that

       he had “filed his [motion to dismiss] as a result [of] the Court’s denial of [the

       January 2015 Motion to Stay] . . . and his inability to defend his rights . . . in

       light of the limitations placed upon him by his active duty service.” Id. at 150.

       Thus, Chris continued, the Dismissal Order was in violation of federal law.

       Chris further requested a stay of the proceedings supplemental, also pursuant to

       the Act (“the June 2016 Motion to Stay”). Thereafter, Chris separately moved

       to continue the show-cause hearing under the Act.


[10]   Chris attached to his motion to continue a letter from the United States Marine

       Corps Chief of Staff, which explained that Chris’s presence on base in Florida

       was “indespensible [sic] to this command” and that leave to attend the court

       proceedings in Indiana would be in “conflict” with Chris’s “current military

       duties.” Id. at 171. An additional letter from a Staff Judge Advocate with the

       Marine Corps agreed with the Chief of Staff’s assessment. Id. at 172.


[11]   Nonetheless, on June 20, 2016, the court held the show-cause hearing and the

       hearing in proceedings supplemental. At that hearing, the court made each of

       the following statements:


            “I don’t agree with [Chris] using his [military] status willy nilly. I think
             it’s wrong. I think it’s wrong legally. I think it’s wrong personally. You
             can’t start a lawsuit and act like you’re going to be a private citizen in
             that capacity[] and then when there’s things that have to be done for your
             benefit and to your detriment potentially and then claim some status that
             keeps you from participating. That’s as non[-]due process, unfair, and
             unconstitutional as you can get. And I don’t care if you’re . . . a general
             in the Pentagon. So that’s just not right, and that’s what keeps going on

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 7 of 14
               here. This person can attend by video conference, by telephone, in
               person. He came when he wanted to. Now he doesn’t want to. He
               doesn’t want to come and stand at oath and be asked simple questions
               about whether or not he can pay a judgment. So that’s just wrong . . . .”
              “[T]hey can play all the games they want to play. It’s a game as far as
               I’m concerned, and it’s not fair . . . . It has to do with a bunch of people
               pulling their ties up around their neck[s] and acting like they’re—kind of
               got some importance that goes back a thousand years and forward a
               thousand years.”
              “[Chris is] not that important as far as I can tell through the function of
               the military operations in this day and age.”
              “I’m just a small human being as there could be. Obviously [Chris] is a
               much greater, bigger, more important human being than I am. Both in
               my job and in my persona, clearly.”
              “really what it boils down to is the legal reasons you’re citing are—he’s a
               big man. He’s an important man. It’s as if he’s got executive privilege.
               That he’s the President of the United States, and we know it can be done
               away with so I look at him as though he thinks he’s the President of the
               United States, and he’s claiming that I can’t do anything to him because
               I’m just a State Court Judge in Indiana—out in rural Indiana. That I’ve
               got no power—that I’m stupid, and nobody’s going to listen to me . . . . I
               got nothing when it comes to a grown man who is a citizen of the United
               States who happens to work for the Federal government who doesn’t
               have to come to Court and just tells me so in no uncertain terms.”

       Tr. Vol. II at 13-20. The trial court made similar comments later in the hearing

       as well. See id. at 26, 32-35. And the court expressed frustration with Michael.

       E.g., id. at 14.


[12]   Following the hearing, the court issued the June 2016 Order. In that order, the

       court denied Chris’s motion for relief under Trial Rule 60, his motion to stay

       the proceedings supplemental, and his motion for a continuance. The court

       then rescheduled the hearing on the merits of the proceedings supplemental

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 8 of 14
       request and the show-cause hearing, and the court issued a writ of body

       attachment to compel Chris’s presence at the rescheduled hearing. Thereafter,

       the trial judge removed himself from the case and reassigned the case to the

       Tippecanoe Circuit Court without objection from the parties. This appeal

       ensued.


                                     Discussion and Decision
                            Issue One: The Denial of the T.R. 60 Motion

[13]   The threshold issue Chris raises on appeal is whether the trial court abused its

       discretion when it denied Chris’s motion for relief from the Dismissal Order,

       including that order’s award of more than $17,000 in fees and costs, under

       Indiana Trial Rule 60(B). We review the trial court’s decision on a Rule 60(B)

       motion for an abuse of discretion. State v. Collier, 61 N.E.3d 265, 268 (Ind.

       2016). An abuse of discretion occurs if the decision is clearly against the logic

       and effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom. Id. (quotation marks

       omitted). A trial court also abuses its discretion if it misinterprets the law.

       DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 732 (Ind. 2015).


[14]   According to Chris, the trial court’s denial of his January 2015 Motion to Stay

       “had a domino effect on the remainder of the proceedings” and, “[f]aced with

       the dilemma of failing to appear at the trial or risking prosecution under

       military law . . . , [Chris] had to dismiss the case.” Appellant’s Br. at 21.

       However, Chris continues, “[r]ather than simply dismissing the case . . . the


       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 9 of 14
       trial court also entered an order requiring him to pay” the fees and costs

       associated with the Florida deposition. Id.


[15]   According to the Act:

               (1) Authority for stay


                       At any stage before final judgment in a civil action or
                       proceeding in which a servicemember . . . is a party, the
                       court . . . shall, upon application by the servicemember,
                       stay the action for a period of not less than 90 days, if the
                       conditions in paragraph (2) are met.


               (2) Conditions for stay


                       An application for a stay under paragraph (1) shall include
                       the following:


                       (A) A letter or other communication setting forth facts
                       stating the manner in which current military duty
                       requirements materially affect the servicemember’s ability
                       to appear and stating a date when the servicemember will
                       be available to appear.


                       (B) A letter or other communication from the
                       servicemember’s commanding officer stating that the
                       servicemember’s current military duty prevents appearance
                       and that military leave is not authorized for the
                       servicemember at the time of the letter.


       50 U.S.C. § 3932(b). The Act further provides:




       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 10 of 14
               If a servicemember, in the opinion of the court, is materially
               affected by reason of military service in complying with a court
               judgment or order, the court may on its own motion and shall on
               application by the servicemember—


                       (1) stay the execution of any judgment or order entered
                       against the servicemember; and


                       (2) vacate or stay an attachment or garnishment of
                       property, money, or debts in the possession of the
                       servicemember or a third party, whether before or after
                       judgment.


       50 U.S.C. § 3934(a).


[16]   There is no question that Chris provided documentation with his January 2015

       Motion to Stay that would have satisfied the requirements of Section 3932. See

       Appellant’s App. Vol. II at 46-48. As such, Chris emphasizes that the Act

       provides that, in such circumstances, the trial court “shall” stay the

       proceedings, 50 U.S.C. § 3932(b), and, therefore, that the trial court here erred

       when it did not do so. That error, according to Chris, compelled him to file his

       motion to dismiss and likewise entitles him to relief from the court’s judgment

       on that motion. Specifically, Chris avers that the court’s purported error under

       the Act in denying the January 2015 Motion to Stay entitles him to relief from

       the Dismissal Order under Indiana Trial Rule 60(B)(1) as “excusable neglect”




       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017   Page 11 of 14
       and under 60(B)(8) for “any reason justifying relief from the operation of the

       judgment.” Ind. Trial Rule 60(B)(1), (8).2


[17]   However, we agree with Michael and William that Chris’s use of Trial Rule

       60(B) here was improper. This court has consistently stated that Trial Rule

       60(B) cannot be used as a substitute for a direct appeal or to revive an expired

       attempt to appeal.3 See Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 279

       (Ind. Ct. App. 2000), trans. denied; Cullison v. Medley, 619 N.E.2d 937, 945 (Ind.

       Ct. App. 1993), trans. denied. As Dean Harvey has made clear:


                The general rule is that one must appeal a judgment within the
                time allowed and not sit idly by, letting the time to appeal expire,
                and thereafter filing a Rule 60(B) motion in an attempt to revive
                his remedy of appeal . . . . Relief is only properly provided under
                Rule 60(B) after a failure to perfect an appeal when there is some
                additional fact present justifying extraordinary relief which allows
                a trial court to invoke its equitable powers to do justice. The
                additional factors available for providing relief are those found in
                subsections (1) through (8) . . . .


       William F. Harvey, 4 Ind. Prac. 222 (3d ed. 2003) (emphasis in original). In

       other words, Rule 60(B) does not provide for an end-run around the usual

       appellate process. See, e.g., Vazquez v. Dulios, 505 N.E.2d 152, 154 (Ind. Ct.

       App. 1987).



       2
         Chris further notes that his motion for relief was timely under Rule 60(B) as it was filed less than one year
       after the Dismissal Order. And Chris contends that he has alleged a meritorious claim, namely, that Michael
       had exerted undue influence on William and that William was not a competent trustee.
       3
         We note that Chris’s attorneys in the instant appeal were not his attorneys at the time of, or within thirty
       days of, the Dismissal Order.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017              Page 12 of 14
[18]   Here, the additional fact that Chris relied on in support of his motion under

       Rule 60(B)—the trial court’s purportedly erroneous denial of his January 2015

       Motion to Stay—was well known to Chris before, during, and within thirty

       days after the entry of the Dismissal Order.4 As such, if he had an issue with

       the Dismissal Order, in part or in whole, he could have and should have filed a

       direct appeal. He did not. Thus, Rule 60(B) was not a procedural path

       available to Chris on this record. The trial court did not err when it denied his

       motion for relief under Rule 60(B).


                            Issue Two: Denial of June 2016 Motion to Stay
                                & Issuance of a Writ of Body Attachment

[19]   Chris also asserts that the trial court erred under the Act when it denied his

       June 2016 Motion to Stay, which Chris had filed contemporaneously with his

       motion for relief from judgment, and when the court issued a writ of body

       attachment with the June 2016 Order. But we decline to reach those issues.

       Chris’s premise for invoking appellate review over those issues is the trial

       court’s denial of his improper Rule 60(B) motion for relief from judgment. As

       such, to consider the additional issues Chris raises on appeal “would be

       equivalent to allowing the . . . T.R. 60(B) motion, which was not properly

       before the trial court . . . .” Id. Again, Rule 60(B) “may not be used” to secure



       4
         We acknowledge Michael and Williams’s additional argument that Chris’s original motion to dismiss was
       based on multiple grounds, only one of which was the trial court’s denial of the January 2015 Motion to
       Stay. Under our abuse of discretion standard of review, it is clear that the trial court could have just as
       readily denied the motion for relief from judgment and affirmed the Dismissal Order on one of Chris’s other
       grounds in his motion to dismiss, such as his assertion that his petition had caused a hardship on his family
       that he had since sought to avoid.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017           Page 13 of 14
       appellate jurisdiction that has otherwise been forfeited. See, e.g., id. We dismiss

       these additional issues raised by Chris. Id.


                                 Issue Three: The Trial Court’s Comments

[20]   Finally, we acknowledge that Chris separately argues on appeal that the nature

       and the extent of the trial court’s remarks, at two hearings more than one year

       apart, were out of bounds.5 However, the Chronological Case Summary

       unmistakably demonstrates that the trial judge has removed himself from this

       case going forward, and none of the parties have objected. Thus, insofar as

       Chris seeks an order from this court to remove the trial judge from further

       proceedings, such relief is no longer available.6 Accordingly, we decline to

       consider this issue. In sum, we affirm the trial court’s judgment.


[21]   Affirmed.


       Bailey, J., and May, J., concur.




       5
         While we do not approve of the trial court’s remarks, we also note that it was clear that the court was
       frustrated with the parties. Namely, as explained above, the court was frustrated by the manner in which the
       parties had conducted themselves, which the court described as “gamesmanship.” Tr. Vol. I at 7-8.
       6
         Insofar as Chris’s argument here is that the Dismissal Order should be vacated in light of the trial court’s
       comments, that issue was available to Chris for direct appeal, and we do not consider it now.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1607-TR-1653 | March 29, 2017              Page 14 of 14
