MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Jan 25 2017, 9:00 am

court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Matthew S. Williams                                      Lee F. Baker
Fort Wayne, Indiana                                      Nationwide Mutual Insurance
                                                         Company Trial Division
                                                         Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rachel Stempien,                                         January 25, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         02A03-1609-CT-2208
        v.                                               Appeal from the Allen Superior
                                                         Court
Jacqueline R. Keating,                                   The Honorable Stanley A. Levine,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         02D03-1411-CT-506



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 1 of 7
                                          Case Summary
[1]   Rachel Stempien (“Stempien”) filed a complaint against Jacqueline R. Keating

      (“Keating”), and the trial court dismissed the case with prejudice when

      Stempien failed to comply with an order compelling discovery. Stempien filed

      a Trial Rule 60(B)(1) motion for relief from judgment, which the trial court

      denied. Stempien then filed a motion to correct error, which the trial court

      denied. Stempien now raises multiple issues on appeal, which we consolidate

      and restate as whether the trial court abused its discretion when it denied her

      motion to correct error.


[2]   We affirm.



                            Facts and Procedural History
[3]   On November 12, 2014, Stempien filed a complaint against Keating seeking

      damages for personal injuries allegedly resulting from a vehicle accident. On

      April 8, 2015, Keating answered Stempien’s complaint. Keating also served

      written discovery requests, but Stempien did not respond. Keating eventually

      filed a motion to compel, which the trial court set for hearing on August 12,

      2015. On the day of the scheduled hearing, Keating’s counsel, Lee F. Baker,

      called Stempien’s counsel, Matthew S. Williams (“Williams”). After the call,

      Williams sent the following email message:

              Lee,



      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 2 of 7
              Thanks for calling me this morning, Wednesday 8-12-15. As we
              discussed, I have called and chatted with court staff. Judge has
              agreed to vacate the hearing for today on the motion to compel.


              By way of this email, I agree to get the discovery to you within
              the next 7 days. Thank you for your patience in this matter, it is
              much appreciated.


      (Appellee’s App. Vol. 2 at 11.)


[4]   Stempien did not provide discovery within the agreed timeframe, and Keating

      filed another motion to compel. The trial court granted Keating’s motion to

      compel on October 26, 2015, and ordered Stempien to provide discovery within

      seven days. When Stempien did not comply with the order, Keating filed a

      motion to dismiss. On November 25, 2015, the trial court granted Keating’s

      motion and dismissed Stempien’s case with prejudice.


[5]   On May 23, 2016, Stempien filed a motion seeking Trial Rule 60 relief from the

      dismissal on grounds of mistake and excusable neglect. Attached to the motion

      was an affidavit signed by Williams’s legal assistant. The assistant averred to

      matters in her personal life that allegedly affected her work performance in

      2015. The assistant also cursorily mentioned that Williams had his own family

      stresses.


[6]   On May 26, 2016, the trial court denied Stempien’s Trial Rule 60 motion

      without hearing, and Stempien then filed a motion to correct error. Following

      a hearing, the trial court denied the motion to correct error.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 3 of 7
[7]   Stempien now appeals.



                                 Discussion and Decision
[8]   Stempien challenges the trial court’s denial of her motion to correct error,

      which followed the denial of her Trial Rule 60 motion seeking relief from the

      order dismissing the case. We review a ruling on a motion to correct error for

      abuse of discretion. Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1055

      (Ind. 2003). We also review a ruling on a Trial Rule 60 motion for abuse of

      discretion. Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.

      2006). The trial court abuses its discretion when its “judgment is clearly against

      the logic and effect of the facts and circumstances before it or where the trial

      court errs on a matter of law.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.

      2013).


[9]   Stempien argues that the trial court initially erred in denying her Trial Rule 60

      motion without a hearing. Trial Rule 60(B) states that “[o]n motion and upon

      such terms as are just the court may relieve a party . . . from a judgment” for

      “mistake, surprise, or excusable neglect.” Trial Rule 60 goes on to provide that

      “[i]n passing upon a motion allowed by subdivision (B) of this rule the court

      shall hear any pertinent evidence . . . .” Ind. Trial Rule 60(D). “Thus, where

      there is no ‘pertinent evidence,’ a hearing is unnecessary.” State Farm Fire &

      Cas. Co. v. Radcliff, 18 N.E.3d 1006, 1018 (Ind. Ct. App. 2014).




      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 4 of 7
[10]   In her Trial Rule 60 motion and motion to correct error, Stempien focused on

       excusable neglect as grounds warranting relief. To prevail on a claim of

       excusable neglect, the movant “must establish (1) excusable neglect and (2) a

       meritorious basis to set aside the judgment—also referred to as prejudice.”

       Thompson v. Thompson, 811 N.E.2d 888, 903 (Ind. Ct. App. 2004). “Because the

       circumstances of each case differ, there are no fixed rules or standards for

       determining what constitutes . . . excusable neglect.” Fitzgerald v. Cummings,

       792 N.E.2d 611, 614 (Ind. Ct. App. 2003). “[T]he trial court must balance the

       need for an efficient judicial system with the judicial preference for resolving

       disputes on the merits.” Id. Importantly, however:


               Although there are exceptions, generally, the negligence of an
               attorney is attributable to the client for Trial Rule 60(B) purposes,
               and attorney negligence will not support a finding of excusable
               neglect. Morequity Inc. v. Keybank, 773 N.E.2d 308, 314 (Ind. Ct.
               App. 2002), trans. denied (citing Moe v. Koe, 165 Ind. App. 98,
               104-05, 330 N.E.2d 761, 765 (1975), trans. denied); see also In re the
               Marriage of Ford, 470 N.E.2d 357, 361 (Ind. Ct. App. 1984) (“We
               believe the only equitable result as between wife and the husband
               is for [wife] to suffer the consequences of any errors of judgment
               made by the attorney she hired.”); Vanjani v. Fed. Land Bank of
               Louisville, 451 N.E.2d 667, 671 (Ind. Ct. App. 1983) (noting that
               numerous cases hold that the negligence of an attorney does not
               amount to excusable neglect as a matter of law); but see Rose v.
               Rose, 181 Ind. App. 98, 100-01, 390 N.E.2d 1056, 1058 (1979)
               (the general rule with regard to the negligence of the attorney
               being attributable to the client is tempered by Trial Rule 60(B)’s
               rule that the facts and circumstances of the particular case are
               controlling).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 5 of 7
       Thompson, 811 N.E.2d at 903-04. Moreover, an attorney has a duty to

       supervise nonlawyer assistants. Ind. Professional Conduct Rule 5.3.


[11]   Here, Stempien attached an affidavit to her Trial Rule 60 motion. The affidavit

       pointed to matters in the personal life of Williams’s assistant that the assistant

       said caused her to make certain mistakes at the law office: “I did not properly

       calendar court dates, discovery due dates, and at times I did not bring

       correspondence or court mail to Mr. Williams’[s] attention.” (Appellant’s App.

       Vol. II at 12.) The affidavit also briefly noted that Williams had family stresses

       during the same time period.


[12]   Hearing or not, the sole support for Stempien’s argument is excusable neglect.

       She has identified no other theory that potentially would have been available at

       a hearing.1 See Integrated Home Techs., Inc. v. Draper, 724 N.E.2d 641, 643 (Ind.

       Ct. App. 2000) (remanding where a Trial Rule 60 motion, on its face, presented

       no basis for relief but the movant “might, at a hearing, be able to

       demonstrate . . . [a] valid Trial Rule 60(B) basis for relief”). Rather, Stempien

       continues to focus her argument on the trial court’s purported inability to

       balance the equities when it denied her Trial Rule 60 motion. Stempien was no




       1
         For the first time on appeal, Stempien points to Trial Rule 60(B)(8) as a potential source for relief. This is a
       “catch-all” provision, allowing relief for “any reason justifying relief from the operation of the judgment,
       other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)” of the rule. T.R. 60(B)(8) (emphasis
       added). Although Stempien cites this subsection of Trial Rule 60, Stempien has not developed argument that
       any alternate basis for relief actually applied. “Issues not raised at the trial court are waived on appeal.”
       Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006). Moreover, Stempien has also waived this argument
       because it is undeveloped. Ind. Appellate Rule 46(A)(8)(a); Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012)
       (“We will not review undeveloped arguments.”).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017               Page 6 of 7
       doubt affected by the dismissal of her case. However, Stempien has established

       no basis for departure from the general rule that attorney negligence does not

       create a valid basis for Trial Rule 60 relief under a theory of excusable neglect.

       Thompson, 811 N.E.2d at 903. Ultimately, whether or not the trial court held a

       hearing, we cannot say that the trial court abused its discretion in denying

       Stempien’s motion to correct error.



                                               Conclusion
[13]   The trial court did not abuse its discretion when it denied Stempien’s motion to

       correct error.


[14]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-CT-2208 | January 25, 2017   Page 7 of 7
