                                                                           FILED
                                                                      Jan 24 2019, 10:34 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Clint A. Zalas                                             Steven P. Lammers
James F. Groves                                            Debra A. Mastrian
Lee, Groves, and Zalas                                     Smith Amundsen LLC
South Bend, Indiana                                        Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Clint Fields,                                              January 24, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-CT-247
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
Safway Group Holdings, LLC,                                The Honorable Steven L.
Appellee-Defendant                                         Hostetler, Judge
                                                           Trial Court Cause No.
                                                           71D07-1703-CT-136



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019                            Page 1 of 19
[1]   Clint Fields appeals the trial court’s vacation of a default judgment pursuant to

      Indiana Trial Rule 60(B)(8). 1 As the trial court did not abuse its discretion

      when it granted the equitable relief provided in Trial Rule 60(B)(8), we affirm.



                             Facts and Procedural History
[2]   On February 10, 2017, while working as a carpenter for Crown Corr, Inc., on

      the University of Notre Dame Crossroads construction project (“Crossroads

      project”), Fields fell more than forty feet from scaffolding. Fields sustained

      significant injuries and was still wheelchair-bound after almost a year.


[3]   Barton Malow Company (“Barton Malow”) was the general contractor on the

      Crossroads project. Crown Corr, a subcontractor, rented the scaffolding

      material from Safway. While Safway assembled and disassembled other

      scaffolding within the Crossroads project, Crown Corr assembled the

      scaffolding for the area where Fields was working.


[4]   Barton Malow insured Safway through its Company Contractor Controlled

      Insurance Program (“CCIP”), provided by XL Catlin insurance company.

      Sedwick Claims Management Services, Inc., (“Sedgwick”) managed the claims

      from CCIP participants.




      1
       Safway cross-appeals the trial court’s denial of its motion pursuant to Indiana Trial Rule 60(B)(1).
      However, as we affirm the trial court’s grant pursuant to Indiana Trial Rule 60(B)(8), we need not address
      Safway’s cross-appeal.

      Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019                              Page 2 of 19
[5]   On February 10, 2017, the day of the accident, Barton Malow conducted an

      investigation. It found Fields had “[f]ailed to maintain a 100% tie-off to a point

      independent of positioning device.” (App. Vol. II at 42). Subcontractors were

      required to abide by this safety protocol.


[6]   On February 15, 2017, the engineering firm Wiss, Janney, Elstner Associates,

      Inc., (“WJE”) conducted an “inspection of site and scaffold conditions,” (id. at

      124), “to determine a probable cause of the accident relative to the design,

      assembly, and condition of the scaffold associated with the accident.” (Id. at

      123.) WJE was informed the “scaffold was not modified in any way . . .

      following the accident, short of installing a wood barrier at the ladder to restrict

      access.” (Id. at 124.) WJE “did not observe any obvious capacity deficiencies

      with the design.” (Id.) WJE observed the scaffold was in “good condition with

      the exception of the bracket damage at one end of the [horizontal rail that fell

      with Fields.]” (Id. at 126.) WJE determined this type of damage “suggests the

      bracket was either not connected or became disconnected prior to the accident.”

      (Id.) Therefore, WJE listed the probable cause of the accident was Fields’

      weight “overloading” the north bracket connection “because the south bracket

      was not securely connected.” (Id. at 127.)


[7]   On March 28, 2017, Fields filed suit against Safway, asserting negligence and

      products liability claims. Safway was served on March 31, 2017. Assistant

      General Counsel of Safway Chris Schilder reviewed the complaint and

      forwarded it to Jennifer Boland, the “Insurance and Wrap Up Advisor for

      Safway Group Holding, LLC,” (id. at 44), so she could provide it to Barton

      Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019        Page 3 of 19
      Malow. Schilder would have referred general liability lawsuits directly to local

      counsel, but because Safway participated in the CCIP under Barton Malow, the

      claim had to be forwarded to Barton Malow. Barton Malow would then send it

      to Sedgwick, which was to manage the claim for the CCIP and retain counsel to

      defend the claim.


[8]   When Boland received the complaint, April 3, 2017, she forwarded it to Brian

      McGrath, the insurance broker for CCIP. McGrath then forwarded it to Barton

      Malow as the general contractor. On April 4, 2017, Barton Malow sent the

      complaint to Sedgwick for handling. Jeff Marlowe, team leader at Sedgwick,

      reviewed the complaint and directed his team to contact Fields’ counsel Clint

      Zalas, to “to obtain an extension of time to answer the Complaint filed in this

      case.” (Id. at 48.)


[9]   Corky Butler, the initial claims professional at Sedgwick, allegedly called Zalas

      and left a message; however, the trial court refused to consider whether that call

      was made because there was no evidence of the call beyond an affidavit by

      Marlowe, making the statement inadmissible hearsay. Butler questioned

      whether the claim was covered by CCIP or by Safway’s general liability

      insurance policy. Although Butler attempted to contact numerous people to

      determine the appropriate coverage, Butler was unable to determine whether

      the claim should be covered by CCIP or by Safway’s general liability insurance

      policy. Butler continued on the assumption Safway was to retain its own

      counsel through its own general liability insurance coverage.



      Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019      Page 4 of 19
[10]   Boland and Schilder were out of the office at various times during the month of

       April. Along with his other duties, Schilder was involved in the annual audit of

       Safway. Additionally, Safway had been “acquired by [its] competitor on March

       20 . . . so [Schilder] was working a lot[.]” (Id. at 73-74.) Schilder was

       appointed a “functional leader for th[e] integration process.” (Id. at 74.)

       Neither Boland nor Schilder took further action with regard to Fields’ lawsuit.


[11]   No counsel entered an appearance on behalf of Safway, and no answer was

       filed in response to the complaint, so on April 25, 2017, Fields filed a motion

       for default judgment. On April 26, 2017, the trial court granted the motion,

       entering an order of default as to liability but reserving the question of damages.


[12]   Boland, unaware of the partial default judgment, followed up with McGrath on

       April 26, 2017, and on April 27, 2017. She also contacted several people at

       Barton Malow on April 27, 2017, in an attempt to confirm the matter was being

       handled. (Id. at 95.) On April 28, 2017, Sedgwick received notice of the default

       judgment and reassigned the case to Mallory Hildreth, who immediately

       contacted Zalas to request additional time to respond. Hildreth left a message

       with Zalas’ receptionist but did not receive a response. On May 3, 2017,

       Hildreth again called Zalas but did not receive a response.


[13]   On May 1, 2017, Hildreth confirmed Safway was covered by CCIP and

       contacted the insurance carrier to obtain authority to hire defense counsel. On

       May 26, 2017, via counsel hired by CCIP, Safway filed a motion to set aside the

       default judgment. On July 17, 2017, the trial court entered an order permitting


       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019         Page 5 of 19
       Fields to conduct discovery “to test the credibility of [Safway’s] claim of

       excusable neglect and also to test the viability of its assertion that it has a

       meritorious defense[.]” (Id. at 55.)


[14]   On January 16, 2018, after discovery was conducted, the trial court held a

       hearing and granted Safway’s motion. After having found Safway had

       presented prima facie evidence of meritorious defenses, the trial court found

       Safway’s actions did not constitute “excusable neglect” such that it could be

       given relief under Trial Rule 60(B)(1) because Safway had “simply dropped the

       ball.” (Appealed Order at 3.) The court found Safway’s behavior “certainly

       constitute[s] neglect[,]” (id. at 4), but the court refused to call that negligence

       excusable “for purposes of Trial Rule 60(B)(1).” (Id.)


[15]   The trial court then addressed Safway’s Trial Rule 60(B)(8) argument that the

       circumstances constituted “any reason justifying relief[.]” Specifically, the trial

       court used the factors delineated in Huntington National Bank v. Car-X Association

       Corporation, 39 N.E.3d 652 (Ind. 2015), to determine whether Safway could be

       granted relief under that portion of the rule. It determined that “most, if not all

       of such factors weigh in favor of vacating the judgment.” (Appealed Order at

       4.) The trial court found that while not excusable neglect, “Safway’s actions in

       not timely responding are . . . plausible and understandable.” (Id.)


[16]   The trial court found Safway had taken prompt action once it “learned of the

       entry of default and the partial judgment.” (Id.) It also found the “amount of




       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019          Page 6 of 19
       money at issue is substantial, and Fields will not be procedurally prejudiced by

       vacating the entry of default and the partial judgment.” (Id. at 4-5.)


[17]   As to financial harm, the trial court stated it had considered Safway’s in-house

       counsel’s testimony that “Safway would not be financially harmed if the

       Motion is not granted.” (Id. at 5.) However, it concluded it could not consider

       insurance coverage in this matter and that “someone will be financially

       prejudiced if the entry of default and partial judgment are not vacated.” (Id.)

       Finally, the trial court found that our Indiana Supreme Court has indicated a

       preference for resolving cases on their merits. Such a preference, the trial court

       concluded, “tips the balance in favor of vacating the entry of default and partial

       judgment dated April 26, 2017.” (Id. at 6.)



                                   Discussion and Decision
[18]   Fields appeals the trial court’s grant of Safway’s motion to set aside default

       judgment pursuant to Trial Rule 60(B)(8). Fields alleges that the trial court

       abused its discretion when it granted Safway relief from default judgment

       without requiring Safway to present evidence of exceptional circumstances to

       justify that relief and that the trial court granted relief “based solely upon

       factually unsupported equitable considerations[.]” (Br. of Appellant at 8.)


                                           Standard of Review
[19]   A decision whether to set aside a default judgment is entitled to deference and is

       reviewed for abuse of discretion. Coslett v. Weddle Bros. Const. Co., Inc., 798


       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019         Page 7 of 19
       N.E.2d 859, 861 (Ind. 2003), reh’g denied. Any doubt about the propriety of a

       default judgment should be resolved in favor of the defaulted party. Id. Indiana

       law strongly prefers disposition of cases on their merits. Id. Our standard of

       review is limited to determining whether the trial court abused its discretion.

       Bennett v. Andry, 647 N.E.2d 28, 31 (Ind. Ct. App. 1995). An abuse of

       discretion may occur if the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court, or if the court has

       misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180

       (Ind. 1993).


[20]   Where the trial court has entered findings of fact and conclusions of law, our

       standard of review is two-tiered: we determine whether the evidence supports

       the trial court’s findings, and whether the findings support the judgment.

       Indianapolis Ind. Aamco Dealers Adver. Pool v. Anderson, 746 N.E.2d 383, 386 (Ind.

       Ct. App. 2001). We will not disturb the trial court’s findings or judgment unless

       they are clearly erroneous. Id. Findings of fact are clearly erroneous when the

       record lacks any reasonable inference from the evidence to support them. Culley

       v. McFadden Lake Corp., 674 N.E.2d 208, 211 (Ind. Ct. App. 1996). A judgment

       is clearly erroneous when a review of the record leaves us with a firm

       conviction that a mistake has been made. Carroll v. J.J.B. Hilliard, W.L. Lyons,

       Inc., 738 N.E.2d 1069, 1075 (Ind. Ct. App. 2000), trans. denied. We will neither

       reweigh evidence nor judge the credibility of witnesses, considering instead only

       the evidence favorable to the judgment and all reasonable inferences to be




       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019        Page 8 of 19
       drawn therefrom. Donavan v. Ivy Knoll Apts. P’ship, 537 N.E.2d 47, 50 (Ind. Ct.

       App. 1989).


                                     Exceptional Circumstances
[21]   Fields seems to be operating on the notion that Safway was required to present

       evidence of timely filing, a meritorious defense, exceptional circumstances, and

       equitable considerations. Further, Fields argues the trial court comingled the

       “exceptional circumstances” and the “equitable considerations” and therefore,

       misapplied the law. We disagree, because the equitable considerations can

       constitute the exceptional circumstances presented to the trial court.


[22]   Indiana Trial Rule 60(B)(8) allows a trial court to grant relief from judgment 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).” The motion for

       relief must be filed within a reasonable time and the movant must present a

       meritorious defense. Ind. Trial Rule 60(B).


[23]   In Brimhall v. Brewster, 684 N.E.2d 1148 (Ind. Ct. App. 2007), trans. denied, we

       held a trial court may grant this relief “upon a showing of exceptional

       circumstances justifying extraordinary relief [so long as the] exceptional

       circumstances do not include mistake, surprise, or excusable neglect[.]” Id. at

       1153. Therefore, in Brimhall, we delineated the “any reasons” from Trial Rule

       60(B)(8) as “exceptional circumstances.”


[24]   In Huntington, our Indiana Supreme Court held that, provided the movant

       demonstrated a meritorious defense and filed the motion for relief in a timely
       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019       Page 9 of 19
       fashion, “the decision whether to grant or deny that party’s motion is left to the

       trial court’s equitable discretion and [is] highly fact specific.” Huntington Nat’l

       Bank, 39 N.E.3d at 659 (citing Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind.

       1994)). It further illustrated how the court could consider whether to grant that

       equitable relief by laying out five factors that were pertinent to that case, i.e., the

       bank’s interest in the real estate, the bank’s “excusable reason” for untimely

       responding, the bank’s quick action once the default judgment was discovered,

       the bank’s significant loss if the default judgment were not set aside, and the

       “minimal prejudice” to the plaintiff “should the case be reinstated.” Id. Thus,

       to determine whether exceptional circumstances existed, the trial court was

       ordered to consider those five factors.


[25]   Eight years later, in Dalton Corp. v. Myers, 65 N.E.3d 1142 (Ind. Ct. App. 2016),

       trans. denied, we explained in more detail that to prevail on a Trial Rule 60(B)(8)

       motion, “the movant must 1) allege sufficient grounds showing exceptional

       circumstances justifying relief from the operation of the judgment other than

       those set forth in Rule 60(B)(1)-(4), 2) allege a meritorious defense, and 3) file

       the motion within a reasonable time.” Id. at 1145. Further, we stated that “[i]n

       determining whether exceptional circumstances warrant setting aside a default

       judgment, the trial court may also consider the equitable considerations set

       forth by each party.” Id. Therefore, while the movant is required to show

       exceptional circumstances, the trial court is allowed to consider the equitable

       considerations presented by the parties in order to decide if exceptional

       circumstances have been proven.

       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019         Page 10 of 19
[26]   The rule and the caselaw do not require the movant to present evidence of

       exceptional circumstances independent of the equitable reasons for relief;

       rather, they require that the movant present proof of “exceptional circumstances

       justifying extraordinary relief[,]” Brimhall, 684 N.E.2d at 1153, and that the

       movant can demonstrate that by presenting sufficient evidence of equitable

       considerations, such as the five factors listed in Huntington, 39 N.E.3d at 659.

       See Dalton, 65 N.E.3d at 1145 (trial courts can find required exceptional

       circumstances by considering equitable considerations presented by the parties).

       Therefore, as the trial court made findings of equitable reasons and concluded

       those reasons, together with our Indiana Supreme Court’s preference to decide

       cases on their merits, “tip[ped] the balance in favor of vacating the entry of

       default and partial judgment[,]” (Appealed Order at 6), we cannot find the trial

       court abused its discretion. See Wamsley v. Tree City Village, 108 N.E.3d 334,

       336 (Ind. 2018) (if even slight evidence exists, “[o]ur deferential standard of

       review compels us to affirm the trial court”).


                                   Evidence of Equitable Factors
                               Safway’s Harm as a Result of the Judgment

[27]   Fields argues the trial court ignored evidence Safway would not be financially

       harmed by the default judgment. However, the trial court specifically noted it

       had considered that testimony but found it could not “consider such insurance

       in determining a motion under Trial Rule 60(B)(8) [because] someone will be

       financially prejudiced if the entry of default and partial judgment are not

       vacated.” (Id. at 5.) Therefore, the trial court did not ignore that evidence.

       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019      Page 11 of 19
       Fields’ arguments are an invitation for us to reweigh the evidence, which we

       cannot do. See Prime Mort. USA, Inc. v. Nichols, 885 N.E.2d 628, 656 (Ind. Ct.

       App. 2008) (appellate court may not reweigh evidence when trial court makes

       findings of fact).


                           Characterization of Safway’s Inexcusable Neglect

[28]   Fields argues the trial court misinterpreted the law and went against the logic

       and effect of the facts when it characterized Safway’s inexcusable neglect as

       “plausible and understandable[.]” (Appellant’s Br. at 19 (quoting Appealed

       Order at 4).)


[29]   The trial court found it “accept[ed] as true for purposes of the Motion to Set

       Aside the facts as alleged by Safway concerning Safway’s actions after receiving

       the Complaint and Summons.” 2 (Appealed Order at 3.) There was more to

       Safway’s actions than merely the fact that its employees had not followed the

       correct procedure. This complaint had to traverse through three entities:

       Safway, Barton Marlow and Sedgwick. We cannot disagree with the trial

       court’s reasonable inference that, while the actions of Safway employees are not




       2
         The allegations the trial court references here are found in Safway’s “Memorandum in Support of Motion
       to Set Aside Default Judgment,” (App. Vol. II at 28), and Safway’s “Supplemental Memorandum[.]” (Id. at
       58.) For the purposes of showing the sequence of events after Safway received the complaint, they include,
       amongst other things: “Affidavit of Jennifer Boland,” (id. at 45) (stating Safway received the complaint on
       March 31, 2017, and referred it to Barton Marlow to “be processed within the [] CCIP” on April 3, 2017);
       “Affidavit of Ronald Torbert[,]” (id. at 42) (Barton Marlow was notified of the complaint on April 3, 2017
       and referred the claim to Sedgwick on April 4, 2017); and “Affidavit of Jeff Marlowe,” (id. at 47-50) (stating
       he opened a claim for Safway on April 4, 2017, he assigned Corky Butler to the claim, Corky’s actions
       therein, and Mallory Hildreth’s subsequent assignment to the matter).

       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019                              Page 12 of 19
       excusable, the situation created here was exceptional and thus, “plausible and

       understandable.” (Id.); see Huntington, 39 N.E.3d at 658 (proper for trial court

       to consider “‘excusable reason’ for untimely responding” as an equitable reason

       for relief).


                                                      Prejudice

[30]   Fields contends the trial court abused its discretion by finding Fields was not

       prejudiced by the setting aside of the default judgment. Fields argues Safway

       “never broached the issue of procedural prejudice[.]” (Appellant’s Br. at 22)

       (emphasis in original). Fields acknowledges Safway briefly, at the hearing,

       mentioned the subject of prejudice and that, after discovery, the claim would be

       reinstated within a year and that fact showed a lack of prejudice to Fields. (See

       Tr. Vol. II at 21 (counsel for Safway states the short timeframe suggested a lack

       of prejudice to Fields but not reinstating the case would result in prejudice to

       Safway’s reputation).)


[31]   Safway filed its motion to set aside default judgment one month after the court

       granted the default judgment. Fields argues that while “mired in discovery

       involving Safway’s effort to set aside the default judgment, witnesses’

       recollections and physical evidence grew older, and [Fields’] ability to uncover

       the facts necessary to prove his allegations against Safway grew more remote.”

       (Br. of Appellant at 23.) Fields’ argument that he was “mired in discovery[,]”

       (id.), such that he is now prejudiced is without merit.




       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019       Page 13 of 19
[32]   On June 9, 2017, Fields filed the “Motion to Conduct Discovery Pursuant to

       Indiana Trail [sic] Rule 60(D).” (App. Vol. II at 53.) The trial court granted

       Fields’ motion. Fields’ discovery should have included investigation into

       Safway’s meritorious defense that would necessarily involve an investigation of

       the underlying claims. Any error created by the time taken for discovery was

       invited by Fields. See Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App.

       2002) (“party cannot invite error and then request relief on appeal based upon

       that ground”).


                          Safway’s Prompt Action and Absence of Bad Faith

[33]   Fields argues the trial court improperly considered Safway’s prompt action and

       lack of bad faith. While acknowledging “it is not clear what weight the trial

       court afforded these equitable considerations[,]” (Appellant’s Br. at 24), Fields

       argues they should have been given no weight because both considerations fall

       under Trial Rule 60(B)(1) and not Trial Rule 60(B)(8).


[34]   The trial court accepted Safway’s alleged facts regarding Safway’s actions after

       receiving the complaint. Therefore, we know that within five days of receipt of

       the complaint, Safway had reviewed it and sent it to the general contractor for

       insurance coverage and the general contractor had sent it on to Sedgwick to

       handle. While the trial court concluded Safway’s actions constituted neglect

       that was inexcusable, it also found those actions were “plausible and

       understandable [and t]here was no intentional ignoring of the lawsuit[.]”

       (Appealed Order at 4.) Based on that finding, the trial court concluded Safway

       had not acted in bad faith.
       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019     Page 14 of 19
[35]   Fields argues Safway did not respond with appropriate promptness. Fields

       contends “promptness is determined by reasonableness, and is closely tied with

       the size and sophistication of the moving party.” (Appellant’s Br. at 24.)

       However, the Court’s analysis in Huntington regarding promptness is located in

       the analysis pertaining to Trial Rule 60(B)(1). That analysis provides that to

       justify an untimely response, the movant can show a breakdown of

       communication between agents of the party, i.e., the insurer and the insured,

       but not merely inattentiveness of the party itself. However, once the Court

       moves to Trial Rule 60(B)(8), it again lists “quick action” as a factor to be

       weighed when considereding equitable reasons. Huntington, 39 N.E.3d at 658.

       This has nothing to do with a party’s neglect that resulted in the default

       judgment; rather, it has to do with the speed of action once the default

       judgment was entered.


[36]   The trial court found: Fields was injured on February 10, 2017; Fields filed a

       complaint on March 28, 2017; Fields filed a Motion for Default Judgment on

       April 25, 2017; the trial court granted Fields’ motion the following day; and

       Safway filed a Motion to Set Aside Default Judgment on May 26, 2017. The

       trial court found Safway had taken “prompt action to address the situation.”

       (Appealed Order at 4.) Fields’ invitation to consider one month as not prompt

       enough is an impermissible request to reweigh the evidence, which we cannot

       do. See Prime Mort. USA, Inc., 885 N.E.2d at 656 (appellate court may not

       reweigh evidence when trial court makes findings of fact).




       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019        Page 15 of 19
                                                 Conclusion
[37]   As we determine the trial court did not abuse its discretion when it granted

       Safway’s Motion for Relief from Judgment under Indiana Trial Rule 60(B)(8),

       we affirm the trial court’s order to vacate the partial default judgment herein.


[38]   Affirmed.


       Riley, J., concurs.


       Mathias, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019      Page 16 of 19
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Clint Fields,                                              Court of Appeals Case No.
                                                                 18A-CT-247
      Appellant-Plaintiff,

              v.

      Safway Group Holdings, LLC,
      Appellee-Defendant.




      Mathias, Judge, dissenting.


[1]   I agree with the trial court that Safway did not establish mistake, surprise, or

      excusable neglect sufficient to justify relief, under Trial Rule 60(B)(1), from the

      default judgment entered in favor of Fields. I part ways with the trial court, and

      the majority, however, to the extent that they conclude that Safway was entitled

      to relief under Rule 60(B)(8).


[2]   The majority agrees with the trial court that Safway’s actions constituted

      inexcusable neglect, but that equitable considerations justify relief from

      judgment. But it has long been held that Rule 60(B) permits relief “in

      extraordinary circumstances which are not the result of any fault or negligence

      on the part of the movant.” Kretschmer v. Bank of Am., N.A., 15 N.E.3d 595, 600
      Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019                    Page 17 of 19
      (Ind. Ct. App. 2014) (citing Wagler v. West Boggs Sewer Dist., 980 N.E.2d 363,

      371–72 (Ind. Ct. App. 2012), trans. denied), trans. denied; see also Goldsmith v.

      Jones, 761 N.E.2d 471, 474 (Ind. Ct. App. 2002) (citing Whitaker v. St. Joseph’s

      Hosp., 415 N.E.2d 737, 744 n.6 (Ind. Ct. App. 1981)). Also, a party seeking

      relief from the judgment under Rule 60(B)(8) must show that its failure to act

      was not merely due to an omission involving the mistake, surprise or excusable

      neglect; instead, some extraordinary circumstances must be demonstrated

      affirmatively, and these circumstances must be other than those circumstances

      enumerated in the preceding subsections of Rule 60(B). Indiana Ins. Co. v. Ins.

      Co. of N. Am., 734 N.E.2d 276, 279–80 (Ind. Ct. App. 2000) (quoting Blichert v.

      Brososky, 436 N.E.2d 1165, 1167 (Ind. Ct. App. 1982)), trans. denied.


[3]   Here, the trial court found that Safway’s failure to respond to the complaint was

      negligent. It further found that Safway’s negligence was not excusable for

      purposes of relief under Rule 60(B)(1). But this does not mean that an

      inexcusably negligent movant such as Safeway may then gain relief under Rule

      60(B)(8). To the contrary, it means that they may not be afforded relief at all.

      Indeed, if a party’s neglect does not constitute excusable neglect under Rule

      60(B)(1), it would make no sense to nevertheless afford that party relief under

      Rule 60(B)(8). Otherwise, a party could do an end run around Rule 60(B)(1),

      opening up the possibility of a parade of cases bypassing the intent of the rule to

      permit relief only for excusable neglect.


[4]   Under circumstances where the moving party was negligent, Rule 60(B)(1)

      should be the exclusive remedy. If that party’s negligence was inexcusable, they

      Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019         Page 18 of 19
should not be afforded relief under Rule 60(B)(8). Because the majority

concludes otherwise, I respectfully dissent.




Court of Appeals of Indiana | Opinion 18A-CT-247 | January 24, 2019   Page 19 of 19
