      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                           Jul 21 2015, 6:31 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      J. Thomas Vetne                                         Peter L. Boyles
      Brian R. Gates                                          Rhame & Elwood
      Jones Obenchain, LLP                                    Portage, Indiana
      South Bend, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

      Westville Lounge, Ltd., d/b/a                           July 21, 2015
      Crossroads, and Michael Ganz                            Court of Appeals Case No.
      d/b/a Crossroads Lounge,                                46A05-1412-CT-606
                                                              Appeal from the LaPorte Superior
      Appellants-Defendants,                                  Court
      v.                                                      The Honorable Jennifer L. Koethe,
                                                              Judge

      Walter Wesley,                                          Trial Court Case No.
                                                              46D03-1009-CT-535
      Appellee-Plaintiff.



      Mathias, Judge.

[1]   Westville Lounge, Ltd., d/b/a/ Crossroads, and Michael Ganz d/b/a

      Crossroads Lounge (collectively “Ganz”) appeal from the LaPorte Superior

      Court’s denial of Ganz’s motion for relief from judgment under Indiana Trial




      Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015          Page 1 of 14
      Rule 60(B). On appeal, Ganz claims that the trial court abused its discretion in

      denying its motion for relief from judgment.

[2]   We affirm.


                                     Facts and Procedural History

[3]   On the evening of January 22, 2010, Walter Wesley (“Wesley”) was at

      Crossroads Lounge, a bar owned by Ganz in Westville, Indiana, participating

      in a dart tournament. At some point in the evening, Wesley slipped and fell,

      fracturing his ankle. As set forth below, stories conflicted on how Wesley fell.

      Wesley eventually had surgery on his ankle to repair a broken bone and a torn

      ligament.

[4]   On September 3, 2010, Wesley filed a complaint alleging negligence on the part

      of Ganz and demanded a jury trial. Ganz filed a response pro se and appeared

      pro se at a status conference held on July 20, 2011. The trial court informed

      Ganz that Crossroads was required to be represented by an attorney and gave

      the parties notice that the firm representing Wesley also represented the trial

      court judge’s husband in a pending child custody dispute. The court set the

      matter for a status hearing.

[5]   At the status hearing, Ganz failed to appear, and the cause was set for a jury

      trial. Ganz subsequently informed the trial court that he intended to file for

      bankruptcy protection and requested a continuance. The trial date was then

      continued to October 22, 2012. On August 28, 2012, an attorney filed an

      appearance on behalf of Ganz, and the trial was again continued on Ganz’s


      Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 2 of 14
      motion. After one further continuance requested by Ganz, the trial was

      eventually scheduled for December 13, 2013, but due to a conflict in the trial

      court’s schedule, the date was pushed back to January 14, 2014.


[6]   On November 26, 2013, almost two months prior to the scheduled trial, Ganz’s

      attorney informed the trial court and Wesley that he had been unable to make

      contact with Ganz. Accordingly, on December 2, 2013, Ganz’s attorney filed a

      motion to withdraw his appearance, which the trial court granted on December

      9, 2013.

[7]   On December 11, 2013, Ganz filed a pro se motion to dismiss. The trial court

      scheduled a hearing on the motion for December 19, 2013. Despite having filed

      the motion to dismiss, Ganz failed to appear at the hearing set thereon. The

      trial court asked Wesley if he wished to proceed with a bench trial instead of a

      jury trial. Thereafter, on December 23, 2013, Wesley filed a motion to

      withdraw his request for a jury trial and instead proceed with a bench trial.

      Ganz filed no objection to this request; instead, Ganz filed a pro se motion to

      continue, which the trial court denied. Ganz renewed his pro se motion to

      continue on January 2, 2014, and filed a response to Wesley’s granted motion

      to withdraw his request for a jury trial. The trial court again denied Ganz’s

      request for a continuance but granted Wesley’s request for a bench trial.

[8]   A bench trial was held on January 14 – 15, 2014. At trial, Ganz proceeded pro

      se. Likely the only undisputed evidence was that after he fell, Wesley spoke with

      the bartender, Barbra Kaufman (“Kaufman”), who gave Wesley a bag of ice for




      Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 3 of 14
      his ankle. The testimony as to the proximate cause of Wesley’s injury was

      conflicting. Wesley testified that he told Kaufman that he had tripped on a nail

      sticking out of the floor and that Kaufman told Wesley that she had seen a nail

      sticking out of the floor earlier that day and had hammered it back down.

      Kaufman testified that although she had seen a protruding nail that day, she

      hammered it back into place, and no one showed her a nail or mentioned a nail

      to her the night that Wesley fell. Ganz’s witness Freddy Ames, Jr., (“Ames”)

      testified that he saw Wesley attempt to kick one of his friends and that this

      friend in turn kicked Wesley’s foot, causing him to spin and fall down. At the

      conclusion of the trial, the court took the matter under advisement. On March

      5, 2014, the trial court entered judgment in favor of Wesley in the amount of

      $110,069.31.

[9]   On April 9, 2014, Ganz contacted the trial court pro se and claimed that he had

      not been served with the final judgment until the day before, by which time his

      time to initiate an appeal had expired. See Ind. Appellate Rule 9(A)(1). On

      April 17, 2014, an attorney filed an appearance on behalf of Ganz and filed a

      motion for extension of time within which to file an appeal. See Ind. Trial Rule

      72(E) (“When service of a copy of the entry by the Clerk is not evidenced by a

      note made by the Clerk upon the Chronological Case Summary, the Court,

      upon application for good cause shown, may grant an extension of any time

      limitation within which to contest such ruling, order or judgment to any party

      who was without actual knowledge[.]”). Following a hearing, the trial court

      denied this motion on May 14, 2014.



      Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 4 of 14
[10]   At a scheduled proceeding supplemental hearing held on May 15, 2014, Ganz’s

       attorney failed to appear. Instead, over a month later, on June 18, 2014, Ganz

       filed a motion to stay the proceedings supplemental in anticipation of also filing

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

       granted the motion to stay that same day.


[11]   Ganz did not immediately file a motion under Trial Rule 60(B). Accordingly,

       on October 20, 2014, Wesley filed a motion to lift the stay of the proceedings

       supplemental, which the trial court granted. Only after this did Ganz finally file,

       on November 13, 2014, a Trial Rule 60(B) motion for relief from judgment. The

       trial court denied Ganz’s motion for relief from judgment on December 11,

       2014, in an order that stated in relevant part:

               This matter came to the Court on Defendant’s Trial Rule 60(B)
               Motion filed with the Court on November 13, 2014 and
               Plaintiff’s Response filed with the Court on December 5, 2014.
               The Court having reviewed the Motion and Response filed now
               finds as follows:
               1.     The Court may not consider matters in a Trial Rule 60(B)
               Motion that should have been the subject of a timely motion to
               correct errors or appeal.
               2.    The Court previously DENIED Defendant’s request for an
               extension to file an appeal in this matter in its Order dated May
               14, 2014.
               3.     The issues raised by Defendant should have been raised in
               a timely motion to correct errors or appeal.
               WHEREFORE, IT IS ORDERED, ADJUDGED, AND
               DECREED that Defendant’s Trial Rule 60(B) Motion IS
               DENIED.

       Appellant’s App. p. 11 (citations omitted). Ganz now appeals.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 5 of 14
                                            Standard of Review

[12]   Ganz claims on appeal that the trial court erred in denying its motion for relief

       from judgment. Trial Rule 60(B) provides in relevant part:

               (B) Mistake—Excusable neglect—Newly discovered
               evidence—Fraud, etc. On motion and upon such terms as are
               just the court may relieve a party or his legal representative from
               a judgment, including a judgment by default, for the following
               reasons:
               (1) mistake, surprise, or excusable neglect;
               (2) any ground for a motion to correct error, including without
               limitation newly discovered evidence, which by due diligence
               could not have been discovered in time to move for a motion to
               correct errors under Rule 59;
               (3) fraud (whether heretofore denominated intrinsic or extrinsic),
               misrepresentation, or other misconduct of an adverse party;
               (4) entry of default or judgment by default was entered against
               such party who was served only by publication and who was
               without actual knowledge of the action and judgment, order or
               proceedings;
               (5) except in the case of a divorce decree, the record fails to
               show that such party was represented by a guardian or other
               representative, and if the motion asserts and such party proves
               that
                    (a) at the time of the action he was an infant or incompetent
                    person, and
                    (b) he was not in fact represented by a guardian or other
                    representative, and
                    (c) the person against whom the judgment, order or
                    proceeding is being avoided procured the judgment with
                    notice of such infancy or incompetency, and, as against a
                    successor of such person, that such successor acquired his



       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 6 of 14
                    rights therein with notice that the judgment was procured
                    against an infant or incompetent, and
                    (d) no appeal or other remedies allowed under this
                    subdivision have been taken or made by or on behalf of the
                    infant or incompetent person, and
                    (e) the motion was made within ninety [90] days after the
                    disability was removed or a guardian was appointed over his
                    estate, and
                    (f) the motion alleges a valid defense or claim;
               (6) the judgment is void;
               (7) the judgment has been satisfied, released, or discharged, or a
               prior judgment upon which it is based has been reversed or
               otherwise vacated, or it is no longer equitable that the judgment
               should have prospective application; or
               (8) any reason justifying relief from the operation of the
               judgment, other than those reasons set forth in sub-paragraphs
               (1), (2), (3), and (4).

[13]   A motion made under Trial Rule 60(B) is addressed to the equitable discretion

       of the trial court. In re Paternity of P.S.S., 934 N.E.2d 737, 740-41 (Ind. 2010).

       Accordingly, the grant or denial of the Trial Rule 60(B) motion will be

       disturbed on appeal only when the trial court has abused that discretion. Id. at

       740-41. An abuse of discretion will be found only when the trial court’s action is

       clearly erroneous, i.e., against the logic and effect of the facts before it and the

       reasonable inferences that may be drawn therefrom. Id. at 741.


[14]   Ganz bases his argument on Trial Rule 60(B)(8), which allows the trial court to

       set aside a judgment within a reasonable time for any reason justifying relief

       other than those set forth in sub-paragraphs (1) through (4). Baker & Daniels,

       LLP v. Coachmen Indus., Inc., 924 N.E.2d 130, 140 (Ind. Ct. App. 2010), trans.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 7 of 14
       denied. The trial court’s residual powers under subsection (8) may only be

       invoked upon a showing of “exceptional circumstances justifying extraordinary

       relief.” Id. Exceptional circumstances do not include mistake, surprise, or

       excusable neglect, which are set out in Rule 60(B)(1). Id.


[15]   We further note that the burden is on the moving party to establish ground for

       Trial Rule 60(B) relief. Paternity of P.S.S., 934 N.E.2d at 740. Thus, if the trial

       court denies a Trial Rule 60(B) motion, the moving party appeals from a

       negative judgment. See Nodine v. McNerney, 833 N.E.2d 57, 65 (Ind. Ct. App.

       2005) (noting that judgment entered against party bearing burden of proof is a

       negative judgment), clarified on reh’g, 835 N.E.2d 1041, trans. denied. On appeal

       from a negative judgment, we will reverse the trial court upon this issue only if

       the evidence is without conflict and all reasonable inferences to be drawn from

       the evidence lead to a conclusion other than that reached by the trial court. Id.


                                         Discussion and Decision

[16]   Ganz claims that the trial court erred in denying his motion for relief from

       judgment for several reasons. He first claims that the trial court misinterpreted

       the law governing Trial Rule 60(B) motions. Specifically, Ganz argues that the

       trial court improperly denied the motion because he had not filed an appeal

       from the final judgment. Ganz contends that a party may file a Trial Rule 60(B)

       motion even if that party has not filed an appeal.

[17]   To be sure, no prerequisite exists that a party file an appeal before he or she

       may file a motion for relief from judgment. However, to the extent that the



       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 8 of 14
       motion for relief from judgment attacks the legal merits of the judgment, it is

       improper. As our supreme court explained in Paternity of P.S.S., “a motion for

       relief from judgment under Indiana Trial Rule 60(B) is not a substitute for a

       direct appeal.” 934 N.E.2d at 740 (citing Gertz v. Estes, 922 N.E.2d 135, 138

       (Ind. Ct. App. 2010)).


[18]   Instead, “Trial Rule 60(B) motions address only the procedural, equitable

       grounds justifying relief from the legal finality of a final judgment, not the legal

       merits of the judgment.” Id. (citing Mid-West Fed. Sav. Bank v. Epperson, 579

       N.E.2d 124, 129 (Ind. Ct. App. 1991)); see also Town of St. John v. Home Builders

       Ass'n of N. Ind., Inc., 428 N.E.2d 1299, 1302 (Ind. Ct. App. 1981) (noting that

       relief under Trial Rule 60(B) is proper after the failure to perfect an appeal only

       if there are some additional facts justifying extraordinary relief). Thus, “[i]f any

       matter is known or discoverable by a party within the period when a timely

       appeal may be perfected, [case law] would suggest that this matter may not be

       the subject of a motion for relief from judgment under Rule 60 when a party

       fails to timely perfect the appeal.” William F. Harvey, Stephen E. Arthur, 4

       Indiana Practice, Rules Of Procedure Annotated, § 60.3 (3d ed.).


[19]   Here, it is apparent from the language of the trial court’s order denying Ganz’s

       motion for relief from judgment that the trial court did not conclude that Ganz

       could not obtain relief under Trial Rule 60(B) motion simply because he had

       failed to file a notice of appeal. Instead, the court noted that the types of

       arguments presented in Ganz’s motion were not the type appropriate to a




       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 9 of 14
       motion for relief from judgment. Thus, the trial did not misinterpret the law

       governing Trial Rule 60(B).

[20]   Ganz also claims that the trial court erred in denying his motion for relief from

       judgment because since he did not receive notice of the judgment in time to

       appeal, he was deprived of his right to a jury trial, and the trial court judge

       should have recused herself sua sponte.


[21]   Ganz contends that he did not receive notice of the court’s final judgment in

       favor of Wesley until after the time in which he could file a notice of appeal. It

       is true that Ganz sent the trial court a letter stating that he had not received

       notice of the trial court’s judgment until after the time period for filing an

       appeal had expired. Ganz later repeated this claim in a motion for an extension

       of time in which to file its notice of appeal. Importantly, however, the trial court

       denied this motion. In so doing, the trial court acknowledged that nothing in

       the CCS indicated that notice had been mailed to the parties and that Ganz

       testified that the address on record for his personal address was incorrect.

       However, upon consideration of the context of the case, the trial court still

       rejected Ganz’s claims that he had not received notice of the final judgment in

       time to file a timely appeal:


               13. [T]here is no entry in the chronological case summary
               regarding the service of the judgment on the parties.
               14. In this case, the Court finds that Mr. Ganz failed to show
               good cause as to allow for an extension to file a notice of appeal
               in this matter.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 10 of 14
        15. Specifically, the Court finds the testimony presented by Mr.
        Ganz to be in direct contradiction with his filing dated April 9,
        2014. In Ganz’s testimony, he states that he seemed to miss all
        the Court (not sure if referring to filings or Court dates) except the
        beginning and the end, yet in his filing dated April 9, 2014, he
        states, “All other correspondence regarding this case came to me
        – but not the final Judgment.”
        16. There is no evidence in the record to show that Mr. Ganz
        missed any other filings or dates due to lack of service.
        17. Further, there is no evidence in the record to show that
        anyone ever contacted the Court or returned mail to the Court
        regarding this matter, with the exception of a notation by the
        Sheriff’s Department indicating lack of service on the Motion for
        Proceeding Supplemental.
        18. Even if the personal address for Mr. Ganz was incorrect,
        Mr. Ganz could have used the online Odyssey Case
        Management Service or could have on his own contacted the
        Clerk of the Court regarding the status of the judgment. There is
        no evidence that Mr. Ganz used due diligence to determine the
        status of the case.
        19. Finally and most importantly, there is no evidence to
        suggest that a copy of the judgment was not received by Ganz at
        his business, Crossroads Bar at 4817 US Hwy 421, Westville, IN.
        In fact, prior documents were sent to Ganz personally at 4817
        Us. Hwy 421, Westville . . . and were responded to by Ganz.
        WHEREFORE, IT IS ORDERED, ADJUDGED AND
        DECREED that the Defendant’s Motion for an Extension of
        Time to File an Appeal is DENIED. . . .

Appellant’s App. pp. 36-38 (citations omitted). Thus, Ganz’s claims to have not

received notice of the final judgment were fully considered by the trial court and

rejected, and nothing in the record indicates that Ganz ever attempted to

challenge this order of the trial court.



Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 11 of 14
[22]   Further, as noted by the court, Ganz could have kept abreast of the status of his

       case by contacting the trial court clerk or by checking the online case

       management system. See City of Indianapolis v. Hicks, 932 N.E.2d 227, 231 (Ind.

       Ct. App. 2010) (noting that attorneys have a general duty to regularly check

       court records and monitor the progress of pending cases); Goossens v. Goossens,

       829 N.E.2d 36, 43 (Ind. Ct. App. 2005) (noting that pro se litigants are held to

       the same standard as are licensed attorneys). Indeed, Ganz, having represented

       himself at a two-day trial, knew that the trial court’s judgment was pending and

       should have actively been checking on the status of the case.

[23]   Accordingly, Ganz has not convinced us that the trial court erred in denying his

       claim that he had no notice of the judgment. Ganz’s argument that the trial

       court should have granted his Trial Rule 60(B) motion because he did not have

       time to file an appeal is therefore not compelling.

[24]   Ganz’s citation to Graham v. Schreifer, 467 N.E.2d 800 (Ind. Ct. App. 1984), is

       unavailing. In that case, the attorney representing the defendants withdrew his

       appearance the week before the scheduled trial, and one of the defendants,

       Schreifer, was never informed about this withdrawal. In fact, Schreifer believed

       that he was still represented and was never informed of the withdrawal, the trial

       date, or any of the subsequent proceedings. Eventually, the plaintiff, Graham,

       obtained a default judgment but did not seek to enforce the judgment until

       almost ten years had passed, when Graham brought proceedings supplemental

       against Schreifer. The trial court granted Schreifer’s subsequent motion to set

       aside the judgment pursuant to Trial Rule 60(B), and Graham appealed.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 12 of 14
[25]   On appeal, this court affirmed the trial court’s ruling, noting that: Schreifer had

       no apparent control over the attorney representing him (who was retained by

       the co-defendant); the attorney never contacted Schreifer informing him of the

       trial date; Schreifer had no notice of the withdrawal, the reset trial date, or the

       entry of default judgment; and Graham had made no efforts to collect on the

       judgment in the preceding nine years and nine-months. Id. at 804. Under the

       facts and circumstances of that case, the court held that the trial court did not

       abuse its discretion in granting Schreifer’s motion to set aside the judgment. Id.

       at 807.

[26]   In contrast, here Ganz clearly knew that his trial counsel had withdrawn his

       appearance on November 26, 2013, and trial was not held until January 14 of

       the following year. Not only did Ganz know of the trial date, he appeared in

       person and represented himself at the trial. To the extent that Ganz claims that

       he was unaware of the trial court’s judgment, the trial court considered and

       rejected this claim, and Ganz has not persuaded us that we should set aside the

       trial court’s ruling on this matter. Moreover, in Graham, the trial court granted

       the defendant’s motion to set aside, and it was the plaintiff who was seeking to

       set aside the trial court’s ruling on appeal. In contrast, here, the trial court denied

       Ganz’s motion to set aside, and it is he who has the burden of demonstrating on

       appeal why the trial court abused its discretion. See In re K.H., 838 N.E.2d 477,

       480 (Ind. Ct. App. 2005) (noting that, on appeal, the burden of showing

       reversible error is on appellant).




       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 13 of 14
[27]   Ganz also claims that the trial court abused its discretion by denying his motion

       for relief from judgment because, he claims, he was denied his right to a jury

       trial, the trial court judge should have recused herself, and the trial court denied

       Ganz’s motion for a continuance after his attorney withdrew his appearance

       several weeks before the scheduled trial date.


[28]   However, these arguments all go to the legal merits of the judgment. Also,

       nothing in the record indicates that these issues were unknown at the time

       during which Ganz could have filed a motion to correct error and/or a notice of

       appeal. We have already rejected Ganz’s claim that he could not file a timely

       notice of appeal because he did not receive notice of the trial court’s judgment.

       Thus, Ganz is simply attempting to raise issues in a motion for relief from

       judgment which should have been raised in a direct appeal. As discussed above,

       this is improper. See Paternity of P.S.S., 934 N.E.2d at 741.


                                                    Conclusion

[29]   Under the facts and circumstances of the present case, we conclude that the trial

       court did not abuse its discretion when it denied Ganz’s Trial Rule 60(B)

       motion for relief from judgment.


[30]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1412-CT-606 | July 21, 2015   Page 14 of 14
