      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                     Jun 29 2015, 8:33 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.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Shawn T. Olsen                                           Jonathan P. Sturgill
      OlsenCampbell Ltd.                                       Blitt & Gaines, P.C.
      Merrillville, Indiana                                    Indianapolis, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kevin L. Martin,                                         June 29, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               64A04-1502-CC-64
              v.                                               Appeal from the Porter Superior
                                                               Court

      Discover Bank,                                           The Honorable William E. Alexa,
                                                               Judge
      Appellee-Plaintiff
                                                               Case No. 64D02-1308-CC-7290




      Crone, Judge.


                                             Case Summary
[1]   Kevin L. Martin appeals a trial court order granting Discover Bank’s (“the

      Bank”) motion for relief from judgment. He contends that the trial court erred

      in ruling on the Bank’s motion without first holding a hearing. Finding that


      Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015      Page 1 of 6
      Indiana Trial Rule 60(D) requires the trial court to hold a hearing before ruling

      on a motion for relief from judgment, we reverse and remand.



                             Facts and Procedural History
[2]   In August 2013, the Bank filed a complaint against Martin alleging an overdue

      credit card balance of $15,071.18. In his answer, Martin denied the allegations

      and claimed that the Bank was not the proper party-plaintiff under Indiana

      Trial Rule 17(A).1


[3]   On January 6, 2014, Martin served the Bank with discovery requests. These

      included requests for admissions, with responses due no later than February 10,

      2014. The Bank did not respond to any of the discovery requests, and on

      August 20, 2014, Martin sent a letter to the Bank’s counsel indicating that the

      requests for admission were effectively deemed admitted pursuant to Indiana

      Trial Rule 36(A)2 and that Martin intended to move forward with motions to

      dispose of the action. The Bank did not respond to Martin’s letter.


[4]   On September 11, 2014, Martin filed a motion for summary judgment with

      designated evidence and affidavits. The Bank did not file a memorandum or




      1
        Indiana Trial Rule 17(A) states in part, “Every action shall be prosecuted in the name of the real party in
      interest.”
      2
        Indiana Trial Rule 36(A) governs requests for admissions and responses/objections to them. The rule
      states that each requested matter must be separately set forth and that the “matter is admitted unless, within a
      period designated in the request, not less than thirty (30) days after service thereof … the party to whom the
      request is directed serves upon the party requesting the admission a written answer or objection ….” Id.

      Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015                   Page 2 of 6
      designate any materials in opposition. On October 29, 2014, Martin requested

      a ruling on his motion, and the trial court granted summary judgment in his

      favor the following day. The Bank did not file an appeal.


[5]   On January 16, 2015, the Bank filed a motion for relief from judgment under

      Indiana Trial Rule 60(B),3 admitting that it had not responded to discovery

      requests and claiming a meritorious defense and excusable neglect based on a

      miscommunication between its counsel’s Indianapolis and Chicago offices.

      The Bank also sought to reopen discovery. That same day, without a hearing,

      the trial court granted the Bank’s motion, thereby vacating its October 2014

      summary judgment order and reopening discovery. Martin now appeals.

      Additional facts will be provided as necessary.


                                    Discussion and Decision
[6]   Martin maintains that the trial court erred in summarily granting the Bank’s

      motion for relief from the October 2014 summary judgment order and

      reopening discovery. Indiana Trial Rule 60(B) provides a mechanism for

      obtaining relief from judgment under certain limited circumstances, and the

      burden is on the movant to establish grounds for such relief. Indiana Ins. Co. v.




      3
        Although the Bank’s motion was titled a “motion to set aside default judgment,” the surrounding facts
      indicate that it was in substance a Trial Rule 60(B) motion for relief from summary judgment. See Ind. Trial
      Rule 55(C) (“A judgment by default which has been entered may be set aside by the court for the grounds
      and in accordance with the provisions of Rule 60(B).”).

      Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015                 Page 3 of 6
      Ins. Co. of N. Am., 734 N.E.2d 276, 279 (Ind. Ct. App. 2000), trans. denied

      (2001). Trial Rule 60(B) states in pertinent 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;
                      …. 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).
              …. A movant filing a motion for reasons (1), (2), (3), (4), and (8) must
              allege a meritorious claim or defense. A motion under this subdivision
              (B) does not affect the finality of a judgment or suspend its operation.


[7]   When reviewing a trial court’s ruling on a Trial Rule 60(B) motion, we apply an

      abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885

      N.E.2d 1265, 1270 (Ind. 2008). An abuse of discretion occurs where the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances before it or if the trial court has misinterpreted the law or

      disregarded evidence of factors listed in the controlling statute. Love v. Love, 10

      N.E.3d 1005, 1012 (Ind. Ct. App. 2014). Here, we are not reviewing the merits




      Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015   Page 4 of 6
      of the trial court’s ruling, that is, whether the Bank had a meritorious defense.4

      Instead, we are asked to review the trial court’s decision to rule on the Bank’s

      Trial Rule 60(B) motion without first conducting a hearing, and in so doing, we

      look to the plain language of the rule. Dreyer & Reinbold, Inc. v.

      AutoXchange.com, Inc., 771 N.E.2d 764, 767 (Ind. Ct. App. 2002), trans. denied.

      Trial Rule 60(D) states,

               (D) Hearing and relief granted. In passing upon a motion allowed by
               subdivision (B) of this rule the court shall hear any pertinent evidence,
               allow new parties to be served with summons, allow discovery, grant
               relief as provided under Rule 59 or otherwise as permitted by
               subdivision (B) of this rule.


      (Emphasis added.)


[8]   Subdivision (D) is unambiguous in its language requiring the trial court to hold

      a hearing before ruling on a motion for relief from judgment. Our supreme

      court has interpreted its language as mandatory, not discretionary, holding that

      when a party files a Rule 60(B) motion, “notice to the opposing party and a

      hearing thereon is required before an order may be issued.” State ex rel. Aafco

      Heating & Air Conditioning Co. v. Lake Superior Court, 263 Ind. 233, 235, 328

      N.E.2d 733, 734 (1975).




      4
         Martin also challenges the sufficiency of the evidence to support an order for relief from judgment under
      Indiana Trial Rule 60(B). Because we hold that the trial rule mandates a hearing on the motion to examine
      its merits based on the evidence presented by both parties, we refrain from issuing an advisory opinion on the
      merits.

      Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015                  Page 5 of 6
[9]    Here, the chronological case summary (“CCS”) indicates that the Bank filed its

       Rule 60(B) motion on January 16, 2015, and that the trial court granted the

       Bank’s motion on the same date without a hearing.5 Appellant’s App. at 4. As

       such, neither the Bank nor Martin presented any evidence. In fact, due to the

       rapidity of the trial court’s ruling, Martin was not even afforded time to file a

       written response in opposition. Id.; see also id. at 51-53 (indicating that Martin

       submitted written motion in opposition filed January 22, 2015 and entered into

       CCS on January 29, 2015).


[10]   In short, Indiana Trial Rule 60(D) does not give the trial court discretion to

       dispense with a hearing before ruling on a Trial Rule 60(B) motion. Rather, the

       rule mandates such a hearing, and the trial court abused its discretion in not

       conducting one before ruling on the Bank’s motion. As such, we reverse its

       order vacating summary judgment and reopening discovery and remand for a

       hearing on the Bank’s proffered excuses for failing to respond to Martin’s

       discovery and motion for summary judgment and to afford Martin the

       opportunity to present evidence in opposition to the Bank’s allegations of

       excusable neglect as outlined in its Trial Rule 60(B) motion.


[11]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       5
        Neither the Bank’s January 16, 2015 motion nor the trial court’s same-day ruling on it was entered into the
       CCS until January 23, 2015. Appellant’s App. at 4.

       Court of Appeals of Indiana | Memorandum Decision 64A04-1502-CC-64| June 29, 2015                Page 6 of 6
