MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Apr 12 2016, 7:49 am

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


ATTORNEY FOR APPELLANT
Gregory B. Smith
Smith Law Office, P.C.
Muncie, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Smith Law Office, P.C.,                                   April 12, 2016
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A05-1510-PL-1837
        v.                                                Appeal from the Delaware Circuit
                                                          Court
Lawrence J. Cevelo and Carol L.                           The Honorable John M. Feick,
Cevelo,                                                   Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          18C04-1402-PL-8



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016          Page 1 of 9
                                Case Summary and Issues
[1]   Smith Law Office, P.C., (“Smith Law Office”) appeals the trial court’s order

      denying its Amended Motion to Set Side Agreed Entry. On appeal, Smith Law

      Office raises three issues for our review, which we consolidate and restate as (1)

      whether the trial court committed reversible error when it received two letters

      from an opposing party and did not provide Smith Law Office notice of, and an

      opportunity to contest, the two letters, and (2) whether the trial court erred in

      denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry.

      Concluding there is no evidence in the record demonstrating the trial judge’s

      impartiality was compromised as a result of the communications, and the trial

      court did not abuse its discretion in denying Smith Law Office’s Amended

      Motion to Set Aside Agreed Entry, we affirm.



                            Facts and Procedural History
[2]   In 2010, Lawrence and Carol Cevelo employed Smith Law Office to provide

      legal services regarding a real estate matter. After the case went to trial, the

      Cevelos stopped making payments on the total balance due for the legal services

      rendered. On February 14, 2014, Smith Law Office sued the Cevelos, alleging

      the Cevelos committed fraud and owed Smith Law Office “the sum of

      $12,977.10, plus interest at the statutory rate from December 31, 2013 . . . .”

      Appellant’s Appendix at 20. The Cevelos proceeded pro se. On April 28, 2014,

      the trial court entered its Order Granting Summary Judgment in favor of Smith

      Law Office and awarded Smith Law Office $13,507.74, together with interest

      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016   Page 2 of 9
      from December 31, 2013, at the statutory rate, and court costs of $151.00.

      Thereafter, Smith Law Office filed a Motion for Proceedings Supplemental, and

      the trial court scheduled a hearing.


[3]   In January 2015, the parties convened before a Master Commissioner to be

      heard on Smith Law Office’s Motion for Proceedings Supplemental. At the

      hearing, Lawrence explained Social Security was the Cevelos’ only source of

      income, and as a result, they had no means of paying Smith Law Office the full

      judgment, stating, “Our fixed expenses on a monthly basis far exceed our

      income, and we’ve been depending on my son and credit cards to keep a float

      [sic] up to this point.” Transcript at 25. Thereafter, the Master Commissioner

      asked Smith Law Office whether it would accept “$100.00 payments if [the

      Cevelos] were willing to make consistent $100.00 payments on a monthly

      basis” until the Cevelos’ income situation changed in a way that would allow

      them to pay the judgment off in full. Id. at 28. Smith Law Office responded

      affirmatively, stating, “[A]nything would work.” Id. at 28-29. The Cevelos also

      agreed. The Master Commissioner then explained it could “put an agreed entry

      in that [the Cevelos] would make $100.00 payments consistently on a monthly

      basis, and if, then that doesn’t work out, we can come back, or you can file, you

      know, a motion for writ of execution for the court’s consideration.” Id. at 30.

      Again, Smith Law Office stated it would agree to those terms if the payments

      started “immediately.” Id. On January 22, 2015, the trial court issued its

      Agreed Entry on Proceedings Supplemental, stating in relevant part, “The




      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016   Page 3 of 9
      [Cevelos] agree[] to pay $100 each month toward the judgment beginning in

      January 2015.” Appellant’s App. at 24.


[4]   In early June 2015, Smith Law Office filed a Motion to Set Aside Agreed Entry,

      which the trial court denied on June 3.1 On June 12, 2015, the trial court

      received a letter from the Cevelos. In the letter, the Cevelos argued the court

      should not set aside the Agreed Entry. On September 1, 2015, Smith Law

      Office filed an Amended Motion to Set Aside Agreed Entry, and the trial court

      scheduled a hearing on the matter for October 16, 2015. On September 17,

      2015, the trial court received correspondence from the Cevelos and the trial

      court sent a copy of the correspondence to Smith Law Office. At the hearing,

      Smith Law Office argued the Cevelos failed to make payments pursuant to the

      Agreed Entry. In addition, Smith Law Office claimed the Cevelos retained

      equity in their family home and by setting aside the Agreed Entry, the trial

      court would allow Smith Law Office to “proceed against [the Cevelos’] real

      estate.” Tr. at 42. On October 19, 2015, the trial court denied the motion.

      Two days later, the trial court received at least one letter from the Cevelos.

      Smith Law Office now appeals. Additional facts will be added as necessary.




      1
       The record does not contain the Motion to Set Aside the Agreed Entry, nor does it contain any description
      of Smith Law Office’s argument in support of the motion.

      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016           Page 4 of 9
                                  Discussion and Decision                               2




                                 I. Ex Parte Communications
[5]   Smith Law Office argues the two letters authored by the Cevelos and sent only

      to the trial court constituted improper ex parte communications that deprived

      Smith Law Office of a fair proceeding. “A communication is ex parte if made

      by a party outside the record without giving other parties notice or an

      opportunity to contest.” Stillwell v. Deer Park Mgmt., 873 N.E.2d 647, 652 (Ind.

      Ct. App. 2007) (emphasis and citation omitted), trans. denied. When there is an

      allegation of ex parte communications, “we assume that judges will disqualify

      themselves if there is any reasonable question concerning their impartiality.”

      Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1301 n.5 (Ind. Ct.

      App. 1997), trans. denied. Therefore, we will refuse to find error when there no

      “evidence or testimony demonstrating that the trial judge’s impartiality was

      compromised as a result of the communication . . . .” Id.


[6]   At the outset, we note the record does not include copies of the letters the

      Cevelos sent to the trial court, and most, if not all, of Smith Law Office’s claims

      and assertions are without citation to the record. The Chronological Case




      2
       We note the Cevelos did not file a brief in this case. When an appellee does not submit a brief, an appellant
      may prevail by making a prima facie case of error. Vill. of Coll. Corner v. Town of W. Coll. Corner, 766 N.E.2d
      742, 745 (Ind. Ct. App. 2002). We define prima facie in this context as “at first sight, on first appearance, or
      on the face of it.” Id. (citation omitted). “Such a rule protects this Court and relieves it from the burden of
      controverting arguments advanced for reversal, a duty that properly remains with the appellee.” Mitchell v.
      Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007).



      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016                Page 5 of 9
      Summary (“CCS”) indicates on June 12, 2015—three days after the trial court

      denied Smith Law Office’s Motion to Set Aside Agreed Entry— the trial court

      received a letter “from the [Cevelos] requesting that the Court not set aside the

      agreed entry.” Appellant’s App. at 8. On September 17, 2015, the CCS

      indicates the trial court received “correspondence” from the Cevelos, and a

      copy of the correspondence was sent to Smith Law Office. Id. at 9. On

      October 21, 2015—two days after the trial court denied Smith Law Office’s

      Amended Motion to Set Aside Agreed Entry—the CCS indicates,

      “Correspondence x 2 received from [the Cevelos] . . . . Letters placed in file;

      unread by presiding judge.” Id. at 10.


[7]   Based on the CCS, Smith Law Office neither received notice of, nor had an

      opportunity to contest, the June 12 and October 21 letters. However, we note

      the trial court received the June 12 letter, which argued the court should deny

      Smith Law Office’s Motion to Set Aside Agreed Entry, after the trial court had

      already denied that motion. In addition, the trial court received, but did not

      read, the October 21 letter after the trial court had already denied Smith Law

      Office’s Amended Motion to Set Aside Agreed Entry. Because both letters

      were received after the trial court denied the motions, we conclude there is no

      evidence in the record demonstrating the trial judge’s impartiality was

      compromised as a result of the communications. See Morton, 682 N.E.2d at

      1301 n.5.




      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016   Page 6 of 9
                                            II. Agreed Entry
                                        A. Standard of Review
[8]   We interpret Smith Law Office’s Amended Motion to Set Aside Agreed Entry

      as a motion for relief pursuant to Indiana Trial Rule 60(B)(8). We review a trial

      court’s ruling on Rule 60(B) motions for an abuse of discretion. Wagler v. West

      Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), trans. denied,

      cert. denied, 134 S.Ct. 952 (2014). “An abuse of discretion occurs if the trial

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

      circumstances or if the decision is contrary to law.” Garrett v. Spear, 24 N.E.3d

      472, 473-74 (Ind. Ct. App. 2014). “When reviewing a decision for an abuse of

      discretion, we consider only the evidence and reasonable inferences favorable to

      the judgment.” Lovold v. Ellis, 988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013). We

      neither reweigh the evidence nor judge the credibility of the witnesses. Ramsey

      v. Ramsey, 863 N.E.2d 1232, 1237 (Ind. Ct. App. 2007).


                   B. Amended Motion to Set Aside Agreed Entry
[9]   Smith Law Office contends the trial court abused its discretion in denying its

      Amended Motion to Set Aside Agreed Entry. Specifically, it argues the trial

      court should have set aside the Agreed Entry because the Cevelos violated the

      agreement in failing to make payments in January and July of 2015. 3 Indiana



      3
       In its brief, Smith Law Office also argues equity requires an Agreed Entry more favorable to its interests
      because affirming the trial court’s denial would allow the Cevelos “to reap benefits from their wrongdoing by
      avoiding the payment of all of the compensation owed to Smith Law Office, P.C.” Appellant’s Brief at 12.
      Specifically, Smith Law Office contends the Cevelos lied about their assets during the proceedings

      Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016             Page 7 of 9
       Trial Rule 60(B)(8) provides a trial court may relieve a party from a judgment

       for “any reason justifying relief from the operation of judgment . . . .” “The trial

       court’s residual powers under subsection (8) may only be invoked upon a

       showing of exceptional circumstances justifying extraordinary relief.” Wagler,

       980 N.E.2d at 372 (citation omitted).


[10]   Here, the Agreed Entry, dated January 22, 2015, provided the Cevelos would

       “pay $100 each month toward the judgment beginning in January 2015.”

       Appellant’s App. at 24. The record indicates the Cevelos made eight $100.00

       payments to the Clerk’s Office on February 2, March 2, April 2, May 1, June 5,

       June 29, August 3, and August 31. However, we are not persuaded these

       alleged “erratic” payments violate the Agreed Entry. Id. at 27. The Agreed

       Entry was dated January 22, 2015. This left the Cevelos, who indicated they

       were in dire financial straits, only six business days to make a payment in

       January. Although the Clerk’s Office did not record receiving a payment in

       January, the first payment was recorded on February 2, which was the seventh

       business day—and the first business day in February—following the issuance of

       the Agreed Entry. As to the July payment, the Cevelos claimed the second

       June payment was intended to cover the July payment. Tr. at 35.




       supplemental in order to attain a more favorable payment plan. We acknowledge the trial court, in entering
       judgment for Smith Law Office and awarding it damages, found the Cevelos fraudulently induced Smith
       Law Office to represent them in the underlying litigation by concealing their inability to pay. At the
       proceedings supplemental, however, both Lawrence and Carol testified to their inability to pay the full
       judgment given their finances. Therefore, we interpret Smith Law Office’s argument as a request for this
       court to reassess witness credibility, which we will not do. See Ramsey, 863 N.E.2d at 1237.

       Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016           Page 8 of 9
[11]   Ultimately, and pursuant to the Agreed Entry, the Cevelos were to pay $100.00

       per month, which by August 2015 would total $800 in payments; Smith Law

       Office concedes that by the end of August 2015, it received $800.00 from the

       Cevelos. Appellant’s App. at 27. We are not persuaded Smith Law Office has

       shown “exceptional circumstances justifying extraordinary relief.” Wagler, 980

       N.E.2d at 372 (citation omitted). Smith Law Office has suffered no harm, and

       we note it appears Smith Law Office is attempting to use the Cevelos’ alleged

       violations of the Agreed Entry as an excuse to set aside the Agreed Entry

       because it no longer finds the terms to which it agreed satisfactory. Based on

       the record before us, we conclude the trial court did not abuse its discretion in

       denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry.



                                               Conclusion
[12]   We conclude there is no evidence in the record demonstrating the trial judge’s

       impartiality was compromised as a result of the letters it received from the

       Cevelos. In addition, the trial court did not abuse its discretion in denying

       Smith Law Office’s Amended Motion to Set Aside Agreed Entry. Accordingly,

       we affirm.


[13]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016   Page 9 of 9
