Pursuant to Ind.Appellate Rule 65(D),
this 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:

VAN T. WILLIS                                     STEPHEN ROSS HUBBELL
CRYSTAL G. ROWE                                   Gary, Indiana
Kightlinger & Gray, LLP

                                                                              FILED
New Albany, Indiana

                                                                           Oct 18 2012, 9:07 am


                               IN THE                                               CLERK
                                                                                  of the supreme court,


                     COURT OF APPEALS OF INDIANA                                  court of appeals and
                                                                                         tax court




GOHMANN ASPHALT &                                 )
CONSTRUCTION, INC.,                               )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 10A04-1206-CC-324
                                                  )
FIVE STAR PAINTING, INC.,                         )
                                                  )
        Appellee-Plaintiff.                       )


                       APPEAL FROM THE CLARK CIRCUIT COURT
                            The Honorable Jerry F. Jacobi, Judge
                        The Honorable Kenneth R. Abbott, Magistrate
                              Cause No. 10C02-1103-CC-265


                                       October 18, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                          Case Summary

       Gohmann Asphalt & Construction, Inc., (“Gohmann”) appeals the trial court’s

order reinstating a complaint filed by Five Star Painting, Inc., (“Five Star”). We reverse.

                                                Issue

       Gohmann raises one issue, which we restate as whether the trial court properly

reinstated the case after it was dismissed.

                                                Facts

       On March 15, 2011, Five Star filed a complaint against Gohmann alleging breach

of contract and conversion.         On May 4, 2011, Gohmann answered the complaint,

disputing the allegations and raising several affirmative defenses. During a pretrial

conference, mediation was ordered, and a jury trial was scheduled for February 7, 2012.

In October 2011, the mediator filed a report indicating the parties had failed to settle the

matter. On January 5, 2012, Five Star’s attorney, Ross Hubbell, filed a motion to

withdraw his appearance. On January 9, 2012, the trial court cancelled the final pre-trial

conference and jury trial. On January 13, 2012, the trial court granted the motion to

withdraw and gave Five Star thirty days to retain substitute counsel.1 On February 22,

2012, Gohmann filed a motion to dismiss, alleging that Five Star had not timely retained

new counsel. On March 22, 2012, the trial court held a hearing on Gohmann’s motion to

dismiss. Five Star failed to appear at the hearing, and the trial court granted the motion to




1
   This order is dated January 9, 2012, but the chronological case summary indicates that the order was
issued on January 13, 2012.
                                                  2
dismiss.   The trial court’s order provided, “IT IS ORDERED, ADJUDGED AND

DECREED that the above-entitled cause be, and hereby is, dismissed.” App. p. 7.

      On April 3, 2012, Hubbell, on behalf of Five Star, filed a Motion for

Reinstatement of Case asserting that Five Star’s president, Steve Passaloukos, contacted

Hubbell on March 28, 2012, and advised Hubbell that he had been rendered incompetent

since December 2011 because he was suffering from serious, life-threatening illnesses

and from the side effects of the medication he was taking. The motion also indicated that

Passaloukos wished to prosecute the case and that Gohmann would not be prejudiced by

the reinstatement because discovery had already been completed.

      On April 4, 2012, the trial court informed Hubbell that no appearance had been

filed and that the pleading did not have the correct court name and case number. On

April 17, 2012, Gohmann filed its response in opposition to reinstatement. On May 1,

2012, Five Star refiled its motion supported by the affidavit of Passalokus’s wife, who

indicated her belief that Passalokus had been rendered incompetent after a change in his

medication. On May 30, 2012, the trial court granted the motion for reinstatement.

Gohmann now appeals.

                                        Analysis

      Gohmann argues that the trial court’s reinstatement of the case was improper. “A

trial court’s decision to reinstate a case pursuant to Trial Rule 41(F) is reviewed for an

abuse of discretion, which occurs only when the trial court’s decision is clearly against

the logic and effect of the facts and circumstances before it or if the court has

misinterpreted the law.” Baker & Daniels, LLP v. Coachmen Industries, Inc., 924 N.E.2d

                                            3
130, 136 (Ind. Ct. App. 2010), trans. denied. Trial Rule 41(F) provides, “For good cause

shown and within a reasonable time the court may set aside a dismissal without prejudice.

A dismissal with prejudice may be set aside by the court for the grounds and in

accordance with the provisions of Rule 60(B).”

        Although the trial court’s order dismissing the case did not specify whether the

dismissal was with or without prejudice, we have held “‘[a] dismissal for failure to

prosecute or to comply with our Trial Rules pursuant to Trial Rule 41(E) is a dismissal

with prejudice unless the trial court provides otherwise.’” Indiana Ins. Co. v. Insurance

Co. of North America, 734 N.E.2d 276, 278 (Ind. Ct. App. 2000) (quoting Browning v.

Walters, 620 N.E.2d 28, 32 (Ind. Ct. App. 1993)), trans. denied; see also Ind. Trial Rule

41(B) (providing in part, “Unless the court in its order for dismissal otherwise specifies, a

dismissal under this subdivision or subdivision (E) of this rule and any dismissal not

provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an

adjudication upon the merits.”). Because the dismissal was based on Five Star’s failure

to prosecute under Trial Rule 41(E) and the trial court’s order of dismissal does not

otherwise specify, it was a dismissal with prejudice that “may be set aside by the court

for the grounds and in accordance with the provisions of Rule 60(B).”2 T.R. 41(F).

        Five Star’s motion for reinstatement, however, appears to have been based on the

good cause prong of Trial Rule 41(F) and does not reference Trial Rule 60(B) in form or

in substance. Because Five Star was required to have the dismissal set aside based on

2
  On appeal, Five Star does not dispute that Trial Rule 60(B) applies. It only argues that it was patently
obvious that it has a meritorious claim, that it was unnecessary to establish that it had a meritorious claim
because the dismissal was void, and that Gohmann’s meritorious claim argument is waived on appeal.
                                                     4
Trial Rule 60(B), if at all, the trial court improperly reinstated Five Star’s complaint on

only a showing of good cause.

       Even if we were to broadly view Five Star’s motion for reinstatement as a motion

for relief from judgment based on Trial Rule 60(B), Five Star’s request for reinstatement

would still fail. Without specifying which subsection of Trial Rule 60(B) applies, Five

Star appears to assert that it was unnecessary to allege a meritorious claim, as required for

subsections (1), (2), (3), and (4) of Trial Rule 60(B), because it is “patently obvious from

the totality of the circumstances that Five Star has a meritorious claim and that Gohmann

and the trial court were well aware of this throughout the course of this litigation.”

Appellee’s Br. p. 5. In support of this assertion, Five Star refers to the fact that Gohmann

had not filed a motion to dismiss, motion for summary judgment, or any other motion

contesting the validity of Five Star’s claims and that its complaint set forth with

particularity the nature of its claims.

       We rejected a similar argument in Natare Corp. v. Cardinal Accounts, Inc., 874

N.E.2d 1055, 1059 (Ind. Ct. App. 2007), where the party seeking reinstatement presented

no admissible evidence establishing that it had a meritorious claim and the only

information in the record on the substance of the claim was the complaint. We reasoned,

“if all a party needed was a Complaint on file to satisfy the well-established requirement

that a prima facie case be demonstrated by some type of evidence, then that requirement

would be illusory and nothing more than a nullity because every Rule 60(B) case has a

Complaint in the court file.” Natare, 874 N.E.2d at 1059. Likewise we are unconvinced

that a detailed complaint, even taken with the fact that Gohmann had not challenged the

                                             5
validity of the claims in a pretrial motion, does not establish that Five Star had a

meritorious claim as required by Trial Rule 60(B).

       Alternatively, Five Star argues that it need not have established a meritorious

claim because the dismissal was void because of Passaloukos’s alleged incompetence at

the time he was served with the motion to dismiss. According to Passaloukos’s wife’s

affidavit, when Passaloukos began taking new medication to treat his pulmonary disease,

she noticed a “rapid deterioration” in his mental health to the point that she believed “he

was completely incompetent.” App. p. 63. Passaloukos’s wife further stated that notices

were being sent to Passaloukos’s office, not the couples’ home.

       As Five Star points out, the meritorious claim requirement is not absolute. “If a

judgment is void, whether from faulty process or otherwise, a T.R. 60(B) claimant need

not show a meritorious defense or claim.” Moore v. Terre Haute First Nat. Bank, 582

N.E.2d 474, 477 (Ind. Ct. App. 1991); see also T.R. 60(B). Passaloukos’s purported

incompetence and failure to go to his office, however, does not establish that the

dismissal is void as a matter of law. See, e.g., Baker & Daniels, 924 N.E.2d at 138

(explaining that to establish that the dismissal judgment was void pursuant to Trial Rule

60(B)(6), the movant must demonstrate that the notice at issue was sufficiently lacking to

deprive it of due process.”). Without more, Five Star’s argument is unavailing.

       Finally, Five Star asserts that Gohmann waived its lack of meritorious claim

argument by failing to raise it before the trial court. However, because Five Star’s

motion for reinstatement was not clearly based on Trial Rule 60(B), we decline to hold

Gohmann was required to raise the issue of the lack of meritorious claim to the trial court

                                            6
in order to preserve the issue for appeal. Moreover, it was Five Star that had the burden

to show sufficient grounds for relief under Trial Rule 60(B) and to make a prima facie

showing of a meritorious defense. See Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind.

1999). Because Five Star did not meet this burden, the granting of its motion for

reinstatement was improper.

                                      Conclusion

      Because Five Star did not establish that it was entitled to relief from judgment

pursuant to Trial Rule 60(B), the trial court improperly granted its motion for

reinstatement. We reverse.

      Reversed.

VAIDIK, J., and MATHIAS, J., concur.




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