MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Dec 18 2017, 8:54 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Randall W. Graff                                        Nicholas C. Deets
Kopka Pinkus Dolin PC                                   Hovde Dassow & Deets LLC
Carmel, Indiana                                         Indianapolis, Indiana



                                          IN THE
      COURT OF APPEALS OF INDIANA

Staples The Office Superstore,                          December 18, 2017
Inc.,                                                   Court of Appeals Case No.
Appellant-Defendant,                                    49A05-1705-CT-1118
                                                        Appeal from the Marion Superior
and                                                     Court
                                                        The Honorable David J. Dreyer,
Zhejiang Haoguo Furniture Co.,                          Judge
Defendant,                                              Trial Court Cause No.
                                                        49D10-1403-CT-6936
vs.

Gary Wright, M.D.,

Appellee-Plaintiff



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017        Page 1 of 9
                                                 Case Summary
[1]   Gary Wright, M.D., was injured following the collapse of an office chair that he

      purchased from Staples The Office Superstore (“Staples”). He filed a personal

      injury action against Staples and the chair’s purported manufacturer, Zhejiang

      Haoguo Furniture Company (“Haoguo”). Two years later, Wright sought and

      obtained a default judgment against Staples and Haoguo. Staples filed a

      motion to set aside default judgment pursuant to Indiana Trial Rule 60(B)(1)

      and -(8). The trial court denied the motion, and Staples filed a motion to

      correct error, or, in the alternative, a motion to set aside default judgment

      pursuant to Trial Rule 60(B)(3). The trial court conducted a hearing, and the

      motion to correct error was deemed denied thirty days thereafter pursuant to

      Indiana Trial Rule 53.3(A). Staples then requested a ruling on its alternative

      motion to set aside. The trial court denied Staples’ alternative motion to set

      aside, and Staples now appeals.1 Wright has filed a motion to dismiss this

      appeal as untimely. Finding that Staples has not appealed the court’s denial of

      its motion to correct error and thus is not subject to the thirty-day deadline, we

      deny Wright’s motion to dismiss. Finding that Staples is precluded from filing

      successive Rule 60(B) motions, we affirm.


                                     Facts and Procedural History
[2]   In July 2010, Wright purchased a pre-assembled office chair from Staples. On

      May 1, 2012, the chair collapsed, causing Wright to suffer injury to his knee.


      1
          Haoguo never defended the action below and is not participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 2 of 9
      Wright notified Staples of his injury, and Staples instructed him to send the

      chair and a copy of the sales receipt to Staples for inspection. Wright sent the

      chair and receipt as instructed on June 6, 2012. Staples retained possession of

      the chair throughout the proceedings.


[3]   Believing itself to be the manufacturer of the defective chair, Haoguo agreed to

      indemnify and defend Staples’ interests concerning the chair’s failure. Staples

      informed Wright that Haoguo was the manufacturer of the chair and that

      communication would be handled through Haoguo’s insurer and its

      representative, “David Tan, CPCU, AMIM, Esq., TMCA, New York.”

      Appellant’s App. Vol. 2 at 135. On February 21, 2014, Wright filed a personal

      injury action against Staples and Haoguo. Because Haoguo is a Chinese

      company, Wright filed a motion to appoint a special process server to serve the

      complaint and summons. The trial court granted the motion, and Haoguo was

      served on October 22, 2014. On January 23, 2015, Staples was served with a

      complaint and alias summons. Throughout 2015, numerous emails were

      traded between Wright’s counsel and Tan, with Tan indicating that Haoguo

      wished to explore a settlement option before engaging legally. On November

      24, 2015, Wright sent tender of demand to Tan to resolve his claim against

      Haoguo. On December 1, 2015, Tan notified Wright’s counsel that Haoguo




      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 3 of 9
      would be denying all claims pertaining to Wright’s defective chair, asserting

      that it was not the manufacturer of the chair.2


[4]   As of February 2016, neither Staples nor Haoguo had entered an appearance in

      Wright’s 2014 personal injury action. On February 18, 2016, Wright’s counsel

      emailed Tan in pertinent part, “As an attorney, you are well aware of your

      client’s obligations to appear and defend the case and your obligations to

      Staples based on your acceptance of its tender.” Appellant’s App. Vol. 3 at 29.

      On February 26, 2016, Wright filed a motion for default judgment. On March

      2, 2016, the trial court issued an order of default judgment against Staples and

      Haoguo. On April 14, 2016, the trial court conducted a hearing on damages

      and entered judgment against defendants for $581,442.32.


[5]   On July 14, 2016, Staples filed a Trial Rule 60(B) motion to set aside default

      judgment, citing subparagraphs (1) (“mistake, surprise, or excusable neglect”)

      and (8) (“any reason justifying relief” other than those specified in

      subparagraphs (1) through (4)). On December 6, 2016, the trial court issued an

      order denying Staples’ motion. On January 5, 2017, Staples filed a “Motion to

      Correct Error Under T.R. 59, or in the Alternative, Motion to Set Aside Under

      T.R. 60(B)(3)” (“fraud … or other misconduct by an adverse party”).

      Appellant’s App. Vol. 3 at 13. The trial court conducted a hearing on Staples’

      motion on February 22, 2017. On March 24, 2017, Staples’ motion to correct



      2
        The record is unclear at what point Haoguo notified Staples that it was not the manufacturer of the
      defective chair. By the time Tan notified Wright that Haoguo was not the actual manufacturer, the statute of
      limitations had expired.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017         Page 4 of 9
      error was deemed denied for lack of ruling within thirty days after the hearing,

      pursuant to Indiana Trial Rule 53.3(A). On April 24, 2017, Staples filed a

      request for ruling on its second Rule 60(B) motion to set aside, which the trial

      court denied in a summary order issued on May 1, 2017.


[6]   On May 25, 2017, Staples filed a notice of appeal. Wright filed a motion to

      dismiss this appeal as untimely, and the motions panel of this Court issued an

      order holding the matter in abeyance for the writing panel.


                                     Discussion and Decision

          Section 1 – Because this appeal concerns the trial court’s
       ruling on Staples’ second Trial Rule 60(B) motion rather than
       its ruling on Staples’ motion to correct error, it is not subject
                          to dismissal as untimely.
[7]   Wright has moved for dismissal of this appeal as untimely. “Unless the Notice

      of Appeal is timely filed, the right to appeal shall be forfeited.” Ind. Appellate

      Rule 9(A)(5). When a party has filed a motion to correct error, the time

      limitations for filing an appeal after denial are governed by Trial Rule 53.3(A),

      which reads in pertinent part,


              In the event a court … fails to rule on a Motion to Correct Error
              within thirty (30) days after it was heard …, the pending Motion
              to Correct Error shall be deemed denied. Any appeal shall be
              initiated by filing the notice of appeal under Appellate Rule 9(A)
              within thirty (30) days after the Motion to Correct Error is
              deemed denied.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 5 of 9
      Here, confusion arose when Staples coupled its second Trial Rule 60(B) motion

      with its motion to correct error. When the trial court conducted a hearing on

      Staples’ motion to correct error on February 22, 2017, and did not issue a

      ruling, the motion to correct error was deemed denied on March 24, 2017.

      Staples thus had thirty days from the deemed denied date to initiate an appeal

      on the motion to correct error, that is, a deadline of April 23, 2017. Staples did

      not initiate an appeal on the motion to correct error but instead, one day after

      the deadline, filed a request for a ruling on its alternative Rule 60(B) motion to

      set aside default judgment.


[8]   Staples maintains that the trial court’s May 1, 2017, denial of its alternative

      motion to set aside, predicated on subparagraph (3), commenced the thirty-day

      window for initiating an appeal, thus rendering timely its May 25, 2017, notice

      of appeal. We agree. Trial Rule 60(B) states that a motion to set aside based on

      reasons (1) through (4) shall be filed “not more than one year after the

      judgment.” Our supreme court has “construe[d] Rule 60(B) to provide that all

      such motions brought within one year after the entry of default or grant of

      default judgment will be treated the same [and] … in no event should such a

      motion be treated as a Rule 59 motion [to correct error].” Siebert Oxidermo, Inc.

      v. Shields, 446 N.E.2d 332, 337 (Ind. 1983). Trial Rule 60(C) states that an

      order denying relief on a motion filed under subdivision (B) shall be deemed

      final, and an appeal may be taken therefrom.


[9]   Simply put, this appeal involves Staples’ challenge to the court’s denial of its

      second Trial Rule 60(B) motion. Staples does not appeal the trial court’s denial

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 6 of 9
       of its motion to correct error, and as such, it was not bound by the deemed

       denied date for its motion to correct error. Instead, the thirty-day window for

       Staples’ appeal commenced on May 1, 2017, when the court denied its second

       Rule 60(B) motion, and therefore, its May 25, 2017 notice of appeal was not

       untimely. Consequently, we deny Wright’s motion to dismiss by separate

       order.


             Section 2 – The trial court acted within its discretion in
                denying Staples’ second Trial Rule 60(B) motion.
[10]   Staples challenges the trial court’s denial of its alternative Trial Rule 60(B)

       motion to set aside default judgment. Trial Rule 60(B) provides a mechanism

       for obtaining relief from default judgment under certain limited circumstances,

       and the burden is on the movant to establish grounds for such relief. Seleme v.

       JP Morgan Chase Bank, 982 N.E.2d 299, 303 (Ind. Ct. App. 2012), trans. denied

       (2013). We review the trial court’s ruling on a Trial Rule 60(B) motion using an

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

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

       trial court’s action is against the logic and effect of the facts before it and

       inferences drawn therefrom. In re Paternity of P.S.S., 934 N.E.2d 737, 741 (Ind.

       2010).


[11]   Significantly, here, the appealed order denied Staples’ second Trial Rule 60(B)

       motion, which raised an assertion not included in the original Rule 60(B)

       motion. “A party may not file repeated [Trial Rule] 60 motions until he finally

       either offers a meritorious ground for relief or exhausts himself and the trial

       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 7 of 9
       court in the effort to do so.” Carvey v. Ind. Nat’l Bank, 176 Ind. App. 152, 159,

       374 N.E.2d 1173, 1177 (1978). Thus, unless the additional grounds for relief

       were unknown and unknowable to the movant at the time he filed his first Rule

       60(B) motion, they are not reviewable. Id.


[12]   In Siebert Oxidermo, our supreme court addressed the issue of a party’s repeated

       filing of motions for relief under Trial Rule 60(B). There, Oxidermo predicated

       its original Rule 60(B) motion on excusable neglect under subparagraph (1), and

       then, when the trial court denied its motion to set aside, filed a motion to

       correct error that included new assertions of error, one of which was attorney

       misconduct under subparagraph (3). The supreme court reasoned,


               The misconduct of Shields’ attorney, if it occurred at all, was
               certainly discoverable by Oxidermo when the June 28 Rule 60(B)
               motion was filed. We do not believe Oxidermo should be
               permitted to appeal the denial of the Rule 60(B) motion on
               grounds that were available to it when that motion was filed but
               were not raised until a later time when the Rule 59 motion was
               filed.


       446 N.E.2d at 342.


[13]   Similarly, here, Staples predicated its first motion to set aside default judgment

       on subparagraphs (1) and (8) of Trial Rule 60(B). In claiming excusable

       neglect, Staples focused most of its argument on its alleged lack of notice about

       Wright’s impending motion for default judgment. The email correspondence

       between Tan and Wright’s counsel indicates the defendants’ awareness of their

       duty, as named defendants, to appear and defend the personal injury action,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 8 of 9
       which had been filed two years earlier. The trial court adjudicated the notice

       issue not only as it evaluated Staples’ first Rule 60(B) motion itself but also

       during the hearing on its motion to correct error, which was predicated on the

       denial of the first Rule 60(B) motion. In short, Staples’ second Rule 60(B)

       motion and its briefs on appeal amount to attempts to rehash and repackage the

       notice issue as misconduct and relitigate it under subparagraph (3). These

       issues were not unknown and unknowable at the time of Staples’ first Rule

       60(B) motion. Rather, they were known and litigated. As such, the trial court

       acted within its discretion in denying Staples’ second Rule 60(B) motion.

       Accordingly, we affirm.


[14]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CT-1118 | December 18, 2017   Page 9 of 9
