      MEMORANDUM DECISION                                                           FILED
                                                                               Apr 14 2016, 9:27 am

      Pursuant to Ind. Appellate Rule 65(D), this                                   CLERK
      Memorandum Decision shall not be regarded as                              Indiana Supreme Court
                                                                                   Court of Appeals
      precedent or cited before any court except for the                             and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Meaghan Klem Haller                                       Fred Pfenninger
      Bingham Greenbaum Doll                                    Jonathan P. Sturgill
      Indianapolis, Indiana                                     Pfenninger & Associates
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Barn Phil, LLC, et al.,                                   April 14, 2016

      Appellants-Defendants,                                    Court of Appeals Case No.
                                                                49A02-1508-PL-1043
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable John F. Hanley,
      TWCF Property, LLC,                                       Judge
      Appellee-Plaintiff.                                       Cause No. 49D11-1410-PL-33066




      Bradford, Judge.



                                            Case Summary
[1]   Appellants-Defendants Barn Phil, LLC, et al. (collectively, “Barn Phil”), appeal

      from the trial court’s reinstatement of the lawsuit filed against them by

      Appellee-Plaintiff TWCF Property, LLC. In August of 2014, TWCF filed a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-PL-1043 | April 14, 2016             Page 1 of 7
      summons in Marion Small Claims Court against Barn Phil seeking possession

      of premises at 1279 West 29th Street and for damages of $8000.00. When Barn

      Phil filed a jury demand, the matter was transferred to Marion Superior Court.

      The trial court ordered TWCF to replead its case, and, when it did not,

      dismissed the lawsuit. In May of 2015, TWCF moved to have its complaint

      reinstated pursuant to Indiana Trial Rule 60(B), which the trial court granted.

      Barn Phil now appeals, contending that the trial court erred in granting

      TWCF’s motion to reinstate. Because we agree with Barn Phil, we reverse and

      remand with instructions.



                            Facts and Procedural History
[2]   On August 22, 2014, TWCF filed a complaint in Marion Small Claims Court

      alleging that Barn Phil was in unlawful possession of leased premises at 1279

      West 29th Street in Indianapolis. The complaint sought immediate possession

      and $8000.00 in damages. On September 19, 2014, Barn Phil filed a jury

      demand, which the trial court granted five days later, also transferring the case

      to Marion Superior Court.


[3]   On October 17, Marion Superior Court 11 ordered TWCF to replead its case in

      its entirety, and the corresponding entry in the chronological case summary

      indicates that “[t]he new complaint shall be filed within twenty (20) days of the

      date the cause is docketed and filed with the Marion Superior Court. Failure to

      comply with this rule shall result in the Court imposing sanctions, which may

      include dismissal or default where appropriate.” Appellant's App. p. 1. TWCF

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      did not replead, and the trial court dismissed the lawsuit on November 20,

      2014.


[4]   On May 6, 2015, TWCF moved to reinstate its complaint pursuant to Trial

      Rule 60(B), to which Barn Phil responded on May 21, 2015. On August 11,

      2015, the trial court granted TWCF’s motion to reinstate its lawsuit.



                                 Discussion and Decision
[5]   Barn Phil contends on appeal that TWCF has failed to establish (1) a surprise,

      mistake, or excusable neglect that would support reinstatement of their lawsuit

      or (2) that it had a meritorious claim or that the outcome of the case would be

      different if tried. TWCF argues that (1) the dismissal by the trial court was

      without prejudice because the Trial Rules did not yet apply when it occurred

      and (2) the trial court did not abuse its discretion in reinstating its lawsuit. We

      address TWCF’s claim regarding application of the trial rules first.

                          I. Whether the Trial Rules Applied
[6]   TWCF claims that pursuant to Marion County Local Rule 49-TR 79.1 Rule

      226(A), the Trial Rules regarding involuntary dismissal would not have applied

      in this case until its claim had been repled. Therefore, TWCF argues, the

      dismissal of its complaint was without prejudice, thus allowing it to refile

      without resorting to Trial Rule 60(B). As Barn Phil notes, however, because

      TWCF advances this argument for the first time on appeal, it is waived for

      appellate review. See, e.g., Thompson v. Thompson, 811 N.E.2d 888, 915 (Ind. Ct.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-PL-1043 | April 14, 2016   Page 3 of 7
      App. 2004) (“Jack may very well have had a valid dissipation claim. However,

      Jack’s claim cannot be addressed for the first time on appeal.”), trans. denied.


[7]   In any event, TWCF’s argument is unpersuasive. Marion County Local Rule

      226(A) provides that:


               A cause of action which comes to the Marion Superior Court
               from the Small Claims Courts of Marion County for either jury
               trial or appeal shall be repled in its entirety commencing with the
               plaintiff below filing a new Complaint in compliance with the
               Indiana Rules of Trial Procedure. The new Complaint shall be
               filed within 20 days of the date the case is docketed and filed in
               the Marion Superior Court or as otherwise ordered by the Court.
               Failure to comply with this Rule shall result in the Court
               imposing sanctions which may include dismissal or default where
               appropriate.
[8]   TWCF argues that the first sentence of Local Rule 226(A) means that the Trial

      Rules do not apply until after the new complaint has been filed. This

      interpretation is not tenable. Indeed, the Local Rule makes it clear that the new

      complaint must be filed in compliance with the Trial Rules, meaning that they

      do not “kick in” only after the complaint is filed. And, pursuant to Trial Rule

      41(B), dismissal for failure to prosecute a civil action or comply with the Trial

      Rules “operates as an adjudication on the merits.” TWCF’s argument that its

      complaint was not dismissed with prejudice is waived and without merit in any

      event.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-PL-1043 | April 14, 2016   Page 4 of 7
                                        II. Trial Rule 60(B)                 1




[9]   Trial Rule 60(B) provides, in part, that “[o]n 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[.]” “A motion for relief from a judgment under

      T.R. 60(B) is addressed to the equitable discretion of the trial court.” Minnick v.

      Minnick, 663 N.E.2d 1226, 1228 (Ind. Ct. App. 1996).


              We review the grant or denial of … Trial Rule 60(B) motions for
              relief from judgment under an abuse of discretion standard.
              Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270
              (Ind. 2008); Outback Steakhouse of Florida v. Markley, 856 N.E.2d
              65, 72 (Ind. 2006). On appeal, we will not find an abuse of
              discretion unless the trial court’s decision is clearly against the
              logic and effect of the facts and circumstances before it or is
              contrary to law. Miller v. Moore, 696 N.E.2d 888, 889 (Ind. Ct.
              App. 1998).
      Cleveland v. Clarian Health Partners, Inc., 976 N.E.2d 748, 755 (Ind. Ct. App.

      2012), trans. denied.


              The burden is on the movant to demonstrate that relief under
              T.R. 60(B) is both necessary and just. Fairrow v. Fairrow, 559
              N.E.2d 597, 599 (Ind. 1990). Relief under T.R. 60(B) also
              requires that the movant make a prima facie showing of a
              meritorious defense for [reason (1)]. Smith v. Johnson, 711 N.E.2d
              1259, 1265 (Ind. 1999). A meritorious defense refers to



      1
        TWCF also argues that Indiana Code section 34-11-8-1, or the Journey’s Account Statute, supports
      reinstatement of its complaint. TWCF did not raise this argument below and has therefore waived it for
      appellate consideration. See, e.g., Thompson, 811 N.E.2d at 915.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-PL-1043 | April 14, 2016           Page 5 of 7
               “evidence that, if credited, demonstrates that a different result
               would be reached if the case were retried on the merits and that it
               is unjust to allow the default to stand.” Id.
       In re Rueth Dev. Co., 976 N.E.2d 42, 51 (Ind. Ct. App. 2012), trans. denied.


[10]   Trial counsel for TWCF argued below that he believed that the dismissal of

       TWCF’s complaint was without prejudice, allowing it to refile at its leisure.

       Even if we assume that this is true, we conclude that such a basis is insufficient

       to support reinstatement. As we have held repeatedly, “Trial Rule 60(B) does

       not provide a vehicle whereby a party may be afforded relief from his mistake of

       law.” Goldsmith v. Jones, 761 N.E.2d 471, 474 (Ind. Ct. App. 2002). TWCF

       contends that ambiguity in the Marion County Local Rules regarding whether

       the Trial Rules applied to its complaint led not to a mistake but to a reasonable

       misinterpretation of the applicable law. As we have already concluded,

       however, TWCF’s argument that the Trial Rules would not have applied to its

       complaint until after it was filed is not tenable. The record indicates that

       TWCF made a mistake of law, which is insufficient to support reinstatement.

       “Trial Rule 60(B) affords relief in extraordinary circumstances which are not

       the result of any fault or negligence on the part of the movant.” Id. TWCF has

       failed to establish such extraordinary circumstances. Consequently, we reverse




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-PL-1043 | April 14, 2016   Page 6 of 7
       the trial court’s reinstatement of TWCF’s complaint and remand with

       instructions to dismiss it.2


[11]   We reverse the judgment of the trial court and remand with instructions.


       Bailey, J., and Altice, J., concur.




       2
        Because we conclude that TWCF has failed to establish a mistake, surprise, or excusable neglect that
       would justify reinstatement, we need not address its contention that it established that the result of the case
       would be different if tried.

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