                                                                                     FILED
                                                                                May 30 2017, 10:36 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
      Larry L. Barnard                                          Adam J. Sedia
      Eric M. Blume                                             Rubino, Ruman, Crosmer & Polen
      Carson Boxberger LLP                                      Dyer, Indiana
      Fort Wayne, Indiana


                                                  IN THE
           COURT OF APPEALS OF INDIANA

      McKinley, Inc. a/k/a McKinley                             May 30, 2017
      Associates, Inc. d/b/a Summer                             Court of Appeals Case No.
      Wood Apartment Homes,                                     45A05-1612-CT-2853

      Appellant-Defendant,                                      Appeal from the Lake Superior
                                                                Court.
                                                                The Honorable Bruce D. Parent,
              v.                                                Judge.
                                                                Trial Court Cause No. 45D04-1101-
      Michelle Skyllas,                                         CT-12

      Appellee-Plaintiff.




      Sharpnack, Senior Judge


                                      Statement of the Case
[1]   McKinley, Inc., appeals the trial court’s grant of Michelle Skyllas’ motion to

      correct error, which set aside the trial court’s prior grant of summary judgment

      to McKinley. McKinley also appeals the trial court’s grant of Skyllas’ motion



      Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017                        Page 1 of 10
      to withdraw and amend admissions. We reverse and remand with
                      1
      instructions.


                                                      Issue
[2]   McKinley raises three issues, which we consolidate and restate as: Whether the

      trial court erred by granting Skyllas’ motions.

                                Facts and Procedural History
[3]   Skyllas hired her second cousin, attorney Samuel Vazanellis, to sue McKinley.

      Skyllas filed suit on January 12, 2011, claiming she was injured on January 25,

      2009, in a slip and fall on McKinley’s property. She alleged McKinley

      negligently failed to remove snow and ice. McKinley filed a third-party

      complaint against Snow Pros, Inc., claiming Snow Pros was responsible for

      removing snow and ice on its property.


[4]   Skyllas concedes that Vazanellis was uncommunicative from the beginning of

      their attorney-client relationship, and that she had to approach him at family

      gatherings to obtain information about her case. Meanwhile, he failed to

      litigate her case. In 2015, McKinley filed two motions to dismiss Skyllas’

      complaint due to inactivity, pursuant to Trial Rule 41(E). The court denied the

      motions.




      1
       We heard oral argument in Indianapolis, Indiana on May 4, 2017. We thank the parties for their written
      and oral presentations.

      Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017                      Page 2 of 10
[5]   On May 12, 2016, the court set discovery deadlines. On May 13, 2016,

      McKinley served a request for admissions on Skyllas through Vazanellis. The

      request for admissions included potentially dispositive admissions, such as

      “Skyllas has no evidence that McKinley was negligent in any way” and

      “Skyllas did not suffer any injuries or damages as a result of the incident.”

      Appellants’ App. p. 47. Skyllas’ response to the request for admissions was due

      within thirty days. Meanwhile, Snow Pros served interrogatories on Skyllas

      through Vazanellis.


[6]   Vazanellis continued to avoid communicating with Skyllas. From April

      through August 2016, Skyllas called his office a total of fifteen to twenty times

      and called his personal number weekly, and he never responded. Vazanellis

      also ignored her biweekly texts. In late May or early June 2016, Skyllas met

      with Vazanellis’ wife at his office to prepare answers to Snow Pros’

      interrogatories. Vazanellis talked with Skyllas but did not mention the request

      for admissions. He told her that “he had filed everything that needed to be

      filed,” and everything was “under control.” Id. at 65.


[7]   On June 27, 2016, the trial court set a deadline for dispositive motions.

      McKinley timely filed a motion for summary judgment against Skyllas,

      attaching Skyllas’ admissions. She did not respond within the thirty-day

      deadline, and on August 22, 2016, McKinley filed a request for a summary

      ruling.




      Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017     Page 3 of 10
[8]    On August 25, 2016, the Indiana Supreme Court indefinitely suspended

       Vazanellis from the practice of law for failure to cooperate with an

       investigation. On August 30, 2016, the court granted McKinley’s motion for

       summary judgment. Meanwhile, Vazanellis had spent the month of August on

       vacation in Greece. Skyllas learned of his vacation through her daughter, who

       had also vacationed in Greece for part of August and had encountered him.


[9]    At some point in late August or early September 2016, Skyllas learned through

       her other daughter, a law student, that the Indiana Supreme Court had

       suspended Vazanellis’ license and that McKinley had prevailed on summary

       judgment. She hired a new attorney.


[10]   On October 3, 2016, Skyllas, through her new counsel, filed a motion to correct

       error pursuant to Trial Rule 59 and a motion to withdraw and amend

       admissions. McKinley filed responses in opposition to the motions, and Skyllas

       filed replies in support of her motions. On November 22, 2016, the court

       granted both of Skyllas’ motions, concluding that Vazanellis was “extremely

       negligent” and effectively obliterated the attorney-client relationship. Id. at 24.

       The court further concluded withdrawal of the admissions was appropriate.

       Thus, the court vacated the grant of summary judgment and granted Skyllas

       additional time to amend her admissions. This appeal followed.


                                     Discussion and Decision
[11]   McKinley argues the trial court should not have granted Skyllas’ motion to

       correct error and motion to withdraw admissions because she was not entitled

       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017   Page 4 of 10
       to relief through those procedures. Skyllas responds that the trial court did not

       err because Vazanellis’ conduct effectively obliterated the attorney-client

       relationship and she was not responsible for his actions or inactions.


[12]   In general, we review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013).

       Similarly, the grant or denial of a motion to withdraw admissions is generally

       reviewable for an abuse of discretion. Gen. Motors Corp. v. Aetna Cas. & Sur. Co.,

       573 N.E.2d 885, 889 (Ind. 1991). In this case, McKinley did not challenge any

       statements of fact in Skyllas’ motions and does not dispute any facts on appeal.

       We are thus asked to decide a question of law, and we review such questions de

       novo with no deference to the trial court’s determination. Zoeller v. Sweeney, 19

       N.E.3d 749, 751 (Ind. 2014).


[13]   In her motion to correct error, Skyllas raised no error in the process that

       resulted in summary judgment against her, but rather claimed that the court had

       erred in attributing “Vazanellis’s conduct . . . to Plaintiff.” Appellant’s App. p.

       63. We cannot conclude that the trial court’s grant of summary judgment to

       McKinley was erroneous for purposes of Indiana Trial Rule 59. McKinley’s

       motion for summary judgment included dispositive admissions from Skyllas

       due to her failure to respond. In addition, Skyllas did not respond to the

       motion for summary judgment. It is plain to see that the court had no choice

       but to grant the motion. Skyllas did not argue to the trial court or in this appeal

       that her discovery of Vazanellis’ inaction was based on newly-discovered

       evidence.

       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017   Page 5 of 10
[14]   Similarly, Skyllas’ motion to withdraw admissions was procedurally

       inappropriate. It was filed after judgment had been entered, and the trial court

       lacked authority to rule on it. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221

       (Ind. Ct. App. 1998) (“After a final judgment has been entered, the issuing

       court retains such continuing jurisdiction as is permitted by the judgment itself,

       or as is given the court by statute or rule.”) The motion was essentially

       combined with the motion to correct error, and a party may not raise an issue

       for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745,

       752 (Ind. 2000).


[15]   We prefer to address issues on their merits where possible. Kelly v. Levandoski,

       825 N.E.2d 850, 856 (Ind. Ct. App. 2005), trans. denied. In this case, the trial

       court essentially granted relief from judgment by determining that the failure to

       respond to the request for admissions, which provided the basis for the grant of

       summary judgment, was the fault of Vazanellis and not attributable to Skyllas.

       Therefore, the admissions would be withdrawn and the summary judgment

       vacated. In effect, the court granted the type of relief that is available under

       Indiana Trial Rule 60(B)(1), and we will review the trial court’s decision in that

       light.


[16]   According to Indiana Trial Rule 60(B)(1), a court may relieve a party from a

       judgment, including judgment by default, for “mistake, surprise, or excusable

       neglect.” The movant must allege a meritorious claim or defense. Id. Our

       standard of review remains de novo because we are presented with questions of

       law.

       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017     Page 6 of 10
[17]   Skyllas relies on Rose v. Rose, 181 Ind. App. 98, 390 N.E.2d 1056 (Ind. Ct. App.

       1979), to support the result reached by the trial court. In that case, Donald

       Rose was named as a respondent in a petition for dissolution of marriage filed

       in Indiana. Rose moved to Kentucky and hired a Kentucky-based attorney.

       The Kentucky attorney promised to hire local counsel in Indiana. Rose met

       with the Kentucky attorney “four or five times” and was promised each time

       that local counsel had been hired. 390 N.E.2d at 1057. The Kentucky attorney

       had contacted an Indiana attorney, who ultimately declined to file an

       appearance on behalf of Rose after the Kentucky attorney “continually failed to

       respond” to letters and phone calls. Id. Despite choosing not to enter an

       appearance, the Indiana attorney succeeded in obtaining a continuance of the

       evidentiary hearing, and notice of the continuance was sent to the Kentucky

       attorney. The Kentucky attorney did not inform Rose, and neither Rose nor

       the attorney appeared at the rescheduled evidentiary hearing. As a result, the

       trial court entered judgment against Rose and awarded a “substantial share of

       the marital estate” to his wife. Id.


[18]   A month later, Rose met with the Kentucky attorney, who told him that the

       trial court had not yet ruled on the case. The attorney then gave the case file to

       Rose and sent him to a different Indiana attorney. Rose eventually learned of

       the judgment and, through new counsel, filed a motion for relief from

       judgment. The trial court denied the motion.


[19]   On appeal, a panel of this Court reversed. The Court acknowledged that Rose

       bore a heavy burden in seeking relief because “the negligence of the attorney is

       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017   Page 7 of 10
       generally imputed to the client.” Id. at 1058. In reversing, the Court

       characterized the Kentucky attorney’s conduct as “unexplainable and

       inexcusable misfeasance and nonfeasance” while, in contrast, Rose was

       “conscientious and diligent.” Id. The Court, citing a California case,

       determined that where the attorney’s neglect amounts to positive misconduct,

       the attorney-client relationship is obliterated and negligence should not be

       attributed to the client. Finally, the Court stated Rose had alleged a valid

       defense by alleging his wife had squandered marital assets for personal use.


[20]   The facts of Rose are quite different from the facts of this case. The Kentucky

       attorney repeatedly lied to Rose, stating that an Indiana attorney had been hired

       to represent him. Rose had no reason to believe the attorney was neglecting his

       case. By contrast, in this case Vazanellis failed to communicate with Skyllas

       from the beginning, and he repeatedly ignored her phone calls and emails

       during the summer of 2016. She was forced to approach him at family

       gatherings to get information about her case.


[21]   Skyllas points out that Vazanellis told her in late May or early June 2016 “he

       had filed everything that needed to be filed,” and everything was “under

       control.” Appellants’ App. at 65. Those statements were not necessarily

       untrue. The deadline to respond to the request for admissions was set to expire

       on June 13, 2016, so Skyllas’ response was not yet late when she and Vazanellis

       met.




       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017   Page 8 of 10
[22]   In addition, the result in Rose stands in contrast to the many Indiana cases

       which do not relieve the client from the consequences of the attorney’s action or

       inaction. In Ferrara v. Genduso, 214 Ind. 99, 14 N.E.2d 580 (Ind. 1938), the

       Indiana Supreme Court affirmed the denial of a motion to vacate judgment. In

       that case, the defendants hired attorneys to represent them in a foreclosure

       action. The attorneys filed a general answer but did not appear in court on the

       day of trial and agreed with opposing counsel that judgment should be entered

       against the defendants. The defendants later hired new counsel, who

       unsuccessfully sought to vacate the judgment. On appeal, the Indiana Supreme

       Court concluded the actions and omissions of the attorney were attributable to

       the client, and the defendants were not entitled to have the judgment vacated

       regardless of counsel’s inaction.


[23]   The principle discussed in Ferrara has been applied in numerous Indiana cases.

       See Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 867 (Ind. Ct. App. 2011)

       (affirming denial of two motions for relief from judgment and noting even gross

       negligence by attorney was insufficient to establish grounds for relief), trans.

       denied; Thompson v. Thompson, 811 N.E.2d 888, 904 (Ind. Ct. App. 2004)

       (affirming denial of motion for relief from judgment; Court concluded

       attorney’s negligence was binding on client), trans. denied; Kmart Corp. v.

       Englebright, 719 N.E.2d 1249, 1256 (Ind. Ct. App. 1999) (reversing denial of

       Rule 60(B) motion where opposing counsel had informed defendant there was

       no need to file answer while settlement discussions were ongoing and later

       obtained default judgment for failure to file answer), trans. denied; Int’l Vacuum,

       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017    Page 9 of 10
       Inc. v. Owens, 439 N.E.2d 188, 190 (Ind. Ct. App. 1982) (affirming denial of

       motion to set aside default judgment; appellant failed to demonstrate it had

       exercised due diligence in keeping informed about the case). We conclude that

       Rose is factually unique and does not support a departure from the weight of

       Indiana authority in this case.


[24]   Based upon our review of governing caselaw as applied to the undisputed facts

       of this case, Vazanellis’ misconduct, while deplorable, was attributable to his

       client for purposes of Trial Rule 60(B). We cannot conclude that Skyllas

       established she was entitled to relief from judgment with respect to the grant of

       summary judgment or the admissions.


                                                 Conclusion
[25]   For the reasons stated above, we reverse the judgment of the trial court and

       remand with instructions to reinstate the judgment in favor of McKinley and

       against Skyllas.


[26]   Reversed and remanded with instructions.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017   Page 10 of 10
