MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 12 2016, 8:34 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Arlin Douglas Stephens Kevin M. Quinn
Speedway, Indiana Bose McKinney & Evans LLP
Indianapolis, Indiana
Eric C. Bohnet
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gateway West Townhouse July 12, 2016
Association, Court of Appeals Case No.
Appellant-Defendant, 49A02-1510-PL-1687
Appeal from the Marion Superior
v. Court
The Honorable Timothy Oakes,
George Palmer, Judge
Appellee-Plaintiff. Trial Court Cause No.
49D02-1406-PL-18956
Vaidik, Chief Judge.
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Case Summary
[1] Gateway West Townhouse Association (Gateway) filed a Trial Rule 60(B)
motion for relief from judgment claiming it discovered new evidence that would
have led to a different result in the trial court’s earlier decision to enforce a
settlement agreement between Gateway and George Palmer. The trial court
denied Gateway’s motion. Finding nothing in the record that prevented
Gateway from discovering the evidence or presenting the arguments it now
claims would have led to a different result in the original proceedings, we affirm
the trial court’s decision.
Facts and Procedural History
[2] George Palmer owns a unit in the Gateway West Townhouse community in
Indianapolis. In March 2013, Palmer asked Gateway to repair or replace the
clay sewer pipe that serves his unit based on his understanding of the
community’s covenants. Gateway had Advance Septic and Sewer Service
prepare an estimate for repairs to Palmer’s sewer line on March 16, 2013.
Appellant’s App. p. 35. But Gateway refused to pay for the repair, claiming
that maintenance of utility lines is the individual unit owners’ responsibility and
that the covenants provide an easement for that purpose.
[3] Palmer filed suit seeking a declaratory judgment that Gateway was obligated to
repair and maintain the sewer line. Gateway initiated settlement negotiations
in November 2014, proposing to pay for the repair or replacement of Palmer’s
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sewer line for as long as he owned the unit without admitting any pre-existing
obligation. During negotiations, Palmer’s attorney sent an email to Gateway’s
attorney indicating that Palmer also wanted Gateway to reimburse him for $248
he paid to Benjamin Franklin Plumbing in October “to clear his pipes,” and
clarifying “that [Palmer] and his wife are owners of the condo unit, and that he
is not the sole owner.” Id. at 118. Gateway responded to the email and
amended the proposed settlement agreement so that it included Palmer’s wife
as a co-owner of the unit, required Gateway to pay for repairs as long as the
Palmers were co-owners of the unit, and required Gateway to pay for the $248
cleaning. A week later, Gateway abruptly changed its position and
“terminate[d] all settlement negotiations in this matter.” Id. at 137.
[4] Palmer filed a motion to enforce the unsigned settlement agreement, and, after
a hearing, the trial court granted that motion in March 2015. Gateway filed a
motion to correct error. The trial court granted the motion in part and issued
an amended order enforcing the settlement agreement on May 7, 2015.
Gateway did not appeal that order.
[5] In July, Palmer sent a letter to Gateway requesting payment for the $248 and
that Gateway make arrangements to repair and replace his sewer line. Gateway
responded by requesting, among other things, a copy of the receipt for the $248
cleaning. Palmer sent Gateway the receipt, which included a charge for a video
inspection of his sewer line. Then, in August, Gateway filed a motion for relief
from judgment under Trial Rule 60(B). Gateway argued that it would not have
agreed to the terms of the settlement agreement if it had known Palmer’s wife
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was a co-owner at the time of the $248 cleaning, or if Palmer had disclosed the
video inspection done with the $248 cleaning that showed the sewer line needed
repairs. The trial court denied Gateway’s motion without a hearing.
[6] Gateway now appeals.
Discussion and Decision
[7] Gateway contends that the trial court erred in denying its Trial Rule 60(B)
motion for relief from judgment. Generally, we review the denial of a Trial
Rule 60(B) motion for an abuse of discretion. Jahangirizadeh v. Pazouki, 27
N.E.3d 1178, 1181 (Ind. Ct. App. 2015). However, if a trial court’s ruling is
strictly based upon a paper record, we will review the ruling de novo. Id. The
trial court here ruled solely upon a paper record, and so our review is de novo.1
[8] A motion for relief from judgment under Rule 60(B) is not a substitute for a
direct appeal. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). The
movant must establish one of the eight grounds for relief listed in Rule 60(B).
Id. Rule 60(B)(2) and (3) state the grounds relevant to this appeal. Rule
60(B)(2) provides for relief from judgment based upon newly discovered
evidence and requires a showing that “the newly discovered evidence is
1
We also note that Palmer filed an appendix, but not an appellee’s brief. When an appellee fails to submit a
brief, we do not undertake the burden of developing his arguments. Rosenberg v. Robinson, 38 N.E.3d 693, 698
(Ind. Ct. App. 2015). We apply a less stringent standard of review. Id. We may reverse if the appellant
establishes prima facie error. Id.
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material, is not merely cumulative or impeaching, was not discoverable by due
diligence, and would reasonably and probably alter the result.” Outback
Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 85 (Ind. 2006). And Rule
60(B)(3) provides for relief when a party is prevented from fully and fairly
presenting its case because of fraud, misrepresentation, or other misconduct of
an adverse party. Ordinarily, relief under Rule 60(B)(3) cannot be predicated
on matters or issues which actually were, or which with due diligence could
have been, presented and adjudicated in the original proceedings. State Farm
Fire & Cas. Co. v. Radcliff, 18 N.E.3d 1006, 1014 (Ind. Ct. App. 2014), trans.
denied.
[9] Here, we need only address Gateway’s diligence with respect to the evidence in
question. Gateway has not shown that it acted with the diligence required
under either Rule 60(B)(2) or (3). First, Palmer’s attorney expressly disclosed
that Palmer’s wife was a co-owner of the unit at the outset of settlement
negotiations. Any argument that her co-ownership presented an obstacle to
settlement was available to Gateway during negotiations as well as at the time
of the hearing to enforce the settlement agreement. Second, Palmer disclosed
the $248 cleaning in November 2014, two months before the motion to enforce
the settlement agreement was filed and over three months before the hearing on
the motion, but Gateway waited until July 2015 to request a copy of the receipt,
which listed the video inspection that Gateway now claims is new evidence.
Gateway offered no explanation for why it waited so long to request the receipt.
Further, Gateway does not cite to the record or any authority to explain why it
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believes Palmer had an affirmative duty to separately disclose the video
inspection. Moreover, Gateway knew that the sewer line was in need of
substantial repairs based on its own inspection that was performed in March
2013—before this lawsuit began. Finally, as to the argument that Gateway was
unaware that Palmer’s wife was on the deed at the time of the $248 cleaning,
that fact was discoverable by examining the receipt and the deed. Gateway’s
Trial Rule 60(B) motion fails because the evidence it now raises could have
been presented during the original proceeding. See Outback, 856 N.E.2d at 85;
State Farm, 18 N.E.3d at 1014.
[10] Nevertheless, Gateway argues extensively in its brief that the settlement
agreement should not have been enforced. But Gateway failed to timely appeal
the May 7 amended order enforcing the settlement agreement. Thus, it has
waived the argument.
[11] Gateway failed to show that evidence of Palmer’s wife’s co-ownership and the
video inspection of the sewer line were not available for its defense against
Palmer’s motion to enforce the settlement agreement. Therefore, we find no
error in the trial court’s decision to deny Gateway’s Trial Rule 60(B) motion.
[12] Affirmed.
Barnes, J., and Mathias, J., concur.
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