MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 01 2017, 9:01 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Richard A. Cook Peter H. Pogue
Yosha Cook & Tisch Justin C. Kuhn
Indianapolis, Indiana Schultz & Pogue, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paula Adams, September 1, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1702-CT-349
v. Appeal from the Marion Superior
Court
Shadrach Gonqueh and The Honorable John M.T.
Amazing Family Dental, P.C. Chavis, II, Judge
d/b/a Amazing Family Dental, Trial Court Cause No.
Appellees-Defendants 49D05-1501-CT-3147
Baker, Judge.
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[1] Paula Adams and two co-plaintiffs filed a negligence and dental malpractice
complaint against Dr. Shadrach Gonqueh and Amazing Family Dental
(collectively, the appellees). The appellees filed a motion for summary
judgment against all plaintiffs. The trial court ruled in the appellees’ favor on
all of Adams’s claims, explicitly noting that its order was final; it ruled in the
appellees’ favor on some of the other plaintiffs’ claims, noting that those orders
were not final as certain claims remained to be litigated.
[2] Adams sought to have the order certified for interlocutory appeal and, as the
thirty-day deadline to appeal from a final judgment had passed, sought relief
pursuant to Indiana Trial Rule 60(B). The relief she sought was to have the
summary judgment order re-cast as a non-final judgment. The trial court found
that she was not entitled to relief pursuant to Indiana Trial Rule 60(B) and held
that its original order remained final as to her. She now appeals.
Facts
[3] Adams received dental work from Dr. Gonqueh at Amazing Family Dental on
June 19, June 21, June 26, and July 26, 2012. Adams alleges that she was
consciously sedated for an extraction procedure on June 21, 2012, and while
she went in expecting that Dr. Gonqueh would extract only one tooth, he in
fact extracted eleven.1 Newell Boyce and Donald Scribner also received dental
1
The appellees strenuously contest these allegations, but we need not go into the substance of the contested
facts as they are not at issue in this appeal.
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work from Dr. Gonqueh. Boyce and Scribner claim that they went to Amazing
Family Dental for minor dental problems and were each told that if they did not
have all of their teeth removed, they were in immediate danger of heart attack,
stroke, and/or death. Both Boyce and Scribner consented to having all their
teeth removed.
[4] On January 30, 2015, Adams, Boyce, and Scribner filed a joint complaint
against Dr. Gonqueh and Amazing Family Dental. They collectively raised
claims of negligence, malpractice, the Indiana Crime Victim’s Relief Act
(CVRA),2 and a violation of the Racketeer Influenced and Corrupt
Organizations (RICO) Act.3
[5] On February 8, 2016, the appellees filed a motion for summary judgment
against Adams, arguing that all of her claims are time barred because they were
not filed before the two-year statute of limitations expired4 and that, with
respect to the CVRA and RICO counts, she failed to allege sufficient facts
supporting those claims for relief. The same day, the appellees also filed
motions for partial summary judgment against Boyce and Scribner, arguing that
2
Ind. Code § 34-24-3-1 et seq.
3
Ind. Code § 35-45-6-1 et seq.; 18 U.S.C. § 1961 et seq.
4
See Ind. Code § 34-11-2-3 (providing that any kind of action for damages stemming from professional
services rendered by, in relevant part, dentists, must be brought within two years from the date of the alleged
neglect).
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they had not alleged facts supporting their claims for relief under the CVRA
and RICO counts.
[6] On August 19, 2016, the trial court granted full summary judgment against
Adams on all claims, finding that her claims for negligence and malpractice
were time-barred and that her CVRA and RICO counts failed to state a cause of
action upon which relief may be granted. The trial court explicitly noted that
its judgment was final. Appellant’s App. Vol. II p. 12. The trial court also
granted partial summary judgment against Boyce and Scribner on their CVRA
and RICO counts. This order, however, was only a partial summary judgment
order, as their respective claims for negligence and malpractice remain to be
litigated.
[7] On September 19, 2016, Adams, Boyce, and Scribner filed a joint motion to
certify the trial courts’ summary judgment orders for interlocutory appeal. In
response, Amazing Family Dental argued that Adams was required to file a
traditional notice of appeal because the summary judgment order against her
was full and final.
[8] On October 12, 2016, Adams filed an alternative motion for relief from
judgment pursuant to Indiana Trial Rule 60, arguing that her claims were so
intertwined with those of Boyce and Scribner that she needed to seek
certification of an interlocutory appeal. She also argued that, if that
interpretation was erroneous, it was mistake and/or excusable neglect, and
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asked that the trial court grant her relief from the judgment by converting its
order to a non-final order.
[9] Following a hearing, on January 20, 2017, the trial court denied Adams’s
motion for relief from judgment. In relevant part, the trial court found as
follows:
Plaintiff Adams has requested that, pursuant to Trial Rule
60(B)(1), this court vacate its August 19, 2016, final order
granting summary judgment against Paula Adams and re-enter
the judgment as a non-final order. . . . The August 19, 2016,
Order was a final judgment pursuant to Indiana Appellate Rule
2(H)(2). Adams has failed to show extraordinary circumstances
and has admitted that her interpretation of the order was in error.
Moreover, “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).]
Accordingly, Adams has made no showing of exceptional
circumstances that would invoke the trial court’s equitable
powers under Trial Rule 60(B).
. . . The Court’s August 19, 2016 summary judgment order
entered as to Paula Adams remains a final judgment pursuant to
Indiana Trial Rule[s] 54(B) and 56(C).
Appellant’s App. Vol. II p. 9-10.5 Adams now appeals.
5
On January 25, 2017, the trial court denied the motion to certify its partial summary judgment orders
against Boyce and Scribner for interlocutory appeal.
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Discussion and Decision
[10] Adams appeals the trial court’s order denying her motion for relief from
judgment pursuant to Indiana Trial Rule 60(B). Trial Rule 60(B), in relevant
part, provides that the trial court may relieve a party from a judgment in the
case of mistake or excusable neglect. This Court has noted that 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.” Dillard v. Dillard, 889
N.E.2d 28, 34 (Ind. Ct. App. 2008). On a motion for relief from judgment, the
burden is on the movant to demonstrate that relief is both necessary and just.
Id. at 33. Our Supreme Court has cautioned that “[t]he trial court’s discretion is
necessarily broad in this area as any determination of excusable neglect must
turn upon the unique factual background of each case.” Siebert Oxidermo, Inc. v.
Shields, 446 N.E.2d 332, 340 (Ind. 1983). We will reverse a trial court’s ruling
on a motion for relief from judgment only if it is clearly against the logic and
effect of the facts and inferences before the trial court. Ford Motor Co. v.
Ammerman, 705 N.E.2d 539, 558 (Ind. Ct. App. 1999).
[11] Initially, we note that it is apparent both from the context of the litigation and
from the contents of the trial court’s summary judgment order regarding Adams
that the order was a final judgment. The order itself states that there is “no just
reason for delay” and that the order is a “final judgment” in favor of Dr.
Gonqueh and Amazing Family Dental and against Adams, “as to any and all
claims against Defendants.” Appellant’s App. Vol. II p. 12. And the order did,
indeed, dispose of all of Adams’s claims against both Dr. Gonqueh and
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Amazing Family Dental. Consequently, there can be no genuine dispute that
the order was a final judgment.
[12] Adams argues that because her claims are so intertwined with the claims of
Boyce and Scribner, the summary judgment order was not final. We disagree.
No rule prevents a trial court from treating parties to a lawsuit differently from
one another. See, e.g., Peals v. Cty. of Vigo, 783 N.E.2d 781, 783 (Ind. Ct. App.
2003) (trial court granted summary judgment with respect to fewer than all the
parties but order was nonetheless a final and appealable judgment for the
affected party). Indeed, the Indiana Trial Rules contemplate precisely this
situation. Indiana Trial Rule 54(B) provides as follows regarding judgments
upon multiple claims or involving multiple parties:
When more than one (1) claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may direct
the entry of a final judgment as to one or more but fewer than all
of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for
the entry of judgment. . . . A judgment as to one or more but
fewer than all of the claims or parties is final when the court in
writing expressly determines that there is no just reason for delay,
and in writing expressly directs entry of judgment, and an appeal
may be taken upon this or other issues resolved by the judgment;
but in other cases a judgment, decision or order as to less than all
the claims and parties is not final.
Similarly, Trial Rule 56(C), which governs summary judgment proceedings,
states that “A summary judgment upon less than all the issues involved in a
claim or with respect to less than all the claims or parties shall be interlocutory
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unless the court in writing expressly determines that there is no just reason for
delay and in writing expressly directs entry of judgment as to less than all the
issues, claims or parties.”
[13] Here, the trial court determined that summary judgment in favor of the
appellees was warranted on all of Adams’s claims. That it treated the claims of
Boyce and Scribner differently has no bearing on its disposition of Adams’s
claims. If Adams wished to appeal the summary judgment order, she was
required to do so according to the rules governing appeals from final judgments.
See Indiana Appellate Rule 2(H)(2) (explaining that a judgment is a “final
judgment” if “the trial court in writing expressly determines under Trial Rule
54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing
expressly directs the entry of judgment . . . as to fewer than all the claims or
parties”). Whether or not the facts of her claims are intertwined with those of
Boyce and Scribner has no bearing on the finality of the trial court’s order.
[14] Adams contends that her interpretation of the summary judgment order as a
non-final order from which an interlocutory appeal must be taken was caused
by mistake or excusable neglect and, as a result, that she is entitled to relief
pursuant to Trial Rule 60(B). Adams, however, is not truly seeking “relief”
from the summary judgment order. She is not seeking to have that order set
aside; she is instead seeking to have it re-cast as a non-final order. This remedy
is not contemplated by Trial Rule 60 or any other rule that we can find. In any
event, a mistake in interpreting the trial and/or appellate rules is a mistake of
law, not an act of excusable neglect. This Court has explicitly held that Rule
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60(B) offers no relief if the situation is “the result of any fault or negligence on
the part of the movant.” Dillard, 889 N.E.2d at 34. Given this record, we find
no error in the trial court’s decision to deny relief to Adams pursuant to Trial
Rule 60(B).
[15] Finally, Adams argues that we should permit her to pursue a belated appeal
under Appellate Rule 1, which provides that we “may, upon the motion of a
party or the Court’s own motion, permit deviation from these Rules.” We are
not persuaded that this case presents such extraordinary circumstances that a
dramatic deviation from the thirty-day deadline to appeal a final judgment
should be permitted.
[16] The judgment of the trial court is affirmed.
Kirsch, J., and Bailey, J., concur.
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