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Indiana Supreme Court holds Rule 60(B) motion not required in certain circumstances

1/16/24

By: Donald Patrick Eckler and Joshua W. Zhao

In Expert Pool Builders, LLC v. Vangundy, No. 23S‐PL‐171 (2024), the Indiana Supreme Court considered whether Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983) requires that a T.R. 60(B) motion to set aside the judgment be filed before a default judgment can receive appellate review but also highlighted the importance of diligence in meeting deadlines. The Indiana Supreme Court held that a T.R. 60(B) motion is required if default judgment is entered before a response is filed. A T.R. 60(B) motion is not required if the party opposing default judgment advances the same arguments on appeal as they did at trial. 

On October 27, 2020, Guiseppe Borracci, an Expert Pool employee, sold a swimming pool to Paul Vangundy. The sales contract identified Borracci, a.k.a. IPOOLS Unlimited, as the pool contractor. Expert Pool stated they were unaware of the sale. A few days after the sale, Expert Pool fired Borracci. When Vangundy followed up about his pool, Expert Pool told Vangundy that Borracci was fired, Expert Pool had no affiliation with IPOOL Unlimited, and Expert Pool did not have a contract with Vangundy. In October 2021, Vangundy sued Borracci, IPOOLS Unlimited, and Expert Pool, alleging a variety of claims including breach of contract, unjust enrichment, fraud, and negligence. None of the defendants responded, and in December 2021, the court granted default judgment to Vangundy.  

Expert Pool moved to set aside the default judgment on the grounds of improper service. The court set aside the judgment and gave Expert Pool until February 7, 2022, to respond. Expert Pool failed to timely respond and Vangundy moved again for default judgment on February 9, 2022, which Expert Pool opposed. On February 11, 2022, Expert Pool moved to dismiss Vangundy’s complaint. Expert Pool’s counsel claimed that the parties had agreed via phone calls in January 2022 that Expert Pool could delay their response until Vangundy and his counsel had the opportunity to discuss the potential dismissal of Expert Pool. Vangundy disputed Expert Pool’s claim and Vangundy’s counsel submitted call records, an affidavit denying Expert Pool’s unsupported claims, and a transcript of a January 24, 2022 voicemail from Expert Pool’s counsel. Expert Pool did not submit any evidence. 

In March 2022, the court held a hearing on Vangundy’s second motion for default judgment and Expert Pool’s motion to dismiss. Vangundy’s counsel asserted that the parties never agreed to a deadline extension and that Expert Pool chose not to respond to Vangundy’s complaint. The second motion for default judgment was granted. Expert Pool filed a T.R. 59 motion to correct error which was denied. Expert Pool appealed, which was dismissed for failure to file a T.R. 60(B) motion. Judge Vaidik dissented, disagreeing with the majority that a T.R. 60(B) motion was necessary since Expert Pool opposed the motion for default judgment at the trial court and filed a T.R. 59 motion. Expert Pool petitioned for transfer to the Indiana Supreme Court which was granted. 

The Indiana Supreme Court held that Expert Pool did not have to file a T.R. 60(B) motion as they had amply preserved its arguments for appellate review. Expert Pool had filed a written response opposing default judgment, made the same arguments at the March 2022 hearing, and then filed a T.R. 59 motion after the trial court entered default judgment. The Indiana Supreme Court reasoned that requiring parties to futilely reassert arguments undermines judicial efficiency and that a final ruling is enough to preserve the issue for appellate review.  

On the merits, the Indiana Supreme Court held that the trial court did not exceed its discretion by granting default judgment, as the defendants cannot avoid a default judgment by ignoring plaintiffs and the appellate court must defer to the trial court’s credibility assessments. 

While this case highlights a crucial issue for preservation of appellate review, it also highlights the importance of diligence in meeting deadlines. 

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com, Joshua Zhao at josh.zhao@fmglaw.com, or your local FMG attorney.