Opinion
24A-PL-585
08-07-2024
IBIN Management LLC, Appellant-Defendant v. Mechanical Concepts, Inc., Appellee-Plaintiff
ATTORNEY FOR APPELLANT Christie R. DeHaan DeHaan Legal, LLC Dyer, Indiana ATTORNEY FOR APPELLEE R. Brian Woodward Woodward Law Offices, LLP Merrillville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Circuit Court The Honorable Daniel Burke, Judge Pro Tempore Trial Court Cause No. 45C01-2302-PL-142
ATTORNEY FOR APPELLANT Christie R. DeHaan DeHaan Legal, LLC Dyer, Indiana
ATTORNEY FOR APPELLEE R. Brian Woodward Woodward Law Offices, LLP Merrillville, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] Mechanical Concepts, Inc. (Mechanical Concepts), obtained a default judgment against IBIN Management, LLC (IBIN). IBIN filed a motion to set aside the judgment, which the trial court denied. On appeal, IBIN argues that the trial court erred. Because IBIN failed to make a prima facie showing of a meritorious defense, we affirm.
Facts and Procedural History
[¶2] On February 10, 2023, Mechanical Concepts filed a complaint against IBIN for breach of contract and unjust enrichment based on IBIN's alleged failure to pay Mechanical Concepts for the latter's performance of "HVAC general service work on boilers located at several properties operated and managed by" IBIN. Appellant's App. Vol. 2 at 10. On May 18, Mechanical Concepts filed a motion for entry of default judgment pursuant to Indiana Trial Rule 55. The next day, the trial court denied the motion on the basis that proof of adequate service had not been shown.
[¶3] On May 22, a summons was issued to IBIN at an address on Jennings Lane in Crown Point. A deputy sheriff certified that he left a copy of the summons at that address on June 23. On July 27, Mechanical Concepts filed another motion for entry of default judgment. On July 31, the trial court granted the motion and entered judgment against IBIN for $11,560.06. On September 11, Mechanical Concepts initiated proceedings supplemental against garnishee defendant
JPMorgan Chase Bank, with which IBIN had an account. In a filing dated October 3, the bank indicated that IBIN had an account with funds sufficient to satisfy the judgment and that IBIN's current mailing address was the abovementioned address in Crown Point. On October 20, the trial court ordered the bank to pay Mechanical Concepts the amount of the judgment, which the bank apparently did.
[¶4] On November 6, IBIN, by its "owner," filed a motion with the trial court that reads in pertinent part as follows:
(Image Omitted) I AFFIRM, UNDER PENALTY OF PERJURY, THAT THE ABOVE IS TRUE AND CORRECT: Id. at 52. The trial court construed the motion as an answer and request for hearing. On November 13, the trial court set a hearing for December 6.
The record indicates that IBIN's owner/member is Yun Weng, Appellant's App. Vol. 2 at 68, but the documents filed on IBIN's behalf do not bear a typed version of the signatory's name. We note that limited liability companies "must appear by attorney in all cases." Ind. Code § 34-9-1-1(c).
[¶5] On December 6, IBIN filed a motion to reset the hearing and set aside the default judgment, which states, "We filed a motion to reset a hearing court date due to no service to my hand and we did not get any court notice[.]" Id. at 58. IBIN also filed a motion for counterclaim "for $15,000 for damage the properties and others[.]" Id. at 59. Both motions were signed under penalty of perjury. On December 18, the trial court set a hearing for February 8, 2024.
[¶6] On December 28, Mechanical Concepts filed an answer and affirmative defenses to IBIN's counterclaim, as well as a reply and objection to IBIN's motion to set aside judgment. Attached to the objection were exhibits establishing that IBIN had provided the Crown Point address to Mechanical Concepts for the purpose of receiving invoices; that a May 2022 payment from IBIN was from a JPMorgan Chase Bank account bearing that address; and that the Crown Point address was linked via property records to a post office box in Crown Point that was listed as IBIN's principal office address with the Indiana Secretary of State.
According to Mechanical Concepts' supporting memorandum, "mail was returned undeliverable when served at the address" of IBIN's registered agent in Hammond. Appellant's App. Vol. 1 at 77.
[¶7] On February 8, counsel entered an appearance for IBIN. The hearing was held, and only argument was presented. Afterward, the trial court denied IBIN's motion to set aside the default judgment. IBIN now appeals.
Discussion and Decision
[¶8] IBIN argues that the trial court erred in denying its motion to set aside the default judgment. "The decision whether to set aside a default judgment is given substantial deference on appeal, and on appeal, we review the trial court's decision for an abuse of discretion." Baker v. Paschen, 188 N.E.3d 486, 490-91 (Ind.Ct.App. 2022), trans. denied (2023). "An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law." Id. at 491. "[W]e will not reweigh the evidence or substitute our judgment for that of the trial court." Id. "Upon a motion for relief from a default judgment, the burden is on the movant to show sufficient grounds for relief under Indiana Trial Rule 60(B)." Id.
[¶9] "Indiana Trial Rule 60(B) allows courts to set aside default judgments upon motion and upon such terms as are just for specific enumerated reasons." Gregory v. Koltz, 204 N.E.3d 256, 269 (Ind.Ct.App. 2023). At the hearing on IBIN's motion to set aside the default judgment, IBIN's counsel relied on subparagraphs 60(B)(1) ("mistake, surprise, or excusable neglect") and 60(B)(8) ("any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)").
Sub-paragraph (B)(8) is not available if the grounds for relief properly belong in another of the enumerated sub-paragraphs of Trial Rule 60(B). Fish v. 2444 Acquisitions, LLC, 46 N.E.3d 1261, 1267 (Ind.Ct.App. 2015), trans. denied (2016).
[¶10] In addition to establishing valid grounds for relief, a Trial Rule 60(B) movant generally "must also establish a meritorious defense." Stand. Lumber Co. of St. John v. Josevski, 706 N.E.2d 1092, 1096 (Ind.Ct.App. 1999). "This requires a showing 'that vacating the judgment will not be an empty exercise.'" Axelrod v. Anthem, Inc., 169 N.E.3d 131, 141 (Ind.Ct.App. 2021) (quoting Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 73 (Ind. 2006)). The movant must make a prima facie showing, "that is, a showing that will prevail until contradicted and overcome by other evidence." Cross-Road Farms, LLC v. Whitlock, 157 N.E.3d 555, 561 (Ind.Ct.App. 2020) (quoting Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d 611, 614 (Ind.Ct.App. 2007)). The movant must "present 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." Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind. 1999).
[¶11] Mechanical Concepts argues that IBIN failed to make a prima facie showing of a meritorious defense to its claims for breach of contract and unjust enrichment. As mentioned above, IBIN presented no evidence at the hearing on its motion to set aside the default judgment. On appeal, without citation to the record or to any pertinent authority, IBIN argues that its sworn filings established "the meritorious defense that it did not approve the work Mechanical Concepts alleges to have completed and for which it alleges there is a signed Contract for such services." Appellant's Br. at 19. We agree with Mechanical Concepts that this argument is waived. See Bird v. Valley Acre Farms, Inc., 177 N.E.3d 459, 466 (Ind.Ct.App. 2021) ("When an appellant presents only argument, unaccompanied by citation to authority or record citation, the issue is waived for appellate review.").
At the hearing, the trial court remarked, "I do think, although it is a barest .. allegation, .. the claim that these were not contracted for services ... on this motion does constitute a shred of a meritorious claim [sic]." Tr. Vol. 2 at 16. We agree with Mechanical Concepts that this remark was based on the arguments of IBIN's counsel, which are not evidence. Piatek v. Beale, 999 N.E.2d 68, 69 (Ind.Ct.App. 2013), trans. denied. IBIN asserts that it argued that various affirmative defenses "apply to the dispute," including failure to mitigate damages, setoff, and failure to state a claim. Appellant's Br. at 19. We reiterate that "[a]rguments of counsel are not evidence." Piatek, 999 N.E.2d at 69. IBIN says nothing about its $15,000 counterclaim.
[¶12] Regardless, Mechanical Concepts' complaint does not allege that a signed contract existed, and neither a written nor an oral contract is required to recover under an unjust enrichment theory. See DiMizio v. Romo, 756 N.E.2d 1018, 1025 (Ind.Ct.App. 2001) ("Unjust enrichment operates when there is no governing contract."), trans. denied (2002). In sum, we affirm the trial court's denial of IBIN's motion to set aside the default judgment and need not address whether IBIN established valid grounds for relief under Trial Rule 60(B).
The complaint does refer to the payment terms on the invoices, which were attached to the complaint.
[¶13] Affirmed.
Bradford, J., and Tavitas, J., concur.