Gifford v. Hartford Steam Boiler Inspection & Ins. Co.

Decision Date13 July 2004
Docket NumberNo. 46A03-0309-CV-363.,46A03-0309-CV-363.
Citation811 N.E.2d 853
PartiesVirginia GIFFORD, Appellant-Defendant, v. The HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, Appellee-Defendant, and Daniel Lee Erickson, Individually and as Father and Personal Representative of the Estate of Joan Roberta Erickson, Deceased, Appellee-Plaintiff.
CourtIndiana Appellate Court

James M. MaCalka, LaPorte, IN, Attorney for Appellant.

Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LLP, LaPorte, IN, R. Dennis Withers, Robins, Kaplan, Miller & Ciresi, LLP, Atlanta, GA, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Virginia Gifford (Gifford), appeals the trial court's denial of her motion to set aside default judgment pursuant to Ind. Trial Rule 60(B).

We affirm.1

ISSUE

Gifford raises several issues on appeal, one of which we find dispositive and restate as follows: whether the trial court abused its discretion in denying her motion to set aside default judgment pursuant to T.R. 60(B).

FACTS AND PROCEDURAL HISTORY

Prior to the death of their daughter, Joan, Gifford and Daniel Erickson (Erickson) were divorced. Erickson was granted custody of Joan, from the time she was fourteen years old. In early 1993, when Joan was eighteen years old, she was employed as a press operator at American Rubber Products Corporation in LaPorte, Indiana. On March 4, 1993, she was killed as the result of a boiler explosion in her workplace.

On March 3, 1995, Erickson filed his Complaint for Wrongful Death and Jury Demand in the LaPorte Superior Court against Hartford Steam Boiler Inspection and Insurance Company (HSB), among others. Erickson also named Gifford as a defendant "as her interests may appear." (Appellant's App. p. 68). On April 19, 1995, Gifford was served by certified mail. On May 15, 1995, a document entitled "Virginia Gifford's Answer to Plaintiff Daniel Erickson's Complaint" was filed with the trial court. The name immediately beneath the signature line is "Greta Van Susteren." (Appellant's App. p. 107). Beneath Ms. Van Susteren's name is "Wendy Ehrlich, Coale & Van Susteren, 5335 Wisconsin Ave N.W., Washington, D.C. 20015." (Appellant's App. p. 107). No other pleadings were filed by Gifford in the case and no appearances were made by Gifford or anyone purporting to represent her.

On May 7, 2001, the trial court began a jury trial, at which neither Gifford nor anyone purportedly representing her appeared. On the second day of trial, the trial court granted Erickson's motion for default judgment against Gifford. The jury trial ended on May 17, 2001, at which time the jury returned its verdict in favor of Erickson and against HSB. On May 8, 2002, Attorney James McCalka entered his appearance on behalf of Gifford and filed a verified motion to set aside the default judgment. Meanwhile, on September 25, 2002, Erickson's $1.4 million verdict against HSB was affirmed on appeal. Subsequently, on April 30, 2003, our supreme court denied HSB's petition to transfer the case.

On May 8, 2003, Gifford filed her "Emergency Motion to Enjoin Clerk from Dispersing Judgment Proceeds and Request for Court Determination on Distribution of Proceeds according to the Intestate Statute and Temporary Order Against Dispersment of Proceeds in the Above Cause." (Appellant's App. p. 16). On May 14, 2003, the trial court denied her motion.

On August 4, 2003, the trial court heard argument on Gifford's motion to set aside the default judgment. Subsequently, on August 8, 2003, the trial court denied Gifford's motion.

Gifford now appeals. Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

Gifford argues that the trial court abused its discretion in denying her motion to set aside default judgment pursuant to T.R. 60(B). Specifically, she asserts that the filing of her answer and affirmative defense put the other parties on notice that she was asserting her right as the non-custodial parent to claim damages for loss of the love, care, and affection of her daughter. Gifford further maintains that neither she nor her attorney, Greta Van Susteren, ever received notice of the May 7, 2003 jury trial setting. In addition, neither she nor her attorney received notice that Erickson's motion for default judgment against Gifford for failing to appear for the jury trial proceedings had been granted by the trial court. Gifford argues that, as a result, her right to due process has been violated.

Conversely, Appellee-Defendant, HSB, contends that Gifford was not entitled to notice because she never entered an appearance or otherwise responded in accordance with the Indiana Rules of Trial Procedure with regard to the filing of Erickson's complaint. In particular, HSB asserts that, although an answer was filed on Gifford's behalf on May 15, 1995, it was not signed by Gifford and there is no evidence that either of the two names listed under the signature line belonged to attorneys licensed to practice law in the State of Indiana. HSB argues that, as a result, Gifford was properly defaulted by the trial court on May 8, 2001, and, thus, the trial court properly denied Gifford's subsequent motion to set aside the default judgment pursuant to T.R. 60(B). We agree with HSB.

Trial Rule 60(B) functions primarily as the avenue of redress for defendants defaulted under T.R. 55 and for plaintiffs who were dismissed pursuant to T.R. 41. King v. King, 610 N.E.2d 259, 262 (Ind.Ct.App.1993),reh'g denied, trans. denied. Under T.R. 60(B), the movant bears the burden of establishing the existence of grounds for relief, which include mistake, excusable neglect, fraud, newly discovered evidence, or the like. Id. We employ an abuse of discretion standard when reviewing the trial court's grant or denial of a T.R. 60(B) motion. Id. at 261. A trial court abuses its discretion when its judgment is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. at 262. In addition, because T.R. 60(B) relief is equitable in nature, the trial court must balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and society in general in the finality of litigation. Id.

Here, Gifford filed her motion to set aside the default judgment pursuant to T.R. 60(B)(1), which states, in pertinent part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for ... mistake, surprise, or excusable neglect.

In her motion, Gifford argues that, because no notice was ever sent to her or to her attorney, she was unaware of any court proceedings, including the May 7, 2001 jury trial setting. However, in its Order denying her motion to set aside the default judgment, the trial court found the grounds Gifford asserted in her motion to be without merit.

First, the Indiana Rules of Trial Procedure require responding parties to file an appearance form setting forth the name, address, and telephone number of the responding party or the name, address, attorney number, telephone number, FAX number, and computer address of the attorney representing the responding party, if that party is so represented. See T.R. 3.1(B). In the instant case, no appearance was ever filed by either Gifford or an attorney representing her. Rather, on May 15, 1995, a document entitled "Virginia Gifford's Answer to Plaintiff, Daniel Erickson's Complaint" was filed with the trial court. On the second page of the document, following "Respectfully submitted" is a purported signature, underneath which appears on successive lines: "Greta Van Susteren, Wendy Ehrlich, Coale & Van Susteren, 5335 Wisconsin Ave N.W., Washington, D.C. 20015." (Appellant's App. pp. 106-7).

This court has held that an appearance "may be effected by any act by which a person recognizes the case as being in court, such as by filing an answer." King, 610 N.E.2d at 262. However, absent admission to the Indiana bar pursuant to pro hac vice appointment, an attorney not licensed to practice law in Indiana may neither enter an appearance on behalf of a client nor file any briefs, papers, or pleadings without the aid of local counsel. In re Coale, 775 N.E.2d 1079, 1080 (Ind.2002), cert. denied; Professional Laminate & Millwork, Inc. v. B & R Enterprises, 651 N.E.2d 1153, 1156 (Ind.Ct.App.1995). We note that, in 1995, when Gifford's answer was filed, the Indiana Rules for Admission to the Bar and the Discipline of Attorneys provided that a member of the bar of another state could appear in a case pending in an Indiana trial court in the trial court's sole discretion. Ind. Admission and Discipline Rule 3 (1995). Any attorney thus admitted pro hac vice was also required to appear with local Indiana counsel and to disclose in her petition to the trial court all pending cases in Indiana in which the attorney was permitted to appear. Id. The rule also required local Indiana counsel to "sign all briefs, papers and pleadings in such cause" and to be "jointly responsible therefore."2 Id. Our review of the instant record turns up nothing to indicate, and Gifford fails to direct us to any evidence that shows, that either person identified on Gifford's answer was licensed to practice law or admitted pro hac vice in the State of Indiana. As a result, any brief, papers, or pleadings filed in this case by Greta Van Susteren or Wendy Ehrlich are a nullity. See Professional Laminate & Millwork, Inc.,651 N.E.2d at 1157 (where this court held "without leave of the court, and absent the signature of local counsel licensed to practice law in this state, any papers filed by [Appellant] were a nullity"). Accordingly, because Gifford failed to appear, plead, or otherwise timely respond to Erickson's Complaint in compliance with the Indiana Rules of Trial Procedure, we hold that the trial court properly...

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