Pinkston v. Livingston
| Decision Date | 06 June 1990 |
| Docket Number | No. 84A04-8905-CV-191,84A04-8905-CV-191 |
| Citation | 554 N.E.2d 1173 |
| Parties | Ann PINKSTON, Appellant (Defendant Below), v. Ronnie L. LIVINGSTON, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Woodrow S. Nasser, Terre Haute, for appellant.
Dennis H. Stark, Fleschner, Fleschner, Stark, Tanoos & Newlin, Terre Haute, for appellee.
In September 1983, Ronnie L. Livingston filed suit against Arthur C. Pinkston, Ann Pinkston and the Cowshed Lounge, a bar owned by the Pinkstons and located in Terre Haute, Indiana. The complaint alleged the Pinkstons, as owners of the Lounge, had served alcohol to an intoxicated person, Michael Pitts, who shot Livingston in an altercation just outside the Cowshed Lounge. 1 The case dragged on for several years--through discovery proceedings, numerous continuances and several pre-trial conferences. A final pre-trial conference was held on September 10, 1987 and trial was set for January 26, 1988. Ann Pinkston's attorney attempted to inform her of the trial date by letter, however he received no response. On January 4, 1988, he filed a motion to withdraw alleging Pinkston had failed to communicate with him concerning the case. This motion was granted. The case came to trial on January 26, 1988, and Pinkston failed to appear. The trial court entered a default judgment against her. On April 19, 1988, the court held a hearing on damages and entered judgment against the absent Pinkston in the amount of $150,000.
Pinkston claims she did not receive the letters from her attorney and was unaware of the trial date, her attorney's withdrawal and the hearing on damages until she received, on June 27, 1988, an order to appear in conjunction with proceedings supplemental. At that point, she contacted her former attorney and then obtained a new attorney. On September 26, 1988, her new counsel filed an Ind. Trial Rule 60(B) motion to set aside the judgment. After a hearing, the trial court denied the motion. Pinkston appeals the denial and raises three issues, one of which is dispositive. We rephrase the issue as follows:
Whether the trial court abused its discretion in denying Pinkston's motion to set aside the judgment.
We reverse.
The following additional facts were revealed at T.R. 60(B) hearing. The letters to Pinkston from her attorney (including the letter informing her of his withdrawal) were addressed to the Cowshed Lounge, 1620 South 17th Street. The Cowshed Lounge is located at 1630 South 17th Street. None of the letters was sent certified mail. In addition, the notice of the hearing on damages sent to Pinkston by Livingston was also addressed to 1620 South 17th Street. 2
At the hearing, Pinkston testified that she sold the Cowshed Lounge in 1987, but continued to spend a substantial amount of time there, helping the new owner. Before selling the Cowshed Lounge she had lived in an apartment above it. However, she had also owned property in Farmersburg for many years. After selling the Cowshed Lounge, she moved to the Farmersburg property. In May, 1987 she was deposed by Livingston, and indicated in her deposition that she was moving. She was in contact with the new owner of the Cowshed Lounge throughout 1987 and to her knowledge no mail was delivered for her nor did she receive any telephone calls from her attorney.
She also testified that she first became aware of the default judgment when she received the order to appear in conjunction with the proceedings supplemental. This order was sent to her Farmersburg residence. She explained that she had not contacted her attorney after her deposition because, during the pendency of the case, long periods of time had passed during which there was no activity and she did not consider it to be unusual that she had heard nothing about the case for several months.
In reviewing the denial of a T.R. 60(B) motion, we will reverse only if the trial court has abused its equitable discretion. Graham v. Schreifer (1984), Ind.App., 467 N.E.2d 800. Such an abuse will be found only if the trial court's judgment is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 802.
Pinkston did not specify which provision of T.R. 60(B) was applicable in her motion, but merely set forth the facts on which the motion was based. In its order denying the motion, the trial court did not indicate which T.R. 60(B) provisions it considered or explain how it arrived at the conclusion the motion should be denied. We believe that the following provisions are applicable:
(B) Mistake-Excusable Neglect-Newly Discovered Evidence-Fraud, etc. 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 the following reasons:
(1) mistake, surprise, or excusable neglect;
. . . . .
(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).
Livingston argues that the misaddressed letters from Pinkston's attorney merely indicate neglect on the part of her attorney and that there was no showing that such neglect was excusable. Livingston then notes that the negligence of an attorney is considered to be the negligence of the client, and further notes that notice of proceedings to an attorney is deemed to be sufficient notice. Ind. Trial Rule 72(D). We have no quarrel with these general principles, however we refuse to extend them to the case at bar.
In Graham, supra, Graham sued Schreifer and C.J. Fenzau as individuals and also sued a corporation of which they were shareholders. Fenzau retained an attorney who entered an appearance for all the defendants. After discovery and various pre-trial motions a trial date was set. Before trial, the attorney filed a motion to withdraw because Fenzau had failed to respond to communications from the attorney. There was no evidence that the attorney had attempted to contact Schreifer. The attorney was permitted to withdraw and a default judgment was entered against all the defendants. Nearly ten years later, Graham initiated proceedings supplemental against Schreifer. Schreifer filed a T.R. 60(B) motion alleging he was not notified of the attorney's withdrawal, the request for default judgment, or any subsequent proceedings. The trial court granted the T.R. 60(B) motion and this court affirmed. Although in Graham we affirmed the trial court's decision, we noted:
The abuse of discretion standard of review of trial court judgments is a broad one, and when we considered the decisions of numerous state and federal courts regarding T.R. 60(B) motions, we discovered absolutely no consistency, no pattern to what did or did not constitute an abuse of discretion. Frankly, if the trial court here had denied the motion, we would have been hard-pressed to determine that action would have been an abuse of discretion. (However, the due process considerations herein would probably have required a reversal.) The equities to consider and balance in any given case are usually of such nonrepetitive nature that an overall schemata of all the T.R. 60(B) cases would more likely remind one of the shifting patterns of moire rather than of a steadfast progression between two points labelled "abuse of discretion" and "no abuse of discretion." Within this context, we have endeavored to reach a proper balance between the factual circumstances and the freedom of (and appellate respect for) the decision of the trial court, which basically is what the abuse of discretion standard is all about.
Although in Graham there was evidence that Schreifer did not retain the attorney who represented him, but relied upon his co-defendant to communicate with their attorney, we do not find this fact to be significant. In Fulton v. Van Slyke (1983), Ind.App., 447 N.E.2d 628, 637, we quoted with approval the following observation:
Where, however, the failure to prosecute is solely to the gross neglect of plaintiff's counsel, and plaintiff is unaware of such neglect, dismissal with prejudice may be too harsh a sanction. 5 J. Moore, Moore's Federal Practice Para. 41.11 (2d ed. 1976).
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