John C. Parkinson v. Michael L. Parkinson and William L. Parkinson (mem. dec.)
79A05-1607-TR-1653
| Ind. Ct. App. | Mar 29, 2017Background
- Chris Parkinson, an active-duty U.S. Marine Lieutenant Colonel stationed in Florida, filed suit (Aug. 2014) to remove his brother Michael and father William as trustees of the Parkinson Family Trust.
- Trial court entered temporary restraining order and preliminary injunction; case later reassigned to Judge Thacker and trial set for Feb. 24, 2015 (later rescheduled to June 23, 2015).
- Chris moved (Jan. 2015) for a stay under the Servicemembers Civil Relief Act (SCRA/50 U.S.C. § 3932); the court denied the stay, finding he could participate via counsel or electronically. Chris later moved to dismiss (June 17, 2015); at trial the court granted dismissal with prejudice and ordered Chris to pay $17,466 in fees/costs for a Florida deposition.
- Chris did not pay; proceedings supplemental were initiated. Multiple hearings were set; Chris missed a January 2016 supplemental hearing due to illness and submitted medical documentation. Show-cause and supplemental hearings were consolidated for June 20, 2016.
- On June 10, 2016 Chris filed a T.R. 60(B) motion claiming the Dismissal Order violated the SCRA and sought a stay of supplemental proceedings; at the June 20 hearing the court denied the Rule 60(B) motion and the stay, ordered a new supplemental hearing date, and issued a writ of body attachment. The presiding judge later recused himself and reassigned the case.
Issues
| Issue | Plaintiff's Argument (Chris) | Defendant's Argument (Michael & William) | Held |
|---|---|---|---|
| Whether trial court abused discretion denying T.R. 60(B) relief from the Dismissal Order (including fee award) | Denial of Jan. 2015 SCRA stay forced him to dismiss; that constitutional/federal violation justifies relief under T.R. 60(B) (excusable neglect / §60(B)(8)) | T.R. 60(B) cannot substitute for a direct appeal; Chris knew the grounds before the 30-day appeal window expired, so 60(B) is improper | Affirmed: 60(B) denial not an abuse — Chris should have appealed within 30 days; 60(B) not available to revive an appeal absent extraordinary additional facts |
| Whether denial of June 2016 stay and issuance of body attachment violated the SCRA | June 2016 stay should have been granted under SCRA; writ of attachment improperly compelled attendance given military duties | These issues rest on the improperly filed 60(B) motion; appellate review of them would be equivalent to granting the forbidden 60(B) relief | Not reached: appellate court declined to address because Chris’s appeal relied solely on the denied 60(B) motion |
| Whether the trial judge’s comments and demeanor required recusal | Judge’s remarks were improper and warrant removal or reversal | The judge later recused and reassigned the case; parties did not object to reassignment | Not considered on the merits: issue moot because judge recused and case reassigned |
Key Cases Cited
- State v. Collier, 61 N.E.3d 265 (Ind. 2016) (standard of review for Rule 60(B) abuse of discretion)
- DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729 (Ind. 2015) (trial court abuse of discretion includes legal error)
- Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276 (Ind. Ct. App. 2000) (T.R. 60(B) cannot substitute for direct appeal)
- Cullison v. Medley, 619 N.E.2d 937 (Ind. Ct. App. 1993) (same: Rule 60(B) cannot revive expired appeal)
- Vazquez v. Dulios, 505 N.E.2d 152 (Ind. Ct. App. 1987) (Rule 60(B) not a bypass for appellate process)