Salvino Verta v. Salvino Pucci
14 N.E.3d 749
| Ind. Ct. App. | 2014Background
- Pucci sued Verta/Jason’s Bar for replevin and breach of a partnership agreement; parties resolved part of replevin and proceeded to bench trial on remaining claims.
- The trial court’s January 11, 2013 order required Verta to return a pizza oven within 30 days or incur $100 per day damages; the CCS (chronological case summary) shows the order entered but contains no notation that it was mailed to the parties.
- Pucci filed an enforcement motion April 12, 2013 seeking monetary damages for delay and a rule to show cause; the court set a hearing for June 11, 2013, but the CCS similarly shows the scheduling order without any mailing notation.
- At the June 11, 2013 hearing neither Verta nor his counsel appeared; Pucci reported the oven had been returned June 4 and sought $11,400 (114 days × $100/day); the court entered a June 11 order awarding $11,400 plus interest.
- Nine days later Verta filed a combined motion to reconsider/correct error/relief from judgment alleging he never received the January order or the April scheduling order and therefore did not have notice; the trial court denied the motion without a hearing.
- The Court of Appeals considered whether the trial court abused its discretion in denying relief given the clerk’s duty under Trial Rule 72 to mail orders and to record service on the CCS.
Issues
| Issue | Pucci's Argument | Verta's Argument | Held |
|---|---|---|---|
| Did the trial court abuse its discretion in denying Verta’s post-judgment motion challenging the June 11, 2013 damages order? | Verta should have assumed a hearing would be set after Pucci’s enforcement motion and thus bore responsibility for not appearing. | Clerk failed to serve the January 2013 order and the April scheduling order as required by Trial Rule 72; lack of CCS notation shows no service, constituting excusable neglect entitling Verta to relief. | Reversed: trial court abused its discretion by denying relief; remanded for a hearing because CCS lacks notation of mailing. |
Key Cases Cited
- City of Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. Ct. App. 2010) (standard of review for motion to correct error is abuse of discretion)
- M & J Servs., Inc. v. VMK, Inc., 561 N.E.2d 827 (Ind. Ct. App. 1990) (clerk’s failure to send order and to note mailing on CCS can justify relief)
- Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994) (CCS serves as record of clerk’s service; Trial Rule 72 duties explained)
- Trojnar v. Trojnar, 698 N.E.2d 301 (Ind. 1998) (proper CCS notation presumptively establishes mailing)
- Tam v. State Farm Mut. Auto. Ins. Co., 685 N.E.2d 1133 (Ind. Ct. App. 1997) (party who has entered an appearance is entitled to notice of hearings where evidence will be taken)
- Markle v. Ind. State Teachers Ass’n, 514 N.E.2d 612 (Ind. 1987) (mere ambiguous CCS notations do not establish that specific orders were mailed)