LLC 101 LLC v. Scott Bender and Jamie Bender, Appellees-Plaintiffs (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2022, the trial court entered default judgment against Indy E Cigs, LLC (“IEC”) and in favor of Scott Bender and his wife Jamie Bender (the “Benders”) as a sanction for the litigation conduct of IEC's attorney. After an appeal and remand, the trial court partially set aside the default judgment on IEC's Trial Rule 60(B) (“Rule 60(B)”) motion. This time, IEC and the Benders both appealed, presenting several issues for our review. In this consolidated appeal, we find the following two restated issues dispositive:

(1) Did the law of the case doctrine bar the trial court from hearing IEC's Rule 60(B) motion after the prior appeal and remand?

(2) Did the trial court abuse its discretion in granting IEC partial relief under Rule 60(B)?

[2] We hold nothing in this Court's prior decision and subsequent orders prevented IEC from returning to the trial court to request Rule 60(B) relief. But because IEC's motion under Rule 60(B)(2) was untimely and IEC did not show exceptional circumstances warranting relief under Rule 60(B)(8), we reverse the trial court's entry of partial relief and order the trial court to reinstate the default judgment against IEC.

Facts and Procedural History

[3] In 2018, Scott Bender was seriously injured when an e-cigarette he placed in his pants pocket either exploded or caught fire. The Benders filed a complaint naming IEC—the e-cigarette coil ¹ vendor—as a defendant, among others.² The second amended complaint alleged four counts against IEC, only two of which are relevant here: Count 2 (negligent warning) and Count 6 (breach of implied warranty of merchantability).³

[4] Summary Judgment Order – On February 15, 2021, the Benders moved for summary judgment against IEC on Counts 2 and 6 and designated evidence in support of their motion. As the trial court later observed, the Benders’ summary judgment motion “could easily have [been] defeated.” Appellant's App. Vol. 7 at 165. But in a fatal mistake that haunts this litigation, IEC's attorney, Patrick C. Badell, untimely moved for an extension of time to respond. The trial court then erroneously granted the motion, despite evidence the response was untimely and ample legal authority that failure to timely respond to a summary judgment motion results in forfeit of a response. These actions set off a flurry of motions and filings during the summer of 2021, each attempting to unwind either Badell's or the trial court's mistake.

[5] After a change of judge and a hearing on multiple pending motions, the trial court issued an “Amended Order on Outstanding Issues” in fall 2021, in which it granted partial summary judgment for the Benders on Count 2 and Count 6 (the “Summary Judgment Order”).⁴ The trial court set a trial on the issue of damages only to begin March 21, 2022, and set new deadlines. The trial court also sanctioned Badell $250 for his repetitive filings.⁵

[6] Default/Sanctions Order – On March 17, the night before jury selection was to begin, IEC moved for relief from the Summary Judgment Order, alleging fraud, misrepresentation, or other misconduct by the Benders and requested a hearing prior to impaneling the jury. In the motion, IEC alleged the Benders’ counsel failed to disclose to IEC a critical document, which document tended to prove the Benders misrepresented a material fact in an affidavit supporting their successful summary judgment motion. After hearing counsels’ arguments with the jury pool waiting in the wings, and over the Benders’ objection, the trial court postponed the trial to hold an evidentiary hearing on the motion.

[7] The Benders then filed a response, arguing they had turned over the document in 2019, and in any case, IEC's own filings revealed IEC was aware of other conflicting evidence on the material fact and had made arguments to that effect. The Benders also moved for sanctions against IEC and Badell, alleging in a detailed, twenty-four-page motion: (1) Badell's litigation conduct was initially “negligent” but rose to “contumacious;” (2) Badell made numerous misleading or false statements to the trial court throughout the case; and (3) Badell's behavior caused irreparable damage to the Benders’ case. Appellant's App. Vol. 5 at 9. The Benders asked the trial court to enter default judgment in their favor as a sanction and award them damages, among other relief.

[8] The trial court held a combined hearing on IEC's eleventh-hour motion for relief and the Benders’ motion for sanctions. On April 25, the trial court struck as “improper” IEC's motion to set aside summary judgment. Appellant's App. Vol. 7 at 162. On May 16, it granted the Benders’ motion for default judgment and sanctions (the “Default/Sanctions Order”). In the Default/Sanctions Order, the trial court found:

If anyone has committed fraud, misrepresentation, and misconduct in this case it is Mr. Badell.

[The Benders’] factual recitation from [their] sanction motion, minus some argumentative and pejorative language, is accurate in all respects. Mr. Badell has made factual and consequential misrepresentation[s] several times. He has routinely filed motions and responses long after deadlines had passed. He has been indolent in his discovery duties. He has filed several frivolous motions to relitigate decided issues. Badell's [motion to set aside] is just the last in a very, very long line of attempts to cover up his failure to timely respond to a summary judgment motion that he could easily have defeated.

Id. at 165. The trial court struck IEC's affirmative defenses; entered default judgment for the Benders on Counts 2 and 6; found IEC was 100% at fault as to the negligent warning claim; awarded the Benders $201,159.77 in compensatory damages and $1,005,798.85 in pain and suffering; awarded the Benders $95,460.94 in attorney fees against IEC and Badell (jointly and severally); assessed jury costs against IEC and Badell; and assessed court costs against IEC. The trial court designated the Default/Sanctions Order a final, appealable, and collectable judgment under Trial Rule 54. On May 24, IEC moved to correct error under Trial Rule 59, challenging the Summary Judgment Order and the Default/Sanctions Order, among others. The trial court denied IEC's motion in open court.

[9] Indy E Cigs 1 Appeal – IEC then appealed to this Court, designating thirteen rulings as appealed orders, including the Summary Judgment Order, the order striking IEC's last-minute motion to set aside summary judgment, and the Default/Sanctions Order. In a memorandum decision issued April 27, 2023, a panel of this Court held the order striking IEC's motion to set aside summary judgment was neither granted nor denied (instead having been struck as improper), and therefore was not a final, appealable judgment. Indy E Cigs LLC v. Bender, No. 22A-PL-1567, at *5 (Ind. Ct. App. Apr. 27, 2023) (mem.) (“Indy E Cigs 1”). The panel also held the Default/Sanctions Order “could qualify” as a final, appealable judgment; but under the law at the time, the proper procedure to set aside a default judgment was to first file a Rule 60(B) motion in the trial court. See id. at *4 (citing Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332, 337 (Ind. 1983)). Because IEC had not done so (having only filed a Trial Rule 59 motion to correct error), this Court determined IEC “failed to preserve this issue for appeal” and dismissed. Id. The panel held all other orders (including the Summary Judgment Order) were not appealable as final judgments, did not qualify as interlocutory appeals of right, or were untimely appealed. Id. And because IEC made numerous misrepresentations in its ninety-eight-page, nonconforming brief, the panel awarded the Benders reasonable appellate attorney fees and remanded for a determination of those fees.⁶ Id. at *5.

[10] Rule 60(B) Motions – IEC did not seek rehearing or transfer of this Court's decision. Instead, before the decision was certified, IEC went back to the trial court and filed on May 12 a Rule 60(B) motion for relief from the Default/Sanctions Order. The Benders moved to strike, arguing the pending appeal deprived the trial court of jurisdiction to hear IEC's motion unless IEC followed a procedure prescribed by the Indiana Supreme Court for seeking Rule 60(B) relief during an appeal. See Appellant's App. Vol. 8 at 42–43 (citing Logal v. Cruse, 368 N.E.2d 235 (Ind. 1977)). Under that procedure (the “Logal procedure”), IEC needed to first request this Court's permission to file a Rule 60(B) motion; if granted, this Court would remand the entire case to the trial court. The trial court struck IEC's motion on May 18 without explanation, but presumably for lack of jurisdiction.

[11] Then on May 26, IEC sought leave from this Court to file a Rule 60(B) motion while the appeal was pending, citing the Logal procedure. On June 22, the writing panel issued a one-page order denying IEC's application. It did not provide a basis for its denial. See Appellees’ App. Vol. 2 at 21.

[12] The memorandum decision was certified on June 28. On July 10, IEC then asked this Court to “reassume appellate jurisdiction” so it could belatedly seek rehearing, which the panel again denied. Id. at 36.

[13] Back in the trial court, IEC, armed with new counsel, moved for relief from the Default/Sanctions Order on September 5. Citing Rules 60(B)(2) and (8), IEC asked the trial court to set aside the determination of liability and damages award in the Default/Sanctions Order.⁷ The Benders objected, arguing IEC's motion was moot, untimely, and the issues raised therein were waived.

[14] The trial court heard argument on IEC's Rule 60(B) motion. In an order issued October 30, later clarified on November 20, the trial court found “[e]xceptional circumstances” existed to justify partially setting aside the Default/Sanctions Order under Rule 60(B)(8) (collectively, the “Partial Relief Order”). Appellant's App. Vol. 8 at 223. The trial court found that, on reconsideration, “the circumstances in this case do not warrant the ultimate sanction of a default judgment against [IEC]” and the “sanction granting default judgment without having an evidentiary basis for the damages amount was excessive.” Id. Still, the trial court did not disturb the default judgment as to liability, setting aside only the approximately $1 million damages award for pain and suffering.⁸ Id. at 223; Appellant's App. Vol. 9 at 34. The trial court also entered final judgment on the Summary Judgment Order at IEC's request.

[15] IEC and the Benders both appealed the Partial Relief Order. On IEC's motion, this Court consolidated the appeals before briefing began and designated IEC as the appellant.

The law of the case doctrine did not bar IEC from seeking Rule 60(B) relief after the prior appeal.

[16] This appeal comes to us from the trial court's order under Rule 60(B)(8) partially setting aside the default judgment it previously entered. The Benders argue the Partial Relief Order went too far by setting aside any part of the Default/Sanctions Order. IEC, on the other hand, argues the Partial Relief Order was in error because it did not go far enough; IEC asks us to set aside the entire Default/Sanctions Order and Summary Judgment Order.⁹

[17] We begin with the Benders’ arguments. The Benders do not argue the trial court erred in setting aside over $1 million in damages for lack of evidentiary support; instead, they argue the trial court had no authority to enter the Partial Relief Order. They contend this Court's dismissal in Indy E Cigs 1 and subsequent two orders—the first denying IEC's application for remand to request Rule 60(B) relief and the second rejecting IEC's request to belatedly seek rehearing—foreclose any relief for IEC on remand. According to the Benders, Indy E Cigs 1 and the orders collectively constitute a denial of IEC's Rule 60(B) arguments on the merits, and therefore the law of the case doctrine barred IEC from subsequently requesting and obtaining partial relief under Rule 60(B).

[18] Under the law of the case doctrine, an appellate court's determination of a legal issue binds both the trial court and the appellate court in any subsequent appeal involving the same case and substantially the same facts. Ind.-Ky. Elec. Corp. v. Save the Valley, Inc., 953 N.E.2d 511, 517 (Ind. Ct. App. 2011), trans. denied. On remand after an appellate decision, the doctrine “requires a trial court to apply the law as laid down by the appellate court.” Riggs v. Burell, 619 N.E.2d 562, 564 (Ind. 1993) (quotation marks and citation omitted). To invoke the law of the case doctrine, the matters decided in a prior appeal must clearly appear to be the only possible construction of the opinion. Id. “Questions not conclusively decided in a prior appeal do not become the law of the case.” Id.

[19] In Indy E Cigs 1, a panel of this Court dismissed IEC's appeal of the Default/Sanctions Order for failing to file a Rule 60(B) motion with the trial court before appealing. See No. 22A-PL-1567 at *4 (citing Siebert Oxidermo, 446 N.E.2d at 337). The essential, relevant holding of Indy E Cigs 1 was that IEC had not preserved its appeal of the Default/Sanctions Order because IEC failed to file a Rule 60(B) motion prior to appeal. The panel dismissed the appeal based on IEC's procedural error. Because the dismissal did not function as a judgment on the merits, nothing on the face of the Indy E Cigs 1 decision prevents IEC from filing a subsequent Rule 60(B) motion in the trial court.

[20] Moreover, in Greer v. Discover Bank, Discover obtained default judgment against Greer, and Greer appealed. 49 N.E.3d 1110 (Ind. Ct. App. 2016), trans. denied. We dismissed Greer's appeal because she had not first filed a motion to set aside the judgment under Rule 60(B). Id. at 1111 (citing Siebert Oxidermo, 446 N.E.2d at 337). In so doing, we observed this Court's dismissal “does not deprive Greer of the opportunity to obtain relief” in the trial court through Rule 60. Id. at 1112 n.2. Like the appellant in Greer, IEC was free to return to the trial court and seek new relief under Rule 60(B), provided it could meet the requirements of that rule.

[21] That said, when IEC first sought Rule 60(B) relief in the trial court on May 12, the trial court had no authority to grant it. Indiana Appellate Rule 8 provides, in relevant part, the “Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the Chronological Case Summary.” App. R. 8. Once the clerk's record is complete, Appellate Rule 8 divests the trial court of jurisdiction to act on the appealed judgment until the appeal is terminated. Conroad Assocs., L.P. v. Castleton Corner Owners Ass'n, Inc., 205 N.E.3d 1001, 1005 (Ind. 2023). After the appellate court obtains jurisdiction, trial courts only retain authority over matters which are independent of and do not interfere with the subject matter of the appeal, such as reassessing costs, correcting the record, or enforcing the judgment. Id. This rule “facilitates the orderly presentation and disposition of appeals and prevents the confusing and awkward situation of having the trial and appellate courts simultaneously reviewing the correctness of the judgment.” Id. (internal quotation omitted).

[22] Appellate Rule 8 therefore constructs a “jurisdictional fence” a party can hurdle only if it follows certain procedures. Id.; see also App. R. 37 (providing a mechanism for the trial court to regain jurisdiction while an appeal is pending). This Court also retains jurisdiction until its opinion or memorandum decision is certified. See G.W. v. State, 231 N.E.3d 184, 192 (Ind. 2024) (citing App. R. 65(E), which prohibits a trial court from taking any action in reliance on an appellate court's opinion or memorandum decision until the opinion or decision is certified). “The circumstances of a particular case—however unusual they may be—do not enable a trial court to hurdle [Appellate Rule 8’s] jurisdictional fence.” Conroad, 205 N.E.3d at 1006.

[23] When IEC first sought Rule 60(B) relief from the trial court on May 12, the panel's decision in Indy E Cigs 1 had been issued but not certified. Because IEC's appeal and Rule 60(B) motion both dealt with the Default/Sanctions Order, the trial court had no authority to act on the motion at that time for lack of jurisdiction.

[24] To hurdle Appellate Rule 8’s fence for Rule 60(B) relief, our Supreme Court decades ago adopted a procedure for disposition of Rule 60(B) motions while a judgment is on appeal. See Logal, 368 N.E.2d at 237. Under the Logal procedure, a party seeking to file a Rule 60(B) motion must file a verified petition with the appellate court seeking leave to file the motion. Id. The appellate court then makes “a preliminary determination of the merits of the movant's 60(B) grounds” and, accepting appellant's specific, non-conclusory factual allegations as true, determines whether “there is a substantial likelihood that the trial court would grant the relief sought.” Id. If the appellate court determines the motion has sufficient merit, it will remand the entire case to the trial court for plenary consideration of the Rule 60(B) grounds.¹⁰ Id. The decision to remand does not require the trial court to grant the motion. Id. The rationale underlying the Logal procedure is “to permit fair consideration of the motion without unduly disrupting the appeals process.” Falatovics v. Falatovics, 72 N.E.3d 472, 479 (Ind. Ct. App. 2017). The procedure applies as long as the same judgment is the subject of the appeal and the motion for relief from judgment. Id. The procedure has been employed where the movant is either the appellant or appellee. Id.

[25] Two weeks after the trial court struck IEC's May 12 motion for Rule 60(B) relief, IEC invoked the Logal procedure in this Court, asking permission to file a Rule 60(B) motion in the trial court while the appeal was still pending. The panel that decided Indy E Cigs 1 denied IEC's application without opinion. Seizing on the Logal procedure language requiring the appellate court to make a merits-based determination, the Benders argue the “inescapable conclusion of this Court's denial” of IEC's application “is that the arguments IEC and Badell wished to make at the trial court were without merit.” Appellees’ Br. at 25.

[26] But the Benders read too much into the denial.

Two considerations underlie our decision in Logal. One is the unfairness of requiring a litigant to elect either an appeal or motion for relief as remedy for an improper judgment against him. The other is the economy of judicial resources which can be effected by the avoidance of considering appeals made unnecessary by the granting of Rule 60 relief.

Davis v. State, 368 N.E.2d 1149, 1151 (Ind. 1977). And as this Court has more recently explained:

If a judgment is on appeal, and there are grounds to set aside that same judgment, it is a waste of the parties’ and the court's resources to follow through with the appeals process only to have that same judgment set aside ․ The motion to set aside should be heard before the appeal proceeds so that all issues can be appealed at once.

Falatovics, 72 N.E.3d at 479.

[27] Indy E Cigs 1 was issued on April 27, 2023. IEC asked for this Court's permission to move for Rule 60(B) relief on May 26. If the purpose of the Logal procedure is in part to facilitate an efficient appellate process, it is hard to see how this purpose could be achieved by entertaining a Rule 60(B) motion after an appellate opinion has been issued. Rather than acting as determination on the merits of IEC's Rule 60(B) arguments, our colleagues’ denial just as likely (if not more so) recognizes there was no efficiency to gain by remanding the case at that point. And questions not conclusively decided do not become the law of the case. Riggs, 619 N.E.2d at 564.

[28] Finally, the Benders contend IEC should have sought rehearing or transfer if it believed the panel incorrectly decided Indy E Cigs 1, rather than return to the trial court and move to have the Default/Sanctions order set aside under Rule 60(B). The Benders seem to suggest this Court's denial of IEC's motion to reassume appellate jurisdiction should be read as a determination on the merits of IEC's Rule 60(B) arguments. But our appellate rules prohibit extensions of time to seek rehearing. See App. R. 54(B) (“A Petition for Rehearing shall be filed no later than thirty (30) days after the decision. Rule 25(C) ․ does not extend the due date, and no extension of time shall be granted.”). We decline the Benders’ invitation to read more into the straightforward application of our appellate rules.

[29] Together or individually, Indy E Cigs 1 and this Court's subsequent orders did not prohibit IEC from returning to the trial court to file a Rule 60(B) motion, provided IEC could meet the requirements of Rule 60(B).

The trial court abused its discretion in entering the Partial Relief Order.

[30] Now we turn to IEC's appeal of the Partial Relief Order, entered on IEC's September 5 motion for relief from default judgment brought under Rules 60(B)(2) and (8). A trial court's order denying or granting relief on a motion to set aside default judgment is deemed a final judgment from which an appeal may be taken. See T.R. 60(C). On appeal, a trial court's decision to set aside a default judgment is entitled to deference and reviewed for abuse of discretion. Coslett v. Weddle Brothers Constr. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003). A trial court abuses its discretion if it misinterprets the law or if its decision is clearly against the logic and effect of the facts and circumstances before it. T.D. v. State, 219 N.E.3d 719, 724 (Ind. 2023). We do not reweigh evidence in conducting this review. Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind. 1994).

[31] Rule 60(B) provides, in relevant part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;

* * * *

(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).

Ind. Trial Rule 60(B). The decision of whether to grant or deny a Rule 60(B) motion is in the trial court's equitable discretion. Gipson, 644 N.E.2d at 877.

IEC's request for relief under Rule 60(B)(2) was untimely.

[32] Rule 60(B)(2) permits a trial court to exercise its equitable discretion to set aside a default judgment for “any ground for a motion to correct error[.]” T.R. 60(B)(2). The general provisions of Rule 60(B) require a party requesting relief under subsection (2) to file the motion “not more than one year after the judgment ․ was entered” and “allege a meritorious claim or defense.” T.R. 60(B).

[33] The trial court entered the Default/Sanctions Order on May 19, 2022. On September 5, 2023, IEC filed the Rule 60(B) motion resulting in the appealed Partial Relief Order. IEC's motion was thus untimely under Rule 60(B)(2) as IEC moved for relief more than one year after the trial court entered the Default/Sanctions Order.

[34] Still, IEC points to its May 12 Rule 60(B) motion, arguing “[u]ndoubtably, this filing was within the one-year requirement of T.R. 60(B)(2).” Appellant's Reply Br. at 24. But as discussed above, jurisdiction rested with this Court until the panel's decision was certified on June 28, and as of May 12, IEC had not followed the procedures available to it to invoke the trial court's jurisdiction. IEC makes no argument on appeal the trial court erred by striking the May 12 motion, arguing only that the Benders should have moved to continue the Rule 60(B) proceeding, rather than move to strike it. See id. at 25–26. Accordingly, we will not disturb the trial court's order striking IEC's Rule 60(B) motion filed May 12.

Exceptional circumstances were not present to permit relief under Rule 60(B)(8).

[35] Turning now to the authority under which the trial court granted relief, Rule 60(B)(8)’s “catchall provision” provides relief from the judgment for any reason other than those set forth in Rules 60(B)(1)–(4). T.D., 219 N.E.3d at 724. Subsection (8) of Rule 60 “is not available if the grounds for relief properly belong in another of the enumerated subdivisions of T.R. 60(B).” Summit Account & Comput. Serv. v. Hogge, 608 N.E.2d 1003, 1006 (Ind. Ct. App. 1993). A litigant must file a Rule 60(B)(8) motion within a reasonable time after the judgment was entered and allege a meritorious claim or defense. T.R. 60(B). The determination of what constitutes a reasonable time varies with the circumstances of each case. Gipson, 644 N.E.2d at 877. For the purposes of Rule 60(B), a meritorious claim or defense is one that would lead to a different result if the case were tried on the merits. State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016) (quotation omitted). Additionally, our precedent requires the moving party to “demonstrate some extraordinary or exceptional circumstances justifying equitable relief.” Id. Therefore, to be granted relief, IEC must have shown: (1) it brought its claim within a reasonable time given the circumstances of the case; (2) extraordinary or exceptional circumstances justify that relief; and (3) it has alleged a meritorious claim or defense. See T.R. 60(B); Collier, 61 N.E.3d at 269.

[36] The Benders argue exceptional or extraordinary circumstances do not exist to justify relief under Rule 60(B)(8). Appellees’ Br. at 28 (“Lawyer error is not an ‘extraordinary circumstance.’ ”). They also argue “the Trial Rule 60(B) Motion was clearly, and always had been, a subsection (2) motion, with the addition of subsection (8) cobbled on to get around the one-year time limit.” Id. On appeal, IEC contends the extraordinary circumstance justifying Rule 60(B)(8) relief is the “complicated and unprecedented” procedural history of this case, comprised of “the first-ever intersection of two procedural, common-law requirements (or, honestly, ‘traps’) that both encompass Trial Rule 60(B) filings as they relate to appellate jurisdiction.” Appellant's Reply Br. at 28 (citing Logal and Siebert Oxidermo).

[37] Like the procedural events of Siebert Oxidermo, the procedural history of this case is “to say the least tortured and confusing.” 446 N.E.2d at 334. But a complex case history does not necessarily establish extraordinary circumstances warranting relief from a default judgment entered as a sanction for a party's litigation conduct and its subsequent procedural missteps. Rule 60(B)(8) relief is limited to extraordinary circumstances “which are not the result of any fault or negligence on the part of the movant.” Kretschmer v. Bank of Am., N.A., 15 N.E.3d 595, 600 (Ind. Ct. App. 2014), trans. denied.

[38] After the trial court entered default judgment in 2022, IEC appealed the Default/Sanctions Order without first moving for relief from the judgment under Rule 60(B) as then required by Siebert Oxidermo. Notwithstanding our Supreme Court's recent opinion in Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 314 (Ind. 2024)—holding that, in some cases, a Rule 60(B) motion is not a prerequisite to appeal a default judgment—Siebert Oxidermo’s language is quite straightforward:

We hold the proper procedure in the Indiana Rules of Trial Procedure for setting aside an entry of default or grant of default judgment thereon is to first file a Rule 60(B) motion to have the default or default judgment set aside. Upon ruling on that motion by the trial court the aggrieved party may then file a Rule 59 Motion to Correct Error alleging error in the trial court's ruling on the previously filed Rule 60(B) motion. Appeal may then be taken from the court's ruling on the Motion to Correct Error.

446 N.E.2d at 337; see also Greer, 49 N.E.3d at 1111 (observing Siebert Oxidermo’s holding “is plainly stated and has been relied on as such by this court on numerous occasions” and “[s]ignificant academic authority also agrees with this court's application of Siebert Oxidermo”). The panel in Indy E Cigs 1 sua sponte dismissed the appeal under that authority, relying also on this Court's majority opinion in Expert Pool Builders, LLC v. Vangundy, 203 N.E.3d 508 (Ind. Ct. App. 2023), then pending on transfer (later vacated), and the cases cited therein.¹¹ There was ample legal authority for this Court's dismissal of IEC's appeal when Indy E Cigs 1 was decided.¹²

[39] Yet IEC admitted Badell's preparation and research did not yield the Siebert Oxidermo rule or the Logal procedure. See Appellant's App. Vol. 8 at 234 (in a proposed order, stating “neither the Court nor [the Benders], [IEC] or Badell were aware of Siebert Oxidermo's T.R. 60(B) filing requirement when [IEC] and Badell originally filed their Motion to Correct Error”). The fact IEC's attorney was unaware of the requirement to file a Rule 60(B) motion before appealing a default judgment is not an extraordinary circumstance to justify setting aside a portion of the Default/Sanctions Order under Rule 60(B)(8). IEC hired counsel of its own choosing and stuck with that counsel even after the trial court entered the Default/Sanction Order in response to his litigation conduct. Competent representation “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Ind. Professional Conduct Rule 1.1.¹³ Rule 1.1 “does not demand perfection or even specialized expertise from attorneys. Rather, it demands competency and explicitly anticipates, both in the text of the rule and its commentary, that preparation and research frequently will be necessary to meet the needs of the representation.” In re Blickman, 164 N.E.3d 708, 715 (Ind. 2021); see also 7 Am. Jur. 2d Attorneys at Law § 150 (“An attorney is presumed to know the law, and an attorney's knowledge is imputed to the client if it relates to the proceedings for which the attorney has been employed.”). The fact this Court dismissed IEC's appeal due to procedural missteps is not an extraordinary circumstance justifying relief from the judgment or a second appeal of the Default/Sanctions Order.

[40] Because extraordinary circumstances were not present, the trial court abused its discretion in granting IEC's Rule 60(B)(8) motion. Accordingly, we reverse the Partial Relief Order and remand with instructions to reinstate the Default/Sanctions Order.¹⁴

Conclusion

[41] This Court's prior opinion did not conclusively bar IEC from pursuing Rule 60(B) relief in the trial court. But IEC's subsequent motion for Rule 60(B) relief was untimely and did not present extraordinary circumstances justifying relief. Therefore, the trial court abused its discretion in entering the Partial Relief Order. We accordingly reverse the Partial Relief Order and remand with instructions to reinstate the Default/Sanctions Order.

[42] Reversed and remanded.

FOOTNOTES

1.   The coil is a component part of an e-cigarette that heats and vaporizes the fluid a user inhales. See Appellant's App. Vol. 2 at 77, 110.

2.   The Benders also sued 101 Vape, Inc. (the rechargeable lithium-ion battery vendor) and Naptown Vapors, LLC (the e-cigarette vendor); they asserted the Chinese corporation that designed, manufactured, and packaged the e-cigarette and coil (Shenzhen IVPS Technology Co. Limited d/b/a SMOK) and the battery manufacturers (Sony Electronics Inc. and Sony Corporation of America) were “beyond the reach of Indiana's Long Arm Statutes, and [could not] be subjected to personal jurisdiction in Indiana.” Appellant's App. Vol. 2 at 74.

3.   The Benders also brought Count 5 (negligence) and Count 10 (breach of implied warranty of fitness for a particular purpose) against IEC.

4.   The original order was issued September 9 and amended September 13. Counts 5 and 10 remained unresolved by the ruling, but the trial court later dismissed those two counts on the Benders’ motion.

5.   The trial court denied IEC's request to certify for interlocutory appeal the Summary Judgment Order, so IEC leveraged the $250 sanction order into an interlocutory appeal of right and attempted to appeal the Summary Judgment Order at the same time. See Ind. Appellate Rule 14(A)(1) (permitting interlocutory appeals of right of orders for the payment of money). The Benders forfeited the $250 sanction, and on their motion, we dismissed the appeal.

6.   There were also some claims still pending in the trial court against defendant Naptown Vapors.

7.   IEC did not seek to set aside the attorney fees already awarded and collected.

8.   In moving for clarification of the October 30 order, IEC stated the parties appeared by counsel for a telephonic status conference after the trial court issued the order. See Appellant's App. Vol. 9 at 7. According to IEC, the trial court stated at the conference it did not intend to set aside the entire default judgment; the only sanction it meant to set aside was the damages for pain and suffering for lack of an evidentiary basis. See id. The November 20 order of clarification amended only the amount of the pain and suffering damages set aside. As we read it, and the parties seem to agree, the Partial Relief Order did not disturb the determination of liability entered in the Default/Sanctions Order. See Appellant's App. Vol. 8 at 223 (“The Benders may assert their request for damages at trial as originally planned” and “[a]ll other requests made in [IEC's] motion are denied.”).

9.   Although IEC ultimately seeks reversal of both the Default/Sanctions Order and the Summary Judgment Order, IEC implicitly acknowledges the Summary Judgment Order is only subject to reversal if the entire Default/Sanctions Order is first set aside. The Benders explicitly make this argument. Appellees’ Br. at 29 (arguing that leaving “the original [Default/Sanctions Order] in place ․ renders the trial court's [Summary Judgment Order] immaterial for this Court's consideration”). We agree with this posture. A default judgment is a confession of the complaint and rendered without a trial of any issue of law or fact. K.R. Calvert Co., LLC v. Sandys, 141 N.E.3d 811, 821 (Ind. Ct. App. 2020). After the entry of default judgment, the defendant may no longer avail itself of substantive defenses. Id. Although the trial court first entered the Summary Judgment Order, the subsequent entry of default judgment against IEC means the allegations in the complaint are deemed confessed and the only thing left to determine was damages. See id. at 822.

10.   When the Logal procedure was adopted, “[i]f the appellate court denies the application for remand, that ruling may be assigned as grounds for rehearing and, where appropriate, transfer.” Logal, 368 N.E.2d at 237. But our current transfer rules preclude a party from petitioning for transfer in such circumstances because the denial of an application for remand does not constitute an “adverse decision” from which transfer may be sought under Appellate Rule 57(B). State Farm Fire & Cas. Co. v. Radcliff, 973 N.E.2d 566, 567 (Ind. 2012) (published order).

11.   IEC makes much of Judge Vaidik's dissent in Expert Pool Builders, in which she distinguished Siebert Oxidermo. Expert Pool Builders, 203 N.E.3d at 513–14 (Ind. Ct. App. 2023) (Vaidik, J., dissenting), vacated by 224 N.E.3d 309 (Ind. 2024). Judge Vaidik would have held a party need not first file a Rule 60(B) motion prior to appeal if the party (1) already appeared in the trial court before default judgment was entered, and (2) “fully presented its position as to why [default judgment] should not be entered.” Expert Pool Builders, 203 N.E.3d at 513 (Vaidik, J., dissenting). Of course, that was the situation facing this Court in Indy E Cigs 1, as IEC had appeared and filed a lengthy Trial Rule 59 motion to correct error before appealing the Default/Sanctions Order. But Judge Vaidik's dissent did not win the day in this Court, and the majority opinion in Expert Pool Builders and the panel's decision in Indy E Cigs 1 were on solid legal ground. Our Supreme Court adopted Judge Vaidik's position when it issued its opinion in Expert Pool Builders. See 224 N.E.3d at 314 (Ind. 2024) (holding a defendant who appeared, opposed a motion for default judgment, and filed a motion to correct error, but did not file a Rule 60(B) motion, “preserved its argument for appellate review”). However, that opinion was issued on January 2, 2024—well after Indy E Cigs 1 was certified.

12.   To the extent IEC now argues the panel wrongly decided Indy E Cigs 1, IEC could have sought rehearing or transfer to the Supreme Court. See App. R. 54 (rehearing); App. R. 55(H) (listing considerations governing the grant of transfer). IEC had a potential avenue for relief and might have invoked Judge Vaidik's Expert Pool Builders dissent on transfer, but did not timely pursue it. Further, we reject IEC's argument that we should retrospectively apply the Supreme Court's opinion in Expert Pool Builders to this case. See Appellant's Reply Br. at 31–33. IEC relies on Don Medow Motors, Inc. v. Grauman, in which this Court applied a Supreme Court rule announced while the appeal was pending with this Court and the appellant filed a notice of additional authority before an opinion was issued and certified. 446 N.E.2d 651, 654 (Ind. Ct. App. 1983); see also Center Sch. Twp. v. State ex rel. Bd. of Sch. Comm'rs, 49 N.E. 961, 962–63 (Ind. 1898) (applying Supreme Court decision decided before appeal to case currently on appeal). Unlike in those cases, the Supreme Court decided Expert Pool Builders six months after this Court's prior decision was certified. Once Indy E Cigs 1 was certified, its application of Siebert Oxidermo became the law of the case and binding on the trial court and this Court on appeal. Indiana applies the law of the case doctrine in its strictest sense; in fact, Indiana courts have held numerous times the law of the case must be followed even when the earlier decision is deemed incorrect. Ind.-Ky. Elec. Corp., 953 N.E.2d at 518. Indiana has recognized a very narrow exception in cases where the initial decision was “ ‘clearly erroneous and would work a manifest injustice.’ ” Ind. Farm Gas Prod. Co., Inc. v. S. Ind. Gas & Elec. Co., 662 N.E.2d 977, 981 (Ind. Ct. App. 1996) (quoting State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989)), trans. denied. That is not the case here.

13.   We express no opinion on whether Badell committed attorney misconduct in this case.

14.   Because of our disposition of this issue, we need not address the propriety of the default judgment. See Riggs, 619 N.E.2d at 563 (“[R]ulings are not required on additional issues once reversible error is found.”).

Kenworthy, Judge.

Judges Felix and DeBoer concur. Felix, J., and DeBoer, J., concur.