Brett Kimberlin, Appellant-Defendant v. Sandra DeLong, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Brett Kimberlin (“Kimberlin”) appeals, pro se, the trial court's order denying his Trial Rule 60(B) motion for relief from judgment. Kimberlin argues that the trial court abused its discretion by denying his Trial Rule 60(B) motion. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion by denying Kimberlin's Trial Rule 60(B) motion for relief from judgment.

Facts 1

[3] Kimberlin filed his Trial Rule 60(B) motion in this civil case from a judgment that had been entered against Kimberlin and in favor of Sandra DeLong (“DeLong”) in 1983. The general facts of Kimberlin's underlying civil case were set out by the Indiana Supreme Court from Kimberlin's appeal of that judgment.

This lawsuit arises from an explosion on September 6, 1978. Sandra and Carl DeLong were injured while walking through the Speedway High School, Speedway, Indiana, parking lot after leaving a football game when a bomb concealed in an abandoned gym bag exploded. The DeLongs sought damages for their resulting injuries in a civil damage action alleging that Kimberlin manufactured, placed, or caused to be placed a homemade explosive device with the intent to cause severe bodily injury. In 1981, Kimberlin was convicted, after jury trial in the United States District Court for the Southern District of Indiana, of, inter alia, maliciously damaging and destroying, by means of an explosive, real and personal property and causing personal injury to the DeLongs in the incident. The DeLongs thereafter moved for partial summary judgment on the issue of Kimberlin's liability, submitting certified copies of Kimberlin's indictment, verdict, and judgment of conviction from the criminal trial. Kimberlin responded by submitting sworn affidavits denying that he placed the explosive device which injured the DeLongs. Carl DeLong committed suicide on February 23, 1983. The trial court thereafter granted the partial summary judgment motion. On the morning of the damages-only [jury] trial, October 18, 1983, the trial court granted Sandra DeLong's motion to amend the complaint against Kimberlin, converting the cause of action for Carl DeLong's injuries to an action for his wrongful death and denied Kimberlin's motion for a continuance.

Kimberlin v. DeLong, 637 N.E.2d 121, 123-24 (Ind. 1994) (footnote and record citation omitted), reh'g denied, cert. denied. The jury awarded DeLong $360,000 for her personal injury claim from the injuries she sustained in the explosion, and it also awarded DeLong, as personal representative, $1,250,000 on the wrongful death claim (“the 1983 state civil judgment”).

[4] In July 2024, more than forty years after the entry of the 1983 state civil judgment, Kimberlin filed his Trial Rule 60(B) motion for relief from judgment at issue in this appeal. Specifically, Kimberlin requested that the trial court vacate the 1983 state civil judgment pursuant to Trial Rule 60(B)(6), (7), or (8). In Kimberlin's motion, he set forth numerous self-reported facts of events. Kimberlin sought relief from the 1983 state civil judgment based on his assertion of events that he says occurred in either 1989, 1999, 2004, or 2019. For example, Kimberlin asserted that he should have relief from the 1983 state civil judgment because, in 1989, the judge in his civil case, Judge Michael Dugan, had been federally convicted of racketeering, extortion, bribery, mail fraud, and tax evasion. Kimberlin also argued that he should be granted relief based on his allegation that, in 2019, a detective who had been a prosecution witness in Kimberlin's 1981 federal criminal trial had admitted wrongdoing in the federal criminal trial. Within Kimberlin's motion, he also generally challenged the validity of his 1981 federal criminal conviction.

[5] The trial court denied Kimberlin's motion and concluded as follows:

[Kimberlin's] motion is untimely pursuant to Indiana Trial Rule 60(B). The judgment in this case is over 40 years old. The major facts alleged in this case—specifically Judge Dugan's corruption—have been known for over 40 years. The most recent fact alleged in this motion—Detective Appleby's statements about [Kimberlin's] criminal conviction are over 5 years old. Trial Rule 60(B) provides that motions need to be raised within a “reasonable time[.”] A five-year wait is not reasonable time, and a 40-year wait is certainly not reasonable. [Kimberlin's] motion to set aside the judgment is DENIED.

(App. Vol. 2 at 16).²

[6] Kimberlin now appeals.

Decision

[7] At the outset, we note that Kimberlin has chosen to proceed pro se. “[A] pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “[O]ne acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Id. (cleaned up). Pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh'g denied. We will not become a party's advocate, nor will we address arguments that are inappropriate, improperly expressed, or too poorly developed to be understood. Id. at 984.

[8] Additionally, we note that DeLong did not file an appellee brief. When an appellee fails to submit an appellate brief, “we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (cleaned up). “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Id. (cleaned up).

[9] Kimberlin argues that the trial court abused its discretion by denying his Trial Rule 60(B) motion. We disagree.

[10] “The decision of whether to grant or deny such a motion is left to the equitable discretion of the trial court.” Levin v. Levin, 645 N.E.2d 601, 604 (Ind. 1994). Therefore, we review a trial court's Rule 60 ruling only for abuse of discretion. Id. “The burden is on the movant to establish ground for Trial Rule 60(B) relief.” In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010).

[11] Indiana Trial Rule 60(B) provides, in relevant part, as follows:

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

* * * * *

(6) the judgment is void;

(7) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(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).

[12] When a movant seeks relief from judgment under subsection (6), (7), or (8) of Trial Rule 60(B), the movant must file the motion “within a reasonable time[.]” Id. “The determination of what constitutes a reasonable time varies with the circumstances of each case.” Levin, 645 N.E.2d at 604. “Relevant to the question of timeliness is prejudice to the party opposing the motion and the basis for the moving party's delay.” Id. Additionally, a movant who files Trial Rule 60(B) under subsection (8) “must allege a meritorious claim or defense.” T.R. 60(B). “That requires a showing that vacating the judgment will not be an empty exercise.” Cross-Rd. Farms, LLC v. Whitlock, 157 N.E.3d 555, 561 (Ind. Ct. App. 2020) (cleaned up). “The movant must make a prima facie showing of a meritorious claim, that is, a showing that will prevail until contradicted and overcome by other evidence.” Id. (cleaned up).

[13] Here, Kimberlin requested that the trial court vacate the 1983 state civil judgment pursuant to Trial Rule 60(B)(6), (7), or (8). Under each of those subsections, Kimberlin was required to file his Trial Rule 60(B) motion within a reasonable time after the judgment had been entered, and under subsection (8), he was required to show that he had a meritorious claim or defense. In his motion, Kimberlin provided no information regarding his delay of five to forty years in filing his Trial Rule 60(B) motion, and he did not assert that he had a meritorious claim or defense.

[14] The trial court focused on the timeliness requirement and found that Kimberlin had failed to file his Trial Rule 60(B) motion within a reasonable time after the judgment had been entered. The trial court noted that Kimberlin had known of his alleged reasons for seeking relief from judgment for five years up to forty years but that he had failed to file his Trial Rule 60(B) motion until 2024. On appeal, Kimberlin merely asserts that he filed his 2024 Trial Rule 60(B) motion within a reasonable time after the 1983 state civil judgment, but he provides no basis for his delay. Because Kimberlin failed to meet his burden of establishing a ground for Trial Rule 60(B) relief and has failed to show that the trial court abused its discretion by denying his motion, we affirm the trial court's judgment. See, e.g., In re Paternity of P.S.S., 934 N.E.2d at 740 (explaining that the burden is on the movant to establish ground for Trial Rule 60(B) relief); Levin, 645 N.E.2d at 604 (affirming the trial court's denial of the movant's Trial Rule 60(B) motion where the movant's five-year delay in filing his motion was “not a reasonable period of time as contemplated under the [r]ule”).

[15] Affirmed.

FOOTNOTES

2.   We note that the written pagination in Kimberlin's appendix does not match the pagination of the PDF reader because Kimberlin skipped page two when providing a handwritten pagination at the bottom of his appendix pages.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.