LLC v. IndianaPK, Inc., Appellee (2026)

MEMORANDUM DECISION

[1] Edward Bartley (“Edward”) and Eric Bartley (“Eric,” and together with Edward, the “Bartleys”) appeal the denial of their motion for relief from judgment. IndianaPK, Inc. (“Pizza King”) requests appellate attorney fees. We affirm the denial of the Bartleys’ motion for relief from judgment and remand for an award of reasonable appellate attorney fees.

Facts and Procedural History

[2] On October 3, 2024, Pizza King filed a complaint against Midwest Pizza King, LLC (“Midwest Pizza King”), the Bartleys, Seth Grant (“Seth”), and Austine Grant (“Austine”) alleging that Midwest Pizza King, Edward, and Seth (together, “Supply Agreement Defendants”) entered into an agreement (the “Supply Agreement”) related to the purchase of supplies from Pizza King,¹ that Supply Agreement Defendants failed to make payments to Pizza King after February 9, 2024, and that the Supply Agreement provided for late fees, interest, and reimbursement of collection costs and attorney fees. The complaint alleged:

18. On or about October 28, 2022, [the Bartleys] signed a Personal Guarantee (“Bartley Guarantee”). A true and accurate copy of the Bartley Guarantee is attached hereto and incorporated as Exhibit 3.

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20. [The Bartleys] ․ guaranteed payment to [Pizza King] of all amounts owed [by] Supply [Agreement] Defendants in accordance with the Supply Agreement. See Exhibit 3 ․

Complaint at 4. The complaint also alleged that Seth and Austine signed a personal guarantee. The complaint alleged counts of breach of contract, account stated, unjust enrichment, and breach of guarantee. With respect to the Bartley Guarantee, the complaint alleged, in paragraph 42, that the Bartleys “entered into [the] Bartley Guarantee. See Exhibit 3,” and alleged, in paragraph 43, that “[t]he Bartley Guarantee provided that [the Bartleys] guaranteed [Pizza King] payment in accordance with the Supply Agreement.” Id. at 7-8.

[3] The Supply Agreement and the Bartley Guarantee were attached to the complaint. The Bartley Guarantee provided, “I/We, Edward and Eric Bartley ․ do herewith personally guarantee the due performance of Midwest Pizza King” and, “[i]n the event that Midwest Pizza King fails to make payments to [Pizza King], ․ the Guarantor[s] do hereby guarantee to make full payment to [Pizza King] in the same way as if they were the original entities of said Agreement.” Personal Guarantee, Exhibit 3 to Complaint. Two signatures dated October 28, 2022, appear on the Bartley Guarantee.

[4] On October 8, 2024, Eric was served with the complaint. On October 31, 2024, counsel for the Bartleys filed an appearance and a motion for enlargement of time to file an answer, and the court granted the motion. On December 2, 2024, the Bartleys by counsel filed a second motion for enlargement of time to file an answer, stating “[t]he enlargement of time is necessary to allow the undersigned an opportunity to explore a settlement with opposing counsel” and, “[i]n addition, ․ [the Bartleys] have asked the undersigned to research and consider a cross-claim against ․ [Seth] and [Austine].” December 2, 2024 Second Motion for Enlargement of Time at 1. The court granted the motion. On December 20, 2024, the Bartleys filed an answer to the complaint. With respect to the allegations in paragraphs 18, 20, 42, and 43 of Pizza King's complaint, the Bartleys’ answer stated: “Answer: Defendants are without sufficient knowledge to agree or deny this paragraph.” Answer to Complaint at 6, 13.

[5] On February 25, 2025, Pizza King filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law based on the Supply Agreement and guarantees. On March 28, 2025, Seth and Austine filed a reply in opposition to Pizza King's summary judgment motion. The Bartleys did not file a response to Pizza King's summary judgment motion. On April 7, 2025, the court entered summary judgment as to the Bartleys and Midwest Pizza King and set a hearing on Pizza King's summary judgment motion as to Seth and Austine. On July 16, 2025, the court held the scheduled hearing. On July 17, 2025, the court found that Pizza King was entitled to judgment as a matter of law as to Seth, entered judgment in favor of Pizza King and against the Bartleys, Seth, and Midwest Pizza King in the total amount of $57,973.61, and entered summary judgment in favor of Austine as to any claims against her.

[6] On November 4, 2025, the Bartleys filed a motion for relief from judgment. The motion argued that Pizza King “presented to the Court a document purporting to bear Defendant's signature,” “Defendant has since obtained evidence, including, but not limited to, a sworn statement and passport stamps, establishing that the signature on the alleged contract was not Defendant's and was instead forged,” “Eric ․ was not in the United States on the day the purported contract was executed,” and “he did not sign the contract and did not authorize anyone to sign on his behalf.” Appellee's Appendix Volume II at 4. The motion cited Ind. Trial Rule 60(B)(3) and 60(B)(8). Eric stated in an affidavit that he was not in the United States on the day the purported contract was executed, did not sign the contract, and did not authorize anyone to sign the contract on his behalf. Pizza King filed a response arguing the alleged forgery and stamps on Eric's passport did not constitute newly discovered evidence. Pizza King argued that it committed no fraud or misconduct to justify relief under Ind. Trial Rule 60(B)(3).

[7] On February 4, 2026, the court held a hearing. The court stated, “explain to me how somebody gets sued, you file an Answer in denial, apparently don't review the contract, don't do anything else,” “there is a Summary Judgment Motion filed, they don't respond to Summary Judgment at all,” and “then on the eve of collection, I figured out that now I was not in the country and could not have signed the contract.” Transcript Volume II at 4. Counsel for the Bartleys replied, “they did ․ but it just didn't spark their mind that it wasn't their signature, until they actually started digging into it, and at that point, they are like, oh yeah, I wasn't even there,” “maybe we didn't dig into it far enough,” and “at the end of the day, [ ] he didn't sign the contract.” Id. The court admitted Eric's passport. Seth testified, “I was there when the contract was fulling [sic] executed” and “Mr. Eric Bartley was not present. But, Mr. Ed Bartley did sign both names.” Id. at 13-14.

[8] On February 6, 2026, the court issued an “Order on February 4, 2026, Hearing” denying the Bartleys’ motion for relief from judgment. Appellants’ Appendix Volume II at 32. The court noted there was no assertion that Edward's signature was forged or unauthorized. The court found:

11. As to Defendant Eric Bartley, the evidence in support was his affidavit and attachments including his passport which demonstrated that he was out of the country at the time of the signing of the documents. At the hearing, counsel submitted the entire Eric Bartley passport to supplement the copied pages attached to his affidavit. In addition, Defendant Seth Grant voluntarily offered testimony under oath that Defendant Eric Bartley was not present at the time of signing the documents.

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13. The Court now further denies relief as to Defendant Eric Bartley. The passport evidence only supports the conclusion that he was outside the country during the applicable period. His assertion that he did not authorize his signature and that it was forged is simply self-serving and lacks credibility. Defendant Eric Bartley never challenged service in this case. He was served on October 8, 2024, meaning he was supplied with a copy of the Complaint with attachments at that time. Trial Rule 11 requires attorneys to have a belief there is good ground for the filing of any pleading. Here, Eric Bartley's counsel filed an Answer asserting that Eric Bartley lacked sufficient information to admit or deny the contract and guarantee. Moreover, [the Bartleys’] counsel filed a motion seeking additional time alleging he was discussing settlement and that his clients had asked him to investigate a cross claim. It is therefore logical and reasonable to conclude that Eric Bartley reviewed the Complaint and attachments and provided counsel with some good faith basis to file the pleadings filed on his behalf. Taken together, all the foregoing is far more credible evidence than the Eric Bartley affidavit and therefore he has not carried his burden for relief.

Id. at 33-34.

Discussion

[9] The Bartleys argue the trial court “abused its discretion by denying Trial Rule 60(B) relief despite substantial corroborated evidence supporting [their] forgery defense.” Appellants’ Brief at 7. They assert they “presented sworn affidavit testimony, original passport evidence, and corroborating testimony from [Seth] establishing that [Eric] was not present during execution of the disputed agreement.” Id. at 8. They argue, “[r]elief should be liberally granted where justice so requires.” Id. at 10.

[10] A grant of equitable relief under Ind. Trial Rule 60 is within the discretion of the trial court, and generally we review a trial court's ruling on Rule 60 motions for abuse of discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind. 2006). The burden is on the movant to demonstrate that relief is both necessary and just. Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 372 (Ind. Ct. App. 2012), reh'g denied, trans. denied, cert. denied, 571 U.S. 1131, 134 S. Ct. 952 (2014).

[11] Ind. Trial Rule 60 provides:

(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 a judgment, including a judgment by default, for the following reasons:

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(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;

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(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).

The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.

[12] To satisfy Ind. Trial Rule 60(B)’s requirement of a meritorious defense, the movant must “present evidence that, if credited, demonstrates that a different result would be reached if the case were retried on the merits and that it is unjust to allow the judgment to stand.” Outback Steakhouse, 856 N.E.2d at 73-74 (citation and quotations omitted). A party making a claim under Ind. Trial Rule 60(B)(3) and alleging fraud or misrepresentation must demonstrate that: (1) “the opposing party knew or should have known from the available information that the representation made was false,” and (2) “the misrepresentation was made with respect to a material fact which would change the trial court's judgment.” Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 310-311 (Ind. Ct. App. 2012) (citations omitted), reh'g denied, trans. denied.

[13] To the extent the Bartleys asserted that, after “digging into it,” Transcript Volume II at 4, they obtained evidence that Eric's signature on the Bartley Guarantee was “forged,” Appellee's Appendix Volume II at 4, the evidence to which they point—Eric's affidavit statements and stamped passport—did not constitute “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.” Ind. Trial Rule 60(B)(2). Further, we cannot say the Bartleys demonstrated “fraud ․, misrepresentation, or other misconduct of an adverse party” under Ind. Trial Rule 60(B)(3) or a reason “justifying relief from the operation of the judgment” under Ind. Trial Rule 60(B)(8). While Eric's passport may support a finding that he was out of the country on the day the Bartley Guarantee was signed, the evidence does not establish that his signature was unauthorized. The complaint specifically alleged that Eric “guaranteed payment to [Pizza King] of all amounts owed [by] Supply [Agreement] Defendants in accordance with the Supply Agreement,” and a copy of the Bartley Guarantee was attached as an exhibit to the complaint. Complaint at 4. The complaint was served on Eric in October 2024. The Bartleys’ counsel filed two motions requesting additional time to file an answer, and the second motion stated the requested time was necessary “to allow the undersigned an opportunity to explore a settlement with opposing counsel” and “to research and consider a cross-claim.” December 2, 2024 Second Motion for Enlargement of Time at 1. The Bartleys filed an answer in December 2024 stating they were “without sufficient knowledge to agree or deny” the allegation that they entered into the Bartley Guarantee on or about October 28, 2022. Answer at 6, 13.

[14] Pizza King filed a motion for summary judgment based in part on Eric's agreement, pursuant to the Bartley Guarantee, to guarantee the payments due by Supply Agreement Defendants to Pizza King under the Supply Agreement, and the Bartleys did not file a response to the summary judgment motion. Seth testified, “I was there when the contract was fulling [sic] executed,” that Eric was not present, and that Edward “did sign both names.” Transcript Volume II at 13-14. The trial court stated that it was reasonable to conclude that Eric reviewed the complaint and attachments and provided his counsel with a good faith basis to file the pleadings on his behalf, and it found Eric's assertion that he did not authorize his signature lacked credibility. We cannot say the Bartleys met their burden as the movants to demonstrate that relief was necessary and just.

[15] Pizza King requests remand for the determination and award of reasonable appellate attorney fees based on the terms of the Supply Agreement. When a contract provides that attorney fees are recoverable, appellate attorney fees may also be awarded. O'Brien v. 1st Source Bank, 868 N.E.2d 903, 909 (Ind. Ct. App. 2007). Paragraph 10.d. of the Supply Agreement provides, “[u]pon the occurrence of an event of default under this Agreement by [Supply Agreement Defendants], Pizza King shall have the right to recover from [them] all amounts then due ․ and may declare immediately due and payable expenses of collection, including, without limitation, court costs and attorney's fees.” Appellee's Appendix Volume II at 13. Based on Paragraph 10.d. of the Supply Agreement, we remand for a calculation of Pizza King's reasonable appellate attorney fees.

[16] For the foregoing reasons, we affirm the trial court's denial of the Bartleys’ motion for relief from judgment and remand for an award of reasonable appellate attorney fees.

[17] Affirmed and remanded.

FOOTNOTES

1.   The Supply Agreement included the date of October 28, 2022, next to the signatures of Edward and Seth.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.