Question about small claims case

What is the name of your state? Indiana

I filed a small claims case against my neighbor for some work I hired him to do that he messed up, and he in turn counter-sued me for money he felt I owed him. The case was presented about a month ago, and I won my claim for 2500.00, and he lost his counter-claim. Today, I received a copy of a document they filed with the court that reads......

VERIFIED 60(B) MOTION TO SET ASIDE JUDGEMENT.....and goes on to say that he feels the judges decision was unfair, and that he felt the judge misunderstood his presentation, etc....and just lists all of the same evidence he presented originally, and ends with him stating he feels the judgement needs to be set aside for a new hearing.

I understand after a judgement, that a person has 30 days to appeal, but is this the appeal process?.....I thought appeals would go through an appeals court. Do I need to do anything at this time, or is this more a plea from him to the judge in an effort to get him to reconsider?, and if so, is this typically retried? Just trying to understand the process....I assume the court will reply to their motion and either deny it, or retry the case, and I assume I will get a copy of their response, but I just want to make sure if I need to do anything at this point.

Thanks in advance.

EbayBob said:

What is the name of your state? Indiana

I filed a small claims case against my neighbor for some work I hired him to do that he messed up, and he in turn counter-sued me for money he felt I owed him. The case was presented about a month ago, and I won my claim for 2500.00, and he lost his counter-claim. Today, I received a copy of a document they filed with the court that reads......

VERIFIED 60(B) MOTION TO SET ASIDE JUDGEMENT.....and goes on to say that he feels the judges decision was unfair, and that he felt the judge misunderstood his presentation, etc....and just lists all of the same evidence he presented originally, and ends with him stating he feels the judgement needs to be set aside for a new hearing.

I understand after a judgement, that a person has 30 days to appeal, but is this the appeal process?.....I thought appeals would go through an appeals court. Do I need to do anything at this time, or is this more a plea from him to the judge in an effort to get him to reconsider?, and if so, is this typically retried? Just trying to understand the process....I assume the court will reply to their motion and either deny it, or retry the case, and I assume I will get a copy of their response, but I just want to make sure if I need to do anything at this point.

Thanks in advance.

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You most likely will get a court date to argue the motion .

The neighbor would argue why it should be set aside , and you would argue why it shouldn't .

and goes on to say that he feels the judges decision was unfair, and that he felt the judge misunderstood his presentation,

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What he feels is irrelevant , he has to have some legal issues to argue .

Also , you are correct , the next step is appeals .

Is there any chance the judge could just deny the motion, and we dont even go to court.....the reason I say that is because when we tried the case it was pretty clear the judge thought he was an idiot with what he was countersuiing for....he had no basis, and it was obvious he was just trying to gouge me with what he was doing. I just wondered if judges review any notes from the case before ruling on the motion, or if us having to go to court again for this is pretty cut and dry?

Also, they filed this on the 30th day after the judgement....does this now reset the appeal 30 day period until this motion is settled. Meaning, if the motion is denied at some point, do they still have the 30 day period over again to appeal? Or is this now the appeal and if this is denied, its over?

Thanks again for the reply

Actually, if there was a trial, issues in dispute were contested and there was a ruling on the claim and counter-claim, the motion probably should not even lie. Indiana Trial Rule 60(B) is basically your procedural mechanism is gain relief from a judgment or final order – i.e. vacate a judgment (which is not the same as an appeal). A showing of a meritorious defense is a condition, and you’ve been through that at trial.

BL is right; an appeal should be the next/last step, however 60(B)(2) does appear to come close to being what in other states might be denominated a motion for reconsideration.

(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 an entry of default, final order, or final 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;
(5) [edited - pertains only to divorce decrees]
(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). 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding or for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

If your neighbor is simply re-making the argument made at trial, one might think and expect the court to recognize that and deny with little or no argument.

Here's why I dont want to go to court again

Thought I would explain a little more about his counter-suit so you would understand why I said the judge thought he was an idiot. The whole reason we went to court was because he refused to finish the work I hired him for, until I met his demands for an additional $900.00. My suit against him was the cost of hiring someone else to finish the work he refused to do which was a cost of 2,500.00.

So one would expect his countersuit to be for 900.00 since that is what he invoiced me for, so I was surprised when he countersued for $2,500.00. In court, he said that because I took him to court, he is going to charge Market Value for the work, instead of 900.00. He then presented a quote he got from a professional landscaper(also a good friend of theirs), and what he would have charged if he had done the work, and the funny thing is, it didnt even add up to $2,500.00**************It was for like $1,980.00. When he went to present the quote to the judge, the judge told him he didnt need to see it, and even asked many times where he came up with 2,500.00, of which he really never answered(to be honest, I think he came up with it to counter the 2,500.00 I was suing him for.

So as you can see, his countersuit was bogus, made no sense, and it was obvious to the judge that his whole purpose was just to try and gouge me. That's why I would question why the judge would even want to listen to anymore from him, and why I asked if he might review notes of the case before bringing us all back to court again, because I have no doubt his notes said this guy was nuts. Even this motion he is filing has now a different amount he is asking for.....now 2000.00.....just makes no sense at all, and a waste of my time if I have to take off work again to go to court for this again.

If the guy pays the filing fee, the court will entertain the motion. It may be a short and not very sweet hearing, but it would be imprudent for you not to be there.

In terms of an opposition, look at the Rule and what the grounds are. Unless 60(B)(2) is satisfied (unlikely), just point out the none of the stautory grounds are met and ask the court to deny. It's probably just going to be waiting to be asked, but it might make the same ruling without any argument.

You shouldn't assume that, because the claimant's argument was idiotic, that the court will treat him like an idiot. He's entitled to his day(s) in court, and it would surprise me if the judge didn't recognize and respect that.

If you were not to show in court , his motion would most likely be granted .

dcatz.....thanks

dcatz.....I really appreciate all the great feedback, and I totally understand he is entitled to his day in court. I also really appreciate you posting the Rule this motion is based on, and will build my response around those details, if I need to respond at all.

This situation was first time in court, and it has been a long process, and a learning experience, and I have posted on this sight many times to get me through the process... and it's great responses like yours that have really helped me understand the legal process, and I appreciate it.

One last question if I may.....does him filing this motion suspend/start-over the 30 day appeal period? So for example, if this motion is denied, does the whole 30 day appeal period for the judgement begin again on the day the motion is denied? I find it interesting that they filed this on the 30th day after the judgement....almost to delay the process as long as possible. I know I cant file a "Proceeding Supplemental" to try and get my money until after the 30 day appeal period has passed.

Thanks again.

does him filing this motion suspend/start-over the 30 day appeal period?

I honestly don’t know. I wouldn't expect any more success if it was allowed. I’m not from Indiana, and I doubt that, if there is someone who is and could chime in, they could do more than guess, but the guess is invited. I can only make an informed guess.

Your neighbor picked the wrong mechanism. He is scrambling up your procedural system (a real frustration with pro pers and pro ses). On the one hand, I don’t expect the court to slam the door on him; on the other, I don’t expect it to have infinite patience, while he uses time and resources. (There is this little concept called “the efficient administration of justice”. Translation: don’t waste our time.)

One way out for the court (and my choice) would be to say that he didn’t appeal within the statutory time and is now foreclosed from trying to do so. Another swift and unpleasant proceeding. But don’t bet money on it and, more importantly, don’t skip any proceedings that do get scheduled because you think they’re ridiculous. The court may think the same and treat them accordingly, but you participate in the process.

Check your Court Rules. You may be able to file an Objection to his motion, stating why it is wrong or unreasonable. You may not even have to go to court, and the court may decide the issue on the written pleadings.
You may only have 10 days to file the Objection. Naturally, if the Court schedules a hearing you must appear.

Usually (my state) a court decision is not final until 30 days after the FINAL decision. Any appeal or request for reconsideration suspends the start of the clock until all issues are settled and a final decision is made.

Reasonable minds can differ and, in this instance, I would disagree with 154NH773.
If I were going to file anything (and I would), it would be a brief Opposition. An Objection to any filing can be overruled. If it were, the court could still deny the Motion but, procedurally, it makes more sense to oppose it on the basis that it’s groundless and lacking in merit than to object to it being heard and having filed no opposition if it is anyway.

Since neither of us is from Indiana, you can flip a coin or just do nothing.

The more I research the rules, and read his Motion to set aside, the more I feel there's a good chance this motion will never even make it to court. It's clear to me that the purpose of Rule 60(B) is to address issues where mistakes may have been made, or new evidence is discovered, etc.....and nothing he has listed in his Motion has anything to do with those things. Here are his exact words in the motion.....

"I (John Doe)feel that the decision was unfair. I (John Doe) feel that I (John Doe) did not make myself clear in court".....and then he just goes on to list all the same evidence he already presented in court, and is basically just asking for another shot at presenting his case. To me, getting a "redo" or "second opinion" of the same evidence, is exactly what the Appeal's process is there for, and the path that should have been taken here.

As for the Appeal process, and the 30 day period in question, here is the only info I found.....

Rule 9. Initiation of the Appeal
A. Filing the Notice of Appeal.
(1) Appeals from Final Judgments. A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court's ruling on such motion, or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first. Copies of the Notice of Appeal, which need not be file stamped by the trial court clerk, shall be served on all parties of record in the trial court, the Clerk, and upon the Attorney General in all Criminal Appeals and any appeals from a final judgment declaring a state statute unconstitutional in whole or in part.

This would seem to indicate that a Motion to Correct Error is the one motion that could effect the 30 day period. The only thing that came into question to me as to whether it has been satisfied yet or not is the words "Final Judgement" which is defined in this same document as....

H. Final Judgment. A judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.

My opinion is that he should have already initiated the Appeals process, and the 30 day period to do so has now passed. The reason I think that is because a Motion to Set Aside is something that can be filed for up to a year.....well beyond the 30 day appeal period.

snipit from American Bar Association article

I came across this explaination on the subject of Rule 60(b) Motion to set aside judgement from an American Bar Association article....

"A few points may be particularly worth emphasizing about American practice on motions for relief from judgments. First, such motions are made after the judgment has become final and are made to the same court that rendered the judgment, not to any appellate court although trial courts' actions on such motions can be subject to appellate review. Second, despite the length of the list of possible grounds for such motions, these motions are disfavored because of the strong value accorded to the idea of finality and are fairly rarely granted in the case of judgments entered after the parties have contested a matter. The courts are somewhat more inclined to reopen judgments entered by default, most commonly because a defendant failed to appear and answer in response to service of process. Because default judgments can impose significant liability without any hearing on the merits of a claim, American courts fairly readily reopen default judgments if it appears that a defendant may have a meritorious defense - although often upon conditions such as payment of any extra expenses incurred by a plaintiff for a defendant's default without good excuse."

So based on his "reason"(he feels he did not make himself clear during trial) for filing the motion, I would say the odds of a retrial would be pretty slim.

In regard to dcatz; in my state there is no "brief Opposition" and an objection is essentially what you describe.

Any, and almost all, motions may be objected to. The grounds EbayBob mentioned, such as redundant claims and no new grounds, are probably all he would have to put in the Objection. Remember, the court will decide on the motion, regardless what it is called, and your input may be important for the court to make its decision. If you are convincing in your objection, there is a very good chance the Court will decide without an additional hearing.

I was told by a judge in court that his function is that of referee, and therefore the parties must bring every issue to him. Don't think that because your opponent's motion is without merit, that the court will see it the same way. You should preserve all your objections by filing them in an Objection (or whatever the IN equivalent is).

A court's decision on the merits usually doesn't become final until the appeal period is over. That means that any appeal or timely motion to the court can extend the final decision once again.

A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

EBaybob,

the answer lies in Rule 60(B). The rule itself says that a motion does not affect the finality of the judgment.

Thus, the judgment itself became final in the normal course and execution can start.
In fact, Rule 60(B)(2) is, by definition, a procedure to obtain relief from a decision that is otherwise final, and it is designed to allow reconsideration (on very limited grounds) of matters that can not be appealed. Put another way, a Rule 60(B) motion is in addition to the right to an appeal, and requires the showing of a meritorous defense.

While it is difficult to summarize in a short post, the case law is that a Rule 60(B) motion can not be used in place of an appeal. Thus, if the defendant should have appealed because he thinks the trial court committed some error that would support an appeal, he needed to do so within the appeal period (e.g., 30 days). If his real complaint is something that was the grounds for an appeal, he had to appeal. Since he has let the time elapse, he can not appeal at this point.

He can only use Rule 60(B) for the limited reasons set forth in the rule.

You should file a response to the Rule 60(B) motion, pointing out that defendant has (a) no meritorous defense and (b) that defendant has not established the limited grounds available under Rule 60.

The Court will rule on the motion directly, or will simply let the time elapse in which case it is deemed denied. Note, however, that defendant gets to appeal the decision on the Rule 60 motion! (But his appeal is limited to the Rule 60(B) motion only).

If it were me, I'd begin to execute on the judgment now.