Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Richard N. Bell

Indianapolis, Indiana

Maura K. Kennedy

Law Office of Maura K. Kennedy, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Paul B. Overhauser

Melanie Eich

Overhauser Law Offices, LLC

Greenfield, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Richard N. Bell,

Appellant-Plaintiff,

v.

Vacuforce, LLC,

Appellee-Defendant.

May 26, 2020

Court of Appeals Case No.

19A-PL-2008

Appeal from the Marion Superior 

Court

The Honorable Timothy W. 

Oakes, Judge

The Honorable Caryl F. Dill, 

Magistrate

Trial Court Cause No.

49D02-1903-PL-8733

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 2 of 7

Statement of the Case

[1] Richard Bell appeals the trial court’s denial of his motion to set aside the court’s

dismissal of Bell’s complaint against Vacuforce, LLC for failure to state a claim 

upon which relief can be granted. Bell presents two issues for our review:

1. Whether the trial court abused its discretion when it 

denied Bell’s motion to set aside the dismissal of his 

complaint.

2. Whether the trial court abused its discretion when it 

ordered Bell to pay Vacuforce’s attorney’s fees.

[2] Vacuforce cross-appeals and asserts that it is entitled to appellate attorney’s fees. 

We affirm and remand with instructions.

Facts and Procedural History

[3] In an appeal of the underlying federal lawsuit in this matter, the United States 

Court of Appeals for the Seventh Circuit set out the relevant facts as follows:

Richard Bell brought a copyright infringement lawsuit against 

Vacuforce, LLC, accusing it of publishing his photograph of the 

Indianapolis skyline on its website without a license. Vacuforce 

hired attorney Paul Overhauser to defend it. The parties quickly 

settled, so the federal lawsuit was dismissed with prejudice.

That was not the end of the story. Overhauser then moved to 

recover attorney fees from plaintiff Bell. He argued that since the 

settlement produced a dismissal with prejudice, Vacuforce was 

the “prevailing party” for purposes of fees under the Copyright 

Act, 17 U.S.C. § 505. The district court considered Overhauser’s 

motion frivolous and misleading. The court denied the motion 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2008 | May 26, 2020 Page 3 of 7

and ordered two monetary sanctions against Overhauser: one 

under Federal Rule of Civil Procedure 11 and another under 28 

U.S.C. § 1927[ to recover Bell’s attorney’s fees incurred in 

responding to Overhauser’s motion].

Bell v. Vacuforce, LLC, 908 F.3d 1075, 1077 (7th Cir. 2018).

[4] On March 4, 2019, Bell filed a complaint with the Marion Superior Court 

alleging that, when it sought attorney’s fees in the federal court proceeding, 

Vacuforce breached the terms of the parties’ settlement agreement. The trial 

court granted extensions of time to Vacuforce to respond to the complaint. And 

on June 21, Vacuforce filed a motion to dismiss under Trial Rule 12(B)(6). In 

particular, Vacuforce alleged that Bell had not stated a claim for a breach of 

contract. On July 25, the court granted Vacuforce’s motion to dismiss Bell’s 

complaint with prejudice.

[5] On July 28, Bell filed a motion to set aside the dismissal alleging that his 

counsel, Maura Kennedy, “did not have knowledge of [either the motion to 

dismiss or] the Court’s order granting dismissal on July 25, 2019, because 

[Kennedy] did not receive electronic service of either of said documents.” 

Appellant’s App. Vol. 2 at 46. In that motion, Bell asserted that Kennedy had 

provided the trial court with her proper contact information on her appearance 

form in this matter but only discovered the dismissal after checking the docket 

four days prior to the dismissal order. Bell did not assert a meritorious claim in 

his motion to set aside the dismissal.
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[6] In its response to Bell’s motion, Vacuforce pointed out that Kennedy had not 

updated her contact information with the Indiana Supreme Court Roll of 

Attorneys as required under Trial Rule 86(O), which had led to Kennedy’s 

failure to receive the electronic notifications. The trial court denied Bell’s 

motion to set aside. And the court awarded attorney’s fees to Vacuforce. This 

appeal ensued.1

Discussion and Decision

Issue One: Motion to Set Aside

[7] Bell first contends that the trial court abused its discretion when it denied his 

motion to set aside the dismissal of his complaint. Bell purports to allege that 

the dismissal should be set aside under Trial Rule 60(B)(1), which provides that 

the court may relieve a party from an entry of a final order for “mistake, 

surprise, or excusable neglect.” We review the grant or denial of a Trial Rule 

60(B) motion for relief from judgment under an abuse of discretion standard. 

Ross v. Bachkurinskiy, 770 N.E.2d 389, 392 (Ind. Ct. App. 2002).

[8] Bell maintains that his attorney was not served a copy of Vacuforce’s motion to 

dismiss because of a “clerical error[,] as the Indiana E-filing System sent notice 

of Vacuforce’s Motion to Dismiss to [Bell’s] Counsel’s wrong email address.” 

1

 Bell also appealed the trial court’s order granting Vacuforce’s motion to dismiss. Vacuforce filed with this 

Court a motion to dismiss Bell’s appeal as untimely. We agreed, in part, and granted that motion in part. In 

particular, in our March 20, 2020, Order, we “dismissed with prejudice” Bell’s appeal of the trial court’s July 

25, 2019, order “because it was not timely initiated.” Accordingly, the sole issues in this appeal relate to the 

court’s order denying Bell’s motion to set aside and granting Vacuforce’s motion for attorney’s fees.
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Appellant’s Br. at 11. Thus, Bell asserts that he is entitled to have the dismissal 

set aside due to mistake or surprise. However, as Vacuforce points out, Trial 

Rule 86(O)(2) expressly provides in relevant part that, in her appearance form, 

Bell’s attorney was required both to certify “that the contact information listed 

on the Indiana Supreme Court Roll of Attorneys . . . [was] current and accurate 

as of the date the appearance [wa]s filed” and to acknowledge “that orders . . . 

will be sent to the attorney at the email address(es) on the Roll of Attorneys 

regardless of other contact information supplied by the attorney.” Vacuforce 

asserts, and Bell does not dispute, that Bell’s attorney had failed to update her 

contact information, including her email address, with the Roll of Attorneys at 

the time she filed her appearance in this matter. Thus, Bell’s attorney’s failure 

to receive either Vacuforce’s motion to dismiss or the court’s order dismissing 

the complaint was not due to any clerical error but, rather, was due to her own 

mistake.

2

[9] As this Court has explained,

Trial Rule 60(B) requires that an allegation of mistake or 

excusable neglect be supported by a showing of a meritorious 

claim. That requires a showing “‘that vacating the judgment will 

not be an empty exercise.’” Outback Steakhouse of Florida v. 

Markley, 856 N.E.2d 65, 73 (Ind. 2006) (quoting 12 Moore’s 

2

 In support of his contention that the trial court should set aside the dismissal due to the trial court’s

“clerical error,” Bell cites to case law addressing Trial Rule 60(A), which permits a trial court to correct 

technical clerical errors in judgments or orders. However, Trial Rule 41(F) makes clear that where, as here, a 

complaint is dismissed with prejudice, the dismissal may be set aside “in accordance with the provisions of 

[Trial] Rule 60(B).” Accordingly, to the extent that Bell asserts that the court should set aside the dismissal 

based upon Trial Rule 60(A) alone, that claim is without merit.
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Federal Practice, § 60.43[1][c] (3d ed.1997)). 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. (quoting Smith v. Johnston, 711 N.E.2d 

1259, 1265 (Ind. 1999)).

Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d 611, 613 (Ind. Ct. App. 2007)

(emphasis added).

[10] Here, in his motion to set aside, Bell asserted that his counsel had “just 

discovered the E-service mistake” and that she had been “surprise[d]” to discover 

the dismissal when she checked the docket in late July. Appellant’s App. Vol. 2 

at 45-46 (emphasis added). On appeal, Bell states that he moved to set aside the 

dismissal under Trial Rule 60(B)(1). However, Bell did not assert a meritorious 

claim in his motion to set aside to the trial court, let alone make a prima facie 

showing of a meritorious claim. Munster Cmty. Hosp., 874 N.E.2d at 613. To 

the extent Bell asserts for the first time on appeal that he has a meritorious 

claim, the issue is waived. Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) 

(holding that, to properly preserve an issue on appeal, “a party must, at a 

minimum, ‘show that it gave the trial court a bona fide opportunity to pass 

upon the merits of the claim before seeking an opinion on appeal.’”) Bell 

cannot show that the trial court abused its discretion when it denied his motion 

to set aside the dismissal under Trial Rule 60(B)(1).

3

3

 We note that Bell makes no contention that the trial court’s dismissal order is void.
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Issue Two: Attorney’s Fees

[11] Bell next contends, without any citation to the record or to authority, and 

without any reference to our standard of review, that the trial court “should 

reverse the judgment” due to the same “‘clerical error’ described in the Motion 

to Dismiss.” Appellant’s Br. at 12. Again, Bell has not shown that a clerical 

error occurred. Indeed, Bell does not dispute that the problem arose because 

Bell’s attorney had not updated her contact information pursuant to Trial Rule 

86(O). And, in any event, Bell does not support his contention on this issue 

with cogent argument, and it is waived. We therefore affirm the trial court’s 

award of attorney’s fees to Vacuforce.

Cross-Appeal

[12] Vacuforce cross-appeals and contends that it is entitled to appellate attorney’s 

fees under the terms of the parties’ settlement agreement. Bell does not contest 

Vacuforce’s contention on this issue. As Vacuforce points out, the parties’ 

agreement provides in relevant part that, in any action seeking relief from an 

alleged breach of the agreement, “the prevailing party shall recover all of such 

party’s reasonable attorney’s fees” incurred, including appellate attorney’s fees. 

Appellant’s App. Vol. 2 at 78. We hold that Vacuforce is entitled to appellate 

attorney’s fees under the parties’ agreement, and we remand to the trial court 

for a determination of the appropriate award.

[13] Affirmed and remanded with instructions.

Kirsch, J., and Brown, J., concur.