Court of Appeals of Indiana | Memorandum Decision 18A05-1510-PL-1837 | April 12, 2016 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Gregory B. Smith

Smith Law Office, P.C.

Muncie, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Smith Law Office, P.C.,

Appellant-Plaintiff,

v.

Lawrence J. Cevelo and Carol L. 

Cevelo,

Appellees-Defendants.

April 12, 2016

Court of Appeals Case No.

18A05-1510-PL-1837

Appeal from the Delaware Circuit 

Court

The Honorable John M. Feick, 

Judge

Trial Court Cause No.

18C04-1402-PL-8

Robb, Judge.
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Case Summary and Issues

[1] Smith Law Office, P.C., (“Smith Law Office”) appeals the trial court’s order 

denying its Amended Motion to Set Side Agreed Entry. On appeal, Smith Law 

Office raises three issues for our review, which we consolidate and restate as (1)

whether the trial court committed reversible error when it received two letters 

from an opposing party and did not provide Smith Law Office notice of, and an 

opportunity to contest, the two letters, and (2) whether the trial court erred in 

denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry. 

Concluding there is no evidence in the record demonstrating the trial judge’s 

impartiality was compromised as a result of the communications, and the trial 

court did not abuse its discretion in denying Smith Law Office’s Amended

Motion to Set Aside Agreed Entry, we affirm.

Facts and Procedural History

[2] In 2010, Lawrence and Carol Cevelo employed Smith Law Office to provide 

legal services regarding a real estate matter. After the case went to trial, the 

Cevelos stopped making payments on the total balance due for the legal services 

rendered. On February 14, 2014, Smith Law Office sued the Cevelos, alleging 

the Cevelos committed fraud and owed Smith Law Office “the sum of 

$12,977.10, plus interest at the statutory rate from December 31, 2013 . . . .” 

Appellant’s Appendix at 20. The Cevelos proceeded pro se. On April 28, 2014, 

the trial court entered its Order Granting Summary Judgment in favor of Smith 

Law Office and awarded Smith Law Office $13,507.74, together with interest 
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from December 31, 2013, at the statutory rate, and court costs of $151.00. 

Thereafter, Smith Law Office filed a Motion for Proceedings Supplemental, and 

the trial court scheduled a hearing. 

[3] In January 2015, the parties convened before a Master Commissioner to be 

heard on Smith Law Office’s Motion for Proceedings Supplemental. At the 

hearing, Lawrence explained Social Security was the Cevelos’ only source of 

income, and as a result, they had no means of paying Smith Law Office the full 

judgment, stating, “Our fixed expenses on a monthly basis far exceed our 

income, and we’ve been depending on my son and credit cards to keep a float

[sic] up to this point.” Transcript at 25. Thereafter, the Master Commissioner

asked Smith Law Office whether it would accept “$100.00 payments if [the 

Cevelos] were willing to make consistent $100.00 payments on a monthly 

basis” until the Cevelos’ income situation changed in a way that would allow 

them to pay the judgment off in full. Id. at 28. Smith Law Office responded 

affirmatively, stating, “[A]nything would work.” Id. at 28-29. The Cevelos also 

agreed. The Master Commissioner then explained it could “put an agreed entry 

in that [the Cevelos] would make $100.00 payments consistently on a monthly 

basis, and if, then that doesn’t work out, we can come back, or you can file, you 

know, a motion for writ of execution for the court’s consideration.” Id. at 30. 

Again, Smith Law Office stated it would agree to those terms if the payments 

started “immediately.” Id. On January 22, 2015, the trial court issued its 

Agreed Entry on Proceedings Supplemental, stating in relevant part, “The 
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[Cevelos] agree[] to pay $100 each month toward the judgment beginning in 

January 2015.” Appellant’s App. at 24.

[4] In early June 2015, Smith Law Office filed a Motion to Set Aside Agreed Entry, 

which the trial court denied on June 3.

1 On June 12, 2015, the trial court 

received a letter from the Cevelos. In the letter, the Cevelos argued the court 

should not set aside the Agreed Entry. On September 1, 2015, Smith Law 

Office filed an Amended Motion to Set Aside Agreed Entry, and the trial court 

scheduled a hearing on the matter for October 16, 2015. On September 17, 

2015, the trial court received correspondence from the Cevelos and the trial 

court sent a copy of the correspondence to Smith Law Office. At the hearing, 

Smith Law Office argued the Cevelos failed to make payments pursuant to the 

Agreed Entry. In addition, Smith Law Office claimed the Cevelos retained 

equity in their family home and by setting aside the Agreed Entry, the trial 

court would allow Smith Law Office to “proceed against [the Cevelos’] real 

estate.” Tr. at 42. On October 19, 2015, the trial court denied the motion. 

Two days later, the trial court received at least one letter from the Cevelos.

Smith Law Office now appeals. Additional facts will be added as necessary.

 

1 The record does not contain the Motion to Set Aside the Agreed Entry, nor does it contain any description 

of Smith Law Office’s argument in support of the motion.
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Discussion and Decision2

I. Ex Parte Communications

[5] Smith Law Office argues the two letters authored by the Cevelos and sent only 

to the trial court constituted improper ex parte communications that deprived

Smith Law Office of a fair proceeding. “A communication is ex parte if made 

by a party outside the record without giving other parties notice or an 

opportunity to contest.” Stillwell v. Deer Park Mgmt., 873 N.E.2d 647, 652 (Ind. 

Ct. App. 2007) (emphasis and citation omitted), trans. denied. When there is an 

allegation of ex parte communications, “we assume that judges will disqualify 

themselves if there is any reasonable question concerning their impartiality.” 

Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1301 n.5 (Ind. Ct. 

App. 1997), trans. denied. Therefore, we will refuse to find error when there no 

“evidence or testimony demonstrating that the trial judge’s impartiality was 

compromised as a result of the communication . . . .” Id.

[6] At the outset, we note the record does not include copies of the letters the 

Cevelos sent to the trial court, and most, if not all, of Smith Law Office’s claims 

and assertions are without citation to the record. The Chronological Case 

 

2 We note the Cevelos did not file a brief in this case. When an appellee does not submit a brief, an appellant 

may prevail by making a prima facie case of error. Vill. of Coll. Corner v. Town of W. Coll. Corner, 766 N.E.2d 

742, 745 (Ind. Ct. App. 2002). We define prima facie in this context as “at first sight, on first appearance, or 

on the face of it.” Id. (citation omitted). “Such a rule protects this Court and relieves it from the burden of 

controverting arguments advanced for reversal, a duty that properly remains with the appellee.” Mitchell v. 

Mitchell, 871 N.E.2d 390, 394 (Ind. Ct. App. 2007). 
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Summary (“CCS”) indicates on June 12, 2015—three days after the trial court 

denied Smith Law Office’s Motion to Set Aside Agreed Entry— the trial court 

received a letter “from the [Cevelos] requesting that the Court not set aside the 

agreed entry.” Appellant’s App. at 8. On September 17, 2015, the CCS 

indicates the trial court received “correspondence” from the Cevelos, and a 

copy of the correspondence was sent to Smith Law Office. Id. at 9. On 

October 21, 2015—two days after the trial court denied Smith Law Office’s 

Amended Motion to Set Aside Agreed Entry—the CCS indicates, 

“Correspondence x 2 received from [the Cevelos] . . . . Letters placed in file; 

unread by presiding judge.” Id. at 10.

[7] Based on the CCS, Smith Law Office neither received notice of, nor had an 

opportunity to contest, the June 12 and October 21 letters. However, we note 

the trial court received the June 12 letter, which argued the court should deny 

Smith Law Office’s Motion to Set Aside Agreed Entry, after the trial court had 

already denied that motion. In addition, the trial court received, but did not 

read, the October 21 letter after the trial court had already denied Smith Law 

Office’s Amended Motion to Set Aside Agreed Entry. Because both letters 

were received after the trial court denied the motions, we conclude there is no 

evidence in the record demonstrating the trial judge’s impartiality was 

compromised as a result of the communications. See Morton, 682 N.E.2d at 

1301 n.5.
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II. Agreed Entry

A. Standard of Review

[8] We interpret Smith Law Office’s Amended Motion to Set Aside Agreed Entry 

as a motion for relief pursuant to Indiana Trial Rule 60(B)(8). We review a trial 

court’s ruling on Rule 60(B) motions for an abuse of discretion. Wagler v. West 

Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371 (Ind. Ct. App. 2012), trans. denied, 

cert. denied, 134 S.Ct. 952 (2014). “An abuse of discretion occurs if the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances or if the decision is contrary to law.” Garrett v. Spear, 24 N.E.3d 

472, 473-74 (Ind. Ct. App. 2014). “When reviewing a decision for an abuse of 

discretion, we consider only the evidence and reasonable inferences favorable to 

the judgment.” Lovold v. Ellis, 988 N.E.2d 1144, 1150 (Ind. Ct. App. 2013). We 

neither reweigh the evidence nor judge the credibility of the witnesses. Ramsey 

v. Ramsey, 863 N.E.2d 1232, 1237 (Ind. Ct. App. 2007).

B. Amended Motion to Set Aside Agreed Entry

[9] Smith Law Office contends the trial court abused its discretion in denying its

Amended Motion to Set Aside Agreed Entry. Specifically, it argues the trial 

court should have set aside the Agreed Entry because the Cevelos violated the 

agreement in failing to make payments in January and July of 2015.3 Indiana 

 

3

In its brief, Smith Law Office also argues equity requires an Agreed Entry more favorable to its interests 

because affirming the trial court’s denial would allow the Cevelos “to reap benefits from their wrongdoing by 

avoiding the payment of all of the compensation owed to Smith Law Office, P.C.” Appellant’s Brief at 12. 

Specifically, Smith Law Office contends the Cevelos lied about their assets during the proceedings 
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Trial Rule 60(B)(8) provides a trial court may relieve a party from a judgment 

for “any reason justifying relief from the operation of judgment . . . .” “The trial 

court’s residual powers under subsection (8) may only be invoked upon a 

showing of exceptional circumstances justifying extraordinary relief.” Wagler, 

980 N.E.2d at 372 (citation omitted).

[10] Here, the Agreed Entry, dated January 22, 2015, provided the Cevelos would

“pay $100 each month toward the judgment beginning in January 2015.” 

Appellant’s App. at 24. The record indicates the Cevelos made eight $100.00

payments to the Clerk’s Office on February 2, March 2, April 2, May 1, June 5, 

June 29, August 3, and August 31. However, we are not persuaded these 

alleged “erratic” payments violate the Agreed Entry. Id. at 27. The Agreed 

Entry was dated January 22, 2015. This left the Cevelos, who indicated they 

were in dire financial straits, only six business days to make a payment in 

January. Although the Clerk’s Office did not record receiving a payment in 

January, the first payment was recorded on February 2, which was the seventh 

business day—and the first business day in February—following the issuance of 

the Agreed Entry. As to the July payment, the Cevelos claimed the second 

June payment was intended to cover the July payment. Tr. at 35.

 

supplemental in order to attain a more favorable payment plan. We acknowledge the trial court, in entering 

judgment for Smith Law Office and awarding it damages, found the Cevelos fraudulently induced Smith 

Law Office to represent them in the underlying litigation by concealing their inability to pay. At the 

proceedings supplemental, however, both Lawrence and Carol testified to their inability to pay the full 

judgment given their finances. Therefore, we interpret Smith Law Office’s argument as a request for this 

court to reassess witness credibility, which we will not do. See Ramsey, 863 N.E.2d at 1237.
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[11] Ultimately, and pursuant to the Agreed Entry, the Cevelos were to pay $100.00

per month, which by August 2015 would total $800 in payments; Smith Law 

Office concedes that by the end of August 2015, it received $800.00 from the 

Cevelos. Appellant’s App. at 27. We are not persuaded Smith Law Office has 

shown “exceptional circumstances justifying extraordinary relief.” Wagler, 980 

N.E.2d at 372 (citation omitted). Smith Law Office has suffered no harm, and 

we note it appears Smith Law Office is attempting to use the Cevelos’ alleged 

violations of the Agreed Entry as an excuse to set aside the Agreed Entry

because it no longer finds the terms to which it agreed satisfactory. Based on

the record before us, we conclude the trial court did not abuse its discretion in 

denying Smith Law Office’s Amended Motion to Set Aside Agreed Entry.

Conclusion

[12] We conclude there is no evidence in the record demonstrating the trial judge’s 

impartiality was compromised as a result of the letters it received from the 

Cevelos. In addition, the trial court did not abuse its discretion in denying 

Smith Law Office’s Amended Motion to Set Aside Agreed Entry. Accordingly, 

we affirm.

[13] Affirmed.

Najam, J., and Crone, J., concur.