Court of Appeals of Indiana | Opinion 45A05-1612-CT-2853 | May 30, 3017 Page 1 of 10

ATTORNEYS FOR APPELLANTS

Larry L. Barnard

Eric M. Blume

Carson Boxberger LLP

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Adam J. Sedia

Rubino, Ruman, Crosmer & Polen

Dyer, Indiana

IN THE

COURT OF APPEALS OF INDIANA

McKinley, Inc. a/k/a McKinley 

Associates, Inc. d/b/a Summer 

Wood Apartment Homes,

Appellant-Defendant,

v.

Michelle Skyllas,

Appellee-Plaintiff.

May 30, 2017

Court of Appeals Case No.

45A05-1612-CT-2853

Appeal from the Lake Superior 

Court.

The Honorable Bruce D. Parent, 

Judge.

Trial Court Cause No. 45D04-1101-

CT-12

Sharpnack, Senior Judge

Statement of the Case

[1] McKinley, Inc., appeals the trial court’s grant of Michelle Skyllas’ motion to 

correct error, which set aside the trial court’s prior grant of summary judgment 

to McKinley. McKinley also appeals the trial court’s grant of Skyllas’ motion 
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to withdraw and amend admissions. We reverse and remand with 

instructions.

1

Issue

[2] McKinley raises three issues, which we consolidate and restate as: Whether the 

trial court erred by granting Skyllas’ motions.

Facts and Procedural History

[3] Skyllas hired her second cousin, attorney Samuel Vazanellis, to sue McKinley. 

Skyllas filed suit on January 12, 2011, claiming she was injured on January 25, 

2009, in a slip and fall on McKinley’s property. She alleged McKinley 

negligently failed to remove snow and ice. McKinley filed a third-party 

complaint against Snow Pros, Inc., claiming Snow Pros was responsible for 

removing snow and ice on its property.

[4] Skyllas concedes that Vazanellis was uncommunicative from the beginning of 

their attorney-client relationship, and that she had to approach him at family 

gatherings to obtain information about her case. Meanwhile, he failed to 

litigate her case. In 2015, McKinley filed two motions to dismiss Skyllas’ 

complaint due to inactivity, pursuant to Trial Rule 41(E). The court denied the 

motions.

 

1 We heard oral argument in Indianapolis, Indiana on May 4, 2017. We thank the parties for their written 

and oral presentations.
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[5] On May 12, 2016, the court set discovery deadlines. On May 13, 2016, 

McKinley served a request for admissions on Skyllas through Vazanellis. The 

request for admissions included potentially dispositive admissions, such as 

“Skyllas has no evidence that McKinley was negligent in any way” and 

“Skyllas did not suffer any injuries or damages as a result of the incident.” 

Appellants’ App. p. 47. Skyllas’ response to the request for admissions was due 

within thirty days. Meanwhile, Snow Pros served interrogatories on Skyllas 

through Vazanellis.

[6] Vazanellis continued to avoid communicating with Skyllas. From April 

through August 2016, Skyllas called his office a total of fifteen to twenty times 

and called his personal number weekly, and he never responded. Vazanellis 

also ignored her biweekly texts. In late May or early June 2016, Skyllas met 

with Vazanellis’ wife at his office to prepare answers to Snow Pros’ 

interrogatories. Vazanellis talked with Skyllas but did not mention the request 

for admissions. He told her that “he had filed everything that needed to be 

filed,” and everything was “under control.” Id. at 65.

[7] On June 27, 2016, the trial court set a deadline for dispositive motions. 

McKinley timely filed a motion for summary judgment against Skyllas, 

attaching Skyllas’ admissions. She did not respond within the thirty-day 

deadline, and on August 22, 2016, McKinley filed a request for a summary

ruling.
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[8] On August 25, 2016, the Indiana Supreme Court indefinitely suspended 

Vazanellis from the practice of law for failure to cooperate with an 

investigation. On August 30, 2016, the court granted McKinley’s motion for 

summary judgment. Meanwhile, Vazanellis had spent the month of August on 

vacation in Greece. Skyllas learned of his vacation through her daughter, who 

had also vacationed in Greece for part of August and had encountered him.

[9] At some point in late August or early September 2016, Skyllas learned through 

her other daughter, a law student, that the Indiana Supreme Court had 

suspended Vazanellis’ license and that McKinley had prevailed on summary 

judgment. She hired a new attorney.

[10] On October 3, 2016, Skyllas, through her new counsel, filed a motion to correct 

error pursuant to Trial Rule 59 and a motion to withdraw and amend 

admissions. McKinley filed responses in opposition to the motions, and Skyllas 

filed replies in support of her motions. On November 22, 2016, the court 

granted both of Skyllas’ motions, concluding that Vazanellis was “extremely 

negligent” and effectively obliterated the attorney-client relationship. Id. at 24. 

The court further concluded withdrawal of the admissions was appropriate. 

Thus, the court vacated the grant of summary judgment and granted Skyllas 

additional time to amend her admissions. This appeal followed.

Discussion and Decision

[11] McKinley argues the trial court should not have granted Skyllas’ motion to 

correct error and motion to withdraw admissions because she was not entitled 
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to relief through those procedures. Skyllas responds that the trial court did not 

err because Vazanellis’ conduct effectively obliterated the attorney-client 

relationship and she was not responsible for his actions or inactions.

[12] In general, we review a trial court’s ruling on a motion to correct error for an 

abuse of discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). 

Similarly, the grant or denial of a motion to withdraw admissions is generally 

reviewable for an abuse of discretion. Gen. Motors Corp. v. Aetna Cas. & Sur. Co., 

573 N.E.2d 885, 889 (Ind. 1991). In this case, McKinley did not challenge any 

statements of fact in Skyllas’ motions and does not dispute any facts on appeal. 

We are thus asked to decide a question of law, and we review such questions de 

novo with no deference to the trial court’s determination. Zoeller v. Sweeney, 19 

N.E.3d 749, 751 (Ind. 2014).

[13] In her motion to correct error, Skyllas raised no error in the process that 

resulted in summary judgment against her, but rather claimed that the court had 

erred in attributing “Vazanellis’s conduct . . . to Plaintiff.” Appellant’s App. p. 

63. We cannot conclude that the trial court’s grant of summary judgment to 

McKinley was erroneous for purposes of Indiana Trial Rule 59. McKinley’s

motion for summary judgment included dispositive admissions from Skyllas 

due to her failure to respond. In addition, Skyllas did not respond to the 

motion for summary judgment. It is plain to see that the court had no choice 

but to grant the motion. Skyllas did not argue to the trial court or in this appeal 

that her discovery of Vazanellis’ inaction was based on newly-discovered 

evidence.
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[14] Similarly, Skyllas’ motion to withdraw admissions was procedurally 

inappropriate. It was filed after judgment had been entered, and the trial court 

lacked authority to rule on it. See Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 

(Ind. Ct. App. 1998) (“After a final judgment has been entered, the issuing 

court retains such continuing jurisdiction as is permitted by the judgment itself, 

or as is given the court by statute or rule.”) The motion was essentially 

combined with the motion to correct error, and a party may not raise an issue 

for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 

752 (Ind. 2000).

[15] We prefer to address issues on their merits where possible. Kelly v. Levandoski, 

825 N.E.2d 850, 856 (Ind. Ct. App. 2005), trans. denied. In this case, the trial 

court essentially granted relief from judgment by determining that the failure to 

respond to the request for admissions, which provided the basis for the grant of 

summary judgment, was the fault of Vazanellis and not attributable to Skyllas. 

Therefore, the admissions would be withdrawn and the summary judgment 

vacated. In effect, the court granted the type of relief that is available under 

Indiana Trial Rule 60(B)(1), and we will review the trial court’s decision in that 

light.

[16] According to Indiana Trial Rule 60(B)(1), a court may relieve a party from a

judgment, including judgment by default, for “mistake, surprise, or excusable 

neglect.” The movant must allege a meritorious claim or defense. Id. Our 

standard of review remains de novo because we are presented with questions of 

law.
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[17] Skyllas relies on Rose v. Rose, 181 Ind. App. 98, 390 N.E.2d 1056 (Ind. Ct. App. 

1979), to support the result reached by the trial court. In that case, Donald 

Rose was named as a respondent in a petition for dissolution of marriage filed 

in Indiana. Rose moved to Kentucky and hired a Kentucky-based attorney. 

The Kentucky attorney promised to hire local counsel in Indiana. Rose met 

with the Kentucky attorney “four or five times” and was promised each time 

that local counsel had been hired. 390 N.E.2d at 1057. The Kentucky attorney 

had contacted an Indiana attorney, who ultimately declined to file an 

appearance on behalf of Rose after the Kentucky attorney “continually failed to 

respond” to letters and phone calls. Id. Despite choosing not to enter an 

appearance, the Indiana attorney succeeded in obtaining a continuance of the 

evidentiary hearing, and notice of the continuance was sent to the Kentucky 

attorney. The Kentucky attorney did not inform Rose, and neither Rose nor 

the attorney appeared at the rescheduled evidentiary hearing. As a result, the 

trial court entered judgment against Rose and awarded a “substantial share of 

the marital estate” to his wife. Id.

[18] A month later, Rose met with the Kentucky attorney, who told him that the 

trial court had not yet ruled on the case. The attorney then gave the case file to 

Rose and sent him to a different Indiana attorney. Rose eventually learned of 

the judgment and, through new counsel, filed a motion for relief from 

judgment. The trial court denied the motion.

[19] On appeal, a panel of this Court reversed. The Court acknowledged that Rose 

bore a heavy burden in seeking relief because “the negligence of the attorney is 
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generally imputed to the client.” Id. at 1058. In reversing, the Court 

characterized the Kentucky attorney’s conduct as “unexplainable and 

inexcusable misfeasance and nonfeasance” while, in contrast, Rose was 

“conscientious and diligent.” Id. The Court, citing a California case, 

determined that where the attorney’s neglect amounts to positive misconduct, 

the attorney-client relationship is obliterated and negligence should not be 

attributed to the client. Finally, the Court stated Rose had alleged a valid 

defense by alleging his wife had squandered marital assets for personal use.

[20] The facts of Rose are quite different from the facts of this case. The Kentucky 

attorney repeatedly lied to Rose, stating that an Indiana attorney had been hired 

to represent him. Rose had no reason to believe the attorney was neglecting his 

case. By contrast, in this case Vazanellis failed to communicate with Skyllas 

from the beginning, and he repeatedly ignored her phone calls and emails 

during the summer of 2016. She was forced to approach him at family 

gatherings to get information about her case.

[21] Skyllas points out that Vazanellis told her in late May or early June 2016 “he 

had filed everything that needed to be filed,” and everything was “under 

control.” Appellants’ App. at 65. Those statements were not necessarily 

untrue. The deadline to respond to the request for admissions was set to expire 

on June 13, 2016, so Skyllas’ response was not yet late when she and Vazanellis

met.
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[22] In addition, the result in Rose stands in contrast to the many Indiana cases 

which do not relieve the client from the consequences of the attorney’s action or 

inaction. In Ferrara v. Genduso, 214 Ind. 99, 14 N.E.2d 580 (Ind. 1938), the 

Indiana Supreme Court affirmed the denial of a motion to vacate judgment. In 

that case, the defendants hired attorneys to represent them in a foreclosure 

action. The attorneys filed a general answer but did not appear in court on the 

day of trial and agreed with opposing counsel that judgment should be entered

against the defendants. The defendants later hired new counsel, who 

unsuccessfully sought to vacate the judgment. On appeal, the Indiana Supreme

Court concluded the actions and omissions of the attorney were attributable to 

the client, and the defendants were not entitled to have the judgment vacated

regardless of counsel’s inaction.

[23] The principle discussed in Ferrara has been applied in numerous Indiana cases. 

See Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 867 (Ind. Ct. App. 2011) 

(affirming denial of two motions for relief from judgment and noting even gross 

negligence by attorney was insufficient to establish grounds for relief), trans. 

denied; Thompson v. Thompson, 811 N.E.2d 888, 904 (Ind. Ct. App. 2004) 

(affirming denial of motion for relief from judgment; Court concluded 

attorney’s negligence was binding on client), trans. denied; Kmart Corp. v. 

Englebright, 719 N.E.2d 1249, 1256 (Ind. Ct. App. 1999) (reversing denial of 

Rule 60(B) motion where opposing counsel had informed defendant there was 

no need to file answer while settlement discussions were ongoing and later 

obtained default judgment for failure to file answer), trans. denied; Int’l Vacuum, 
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Inc. v. Owens, 439 N.E.2d 188, 190 (Ind. Ct. App. 1982) (affirming denial of 

motion to set aside default judgment; appellant failed to demonstrate it had 

exercised due diligence in keeping informed about the case). We conclude that

Rose is factually unique and does not support a departure from the weight of 

Indiana authority in this case.

[24] Based upon our review of governing caselaw as applied to the undisputed facts 

of this case, Vazanellis’ misconduct, while deplorable, was attributable to his 

client for purposes of Trial Rule 60(B). We cannot conclude that Skyllas 

established she was entitled to relief from judgment with respect to the grant of 

summary judgment or the admissions.

Conclusion

[25] For the reasons stated above, we reverse the judgment of the trial court and 

remand with instructions to reinstate the judgment in favor of McKinley and 

against Skyllas.

[26] Reversed and remanded with instructions.

May, J., and Brown, J., concur.