First Nat. Bank & Trust Co. of Crawfordsville v. Coling

• Court: Indiana Appellate Court
• Writing for the Court: RATLIFF; In Grecco, supra; NEAL, P.J., and ROBERTSON
• Citation: First Nat. Bank & Trust Co. of Crawfordsville v. Coling, 419 N.E.2d 1326 (Ind. App. 1981)
• Decision Date: 11 May 1981
• Docket Number: No. 1-1080A274,1-1080A274
• Parties: FIRST NATIONAL BANK & TRUST COMPANY OF CRAWFORDSVILLE, as Executor of the Estate of Leota R. Parker, David A. Stephens and Beverly J. Stephens, Defendants-Appellants, v. Forrest COLING, Jr., Wayne Coling, Phyllis Arline Erlick, Mary Jo Rick, Patricia Trice and Shirley Kiser, Plaintiffs-Appellees.

Page 1326

419 N.E.2d 1326

FIRST NATIONAL BANK & TRUST COMPANY OF CRAWFORDSVILLE, as Executor of the Estate of Leota R. Parker, David A. Stephens and Beverly J. Stephens Defendants-Appellants, v. Forrest COLING, Jr., Wayne Coling, Phyllis Arline Erlick Mary Jo Rick, Patricia Trice and Shirley Kiser Plaintiffs-Appellees.

No. 1-1080A274.

Court of Appeals of Indiana, First District.

May 11, 1981.

James R. Earnshaw, Harding & Henthorn, Crawfordsville, for defendants-appellants.

Edward L. Kennedy, Moore, Sandy, Moore & Deets, Lafayette, for plaintiffs-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

The First National Bank & Trust Company of Crawfordsville, as Executor of the Estate of Leota R. Parker ("Bank"), David A. Stephens, and Beverly J. Stephens, appeal from a judgment of the Montgomery Circuit Court granting the motion for relief from judgment under Ind. Rules of Procedure, Trial Rule 60(B), filed by Forrest Coling, Jr., Wayne Coling, Phyllis Arline Erlick, Mary Jo Rick, Patricia Trice, and Shirley Kiser. We affirm.

STATEMENT OF THE FACTS

Leota R. Parker died on October 20, 1978. An instrument purporting to be her will was probated on October 26, 1978, and Bank was appointed as executor of her estate. On March 23, 1979, Forrest Coling, Jr., Wayne Coling, Phyllis Arline Erlick, Mary Jo Rick, Patricia Trice, and Shirley Kiser, ("Plaintiffs") as the only heirs at law of the decedent, filed an action to contest decedent's will which was duly filed and docketed as Cause No. C-79-130. ¹ On the same date, ² the same persons as the plaintiffs in the will contest action filed with the Clerk of the Montgomery Circuit Court, another pleading designated "Claim" which pleading purported to be a claim against the estate. ³ The Clerk did not enter the claim upon the claim and allowance docket in the estate. (See Ind. Code 29-1-14-2 and 29-1-14-10). Instead, the clerk entered the same cause number (C-79-130) as the will contest action on the "claim," and filed the "claim" with the papers and pleadings in the will contest action.

On April 10, 1979, the Bank, as executor, filed a motion to dismiss the claim asserting that it was not filed within five months of the date of the first published notice to creditors as required by Ind. Code 29-1-14-1, but rather, was brought by complaint and summons as proscribed by Ind. Code 29-1-14-2, and was, therefore, barred. The trial court sustained the motion and dismissed the claim on October 1, 1979. Thereafter, on November 30, 1979, the plaintiffs filed a motion to correct errors. ⁴ The court overruled the motion to correct errors on the same day it was filed. No notice of this rule was given to counsel for either side.

On July 1, 1980, the plaintiffs filed their motion for relief from judgment under T.R. 60(B)(1) asserting mistake, surprise, and excusable neglect, and requesting the court to set aside its order overruling their motion to correct errors. Specifically, the T.R. 60(B)(1) motion stated that no notice of the ruling on the motion to correct errors was ever received; that counsel for plaintiffs and counsel for the estate had agreed upon oral argument on the motion to correct errors; that since no notice was given of the denial of the motion to correct errors, plaintiffs were deprived of their right to file a timely praecipe for appeal; and that subsequent to the expiration of the time to file a praecipe, counsel had reaffirmed their agreement to have the motion to correct errors set for oral argument at the earliest possible time. The motion for relief from judgment was supported by the affidavit of opposing counsel confirming that both attorneys were awaiting a date to be set by the court for argument on the motion to correct errors, and that neither received notice of the ruling thereon, and further confirming the allegations of the motion.

The trial court, on July 10, 1980, granted the motion for relief from judgment, finding:

"Petitioner having heretofore filed Motion for Relief from Judgment on July 1, 1980, which reads as follows: (H.I.), and the court being duly advised, now finds that in this cause a complaint to contest will has been filed on March 23, 1979, and on the same day in this cause was filed a pleading entitled claim, evidently prepared to be filed in an estate. The court finds further that the complaint to contest will was timely filed and that the claim itself would have been timely filed had it been filed properly in the office of the Clerk of the Montgomery Circuit Court. The Court finds that the erroneous filing of the claim constitutes excusable neglect on the part of the plaintiff's attorney, and that the Clerk of the Montgomery Circuit Court did not give notice to the attorneys for the parties of the ruling on the Motion to Correct Errors made November 30, 1979. The Court further finds that any failure of the attorneys to learn of the ruling of the Motion to Correct Errors under such circumstances was excusable neglect on the basis of the Affidavits filed with the Motion for Relief. Therefore, the Court finds that its denial of the Motion to Correct Errors on November 30, 1979, should be vacated and set aside; that Order to dismiss of October 1, 1979 should be vacated and set aside and the claim heretofore filed as part of the Civil Cause should be transferred by the Clerk to the Estate claim docket and should be treated for all purposes hereafter as if filed March 23, 1979, as a claim against the Estate of Leota R. Parker, being Cause No. E78-101 in the Montgomery Circuit Court that it should be treated as a denied claim and put on the trial docket."

The court then entered judgment on its findings. It is from this judgment the appeal is taken.

ISSUES

The sole issue presented for our decision is whether it was error for the trial court, after having overruled the plaintiffs' motion to correct errors, to grant plaintiffs' T.R. 60(B)(1) motion for relief from judgment, and to enter the judgment finding the claim to have been timely filed.

DISCUSSION AND DECISION

The Bank contends that lack of notice of the ruling on the motion to correct errors did not, under Ind. Rules of Procedure, Trial Rule 72(D), affect plaintiffs' time to appeal. That rule requires the clerk to serve a notice of the entry of a ruling on a motion on each party immediately upon entry of the ruling, and further provides:

"Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in the Appellate Rules...."

On its face, the quoted portion of T.R. 72(D) would appear to support the Bank's contention that lack of notice of the ruling was not excusable neglect, and that the trial court's ruling was erroneous. Examination of pertinent cases, however, compels a contrary conclusion.

In Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d 849, a motion to correct errors addressed to the granting of summary judgment for the plaintiff was overruled on May 26, 1971. On August 13, 1971, the trial court reentered its order of May 26, 1971, in these words: "By agreement, the order over-ruling (sic) the Motion to Correct Errors is now re-entered as of July 1, 1971." No reason or explanation was given for that entry. The record on appeal was not filed within ninety days of the May 26 date, but was filed within ninety days of the July 1 date. This court dismissed the appeal, Judge Buchanan, writing for the court, stating: "It is our opinion that this appeal must be dismissed because the trial court did not have power subsequent to overruling the Motion to Correct Errors to change the date of this action to a later date without good cause." (Emphasis added.) 151 Ind.App. at 382-383. The opinion in Wadkins further stated that T.R. 60 set forth the "good causes" which warrant relief from judgment, and opined that a ruling on a motion to correct errors is a judgment within the framework of T.R. 60.

In Soft Water Utilities, Inc. v. Le Fevre, (1973) 261 Ind. 260, 301 N.E.2d 745, judgment was entered against Soft Water on May 3, 1972. Soft Water filed its motion to correct errors on June 30, 1972. Soft Water's attorneys then contacted the clerk to determine if any ruling had been entered and were advised by telephone on July 10, 1972, that the motion to correct errors had not been received. Soft Water forwarded two more copies of the motion on July 13 and on August 12, wrote the trial judge who informed Soft Water that its motion to correct errors had been overruled on July 10, 1972, the very day the clerk had advised that the motion had not been received. The time to file a praecipe had thus expired. On August 23, 1972, Soft Water filed a motion for relief from judgment under T.R. 60(B). The trial judge granted the motion and changed the date of the overruling of the motion to correct errors to August 14, 1972. Our supreme court held that under the circumstances of this case, the trial court did not abuse its discretion in changing the date of the ruling on its motion to correct errors. Thus, while lack of notice alone may not automatically require reopening of the judgment, a lack of notice coupled with misinformation from a court official, presented sufficient good cause for the granting of equitable relief. Soft Water Utilities, supra.

In Auto-Teria, Inc. v. Ahern, (1976) 170 Ind.App. 84, 352 N.E.2d 774, trans. den. (1977), counsel filed a motion to correct errors on June 4, 1973, the last day to file the same. He personally applied the court file stamp. Since it was near the close of the business day, pursuant to customary practice, the room clerk had advanced the file stamp to the next day. Consequently, the file stamp bore the date of June 5. This court, relying upon Soft Water Utilities concluded that relief under T.R. 60(A) to correct clerical errors was proper and that the trial court should have corrected its record in...