Fulton v. Van Slyke

• Decision Date: 12 April 1983
• Docket Number: No. 4-1281A196,4-1281A196
• Citation: 447 N.E.2d 628
• Parties: Robert Lee FULTON, Administrator of the Estate of Martin E. Mulkey, Appellant (Defendant Below), v. John D. VAN SLYKE, Administrator of the Estate of Dolphy W. Van Slyke and Virginia Van Slyke, Deceased, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 628

447 N.E.2d 628

Robert Lee FULTON, Administrator of the Estate of Martin E.

Mulkey, Appellant (Defendant Below), v. John D. VAN SLYKE, Administrator of the Estate of Dolphy W.

Van Slyke and Virginia Van Slyke, Deceased,

Appellee (Plaintiff Below).

No. 4-1281A196.

Court of Appeals of Indiana,

Fourth District.

April 12, 1983.

Plummer Tiede Magley Metz & Downs, Alfred H. Plummer, III, Wabash, for appellant.

McCallen, Fisher & Ireland, Alan J. Zimmerman, Wabash, for appellee.

MILLER, Judge.

This is an appeal from a ruling made by the trial court in an estate matter wherein the court granted the motion of a claimant to reinstate his claim against the estate. The claimant, John Van Slyke, acting as the administrator of the Arkansas estate of Dolphy Van Slyke, based his claim against the estate of Martin Mulkey, Robert Fulton, administrator, [Estate] on a lawsuit and We find the trial court did not err in reinstating the claim and affirm.

judgment obtained against Mulkey in Arkansas which lawsuit alleged Mulkey caused the death of Dolphy Van Slyke in an automobile accident. At the time set for hearing on Van Slyke's claim, no counsel appeared for Van Slyke, and the court entered judgment for the Estate. Eventually, however, the claim was reinstated after two Ind.Rules of Procedure, Trial Rule 60(B) motions had been filed by Van Slyke and considered by the court. The Estate now claims the court erred in reinstating the claim for the following reasons: 1) the second T.R. 60(B) motion was repetitious and therefore should have been rejected by the court under the rule set out in Carvey v. Indiana National Bank, (1978) 176 Ind.App. 152, 374 N.E.2d 1173; and 2) the evidence before the court was insufficient to support any ground under T.R. 60(B), and therefore reinstatement was an abuse of discretion.

FACTS

According to the claim filed by Van Slyke, an automobile accident occurred in Arkansas on July 4, 1979 when Mulkey's vehicle was racing on the wrong side of the road and crashed into a truck driven by Dolphy Van Slyke. Mulkey, Dolphy Van Slyke and his wife, Virginia, were killed, and the Van Slyke's 12-year-old daughter was injured. On December 12, 1979, John Van Slyke filed his claim of $504,184 ¹ against the Estate attaching his complaint in the then pending Arkansas tort litigation as the basis for his claim. Only the names of the parties appeared on the face of the claim. However, the names and addresses of Arkansas counsel appeared on the attached complaint. The unpaid claim, having been neither allowed nor disallowed by administrator Fulton, was filed as a civil case with a new cause number on June 9, 1980. ² No further action was taken in the matter until October 14, 1980, when the trial court set the civil cause for a hearing on dismissal (call of the docket) under Ind.Rules of Procedure, Trial Rule 41, with notice directed to be sent to "counsel of record." Local counsel for Van Slyke, attorney Richard Fisher, had not yet filed an appearance under the civil cause number. However, on October 31, 1980, the cause was returned to active status "[o]n motion of administrator" (the court did not disclose which administrator made the motion).

Shortly thereafter, in December, 1980, the matter was set for trial for February 2, 1981, again with "[n]otice ordered to counsel." Van Slyke's local counsel, Richard Fisher, still had not filed his appearance. At trial on February 2, 1981, when no one appeared for Van Slyke to prosecute the claim, the court took the following action: "The defendant-administrator appears by A.H. Plummer. Plaintiffs [sic] fail to appear. Claimants [sic] are called and defaulted. The court now denies plaintiff's claim. Removed from active file." Apparently, attorney Fisher was informed of the court's action and on February 18, 1981, filed an unverified motion to set aside the judgment alleging both he and the Arkansas attorney had searched their files and found no written notice of the February 2nd trial date. In his motion, Fisher reminded the court he had acted promptly earlier in the proceedings when, after receiving information of possible dismissal on October 14, 1980, he caused the matter to Fisher testified under oath at the hearing on the second motion, and gave the following testimony: He filed a request for notice of proceedings under the estate cause number ³ on July 7, 1980 (after the civil cause number was assigned). Both the Arkansas attorneys and Fisher thought that Fisher was protected and would be getting notice. Before Fisher filed the first motion to set aside the judgment, he called the Arkansas counsel's secretary, who assured Fisher that Arkansas counsel had not received notice of the trial. Relying on this information, Fisher mistakenly stated in his first motion that a search of the files revealed no notice had been received by either attorney. In preparing for the first hearing, Fisher asked the Arkansas attorney to execute an affidavit stating he did not receive notice. While Fisher was on vacation, the Arkansas attorney wrote a letter acknowledging he had, in fact, received notice of the February trial date but explaining he had taken no action because he presumed Fisher had also received notice. This correspondence was placed in the case file by Fisher's secretary. At the first hearing on March 20, after giving opening argument and during opposing counsel's argument, Fisher opened the file and viewed for the first time the letter from Arkansas admitting receipt of notice. Because of the contents of that letter, Fisher did nothing further at the hearing but, upon leaving the courtroom, wondered what obligation he had to advise the court that the grounds for his motion were not accurate.

remain on the active docket. This motion to set aside the judgment, which had no supporting affidavits or documents, was denied on March 20, 1981, after a hearing at which Fisher presented no evidence for Van Slyke. On February 26, 1981, Fisher filed his formal appearance under the civil cause number and, on April 14, 1981, filed a second motion to set aside the judgment which motion was verified and supported by affidavit. In this second motion, Fisher alleged excusable neglect.

After hearing the above explanation, the trial court, in fact, made no ruling on the second T.R. 60(B) motion but reconsidered its decision on the first motion and granted it, thereby reinstating the claim. ⁴ The Estate then perfected this appeal.

DECISION

Repetitious T.R. 60(B) Motions

The Estate alleges the trial court erred in reinstating Van Slyke's claim after the hearing on Van Slyke's second T.R. 60(B) motion. It claims, and we think correctly so, that the bases of the reinstatement were the allegations and the evidence given in support of the second T.R. 60(B) motion. We therefore address the issue raised by the Estate of whether such consideration of the second T.R. 60(B) motion was a violation of the rule set out in Carvey v. Indiana National Bank, supra, wherein Judge Lowdermilk stated a general proposition that: "[a] party may not file repeated TR. 60 motions until he finally either offers a meritorious ground for relief or exhausts himself and the trial court in the effort to do so." Id. at 159, 374 N.E.2d at 1177. However, Judge Lowdermilk also indicated this general procedural rule should not be routinely applied, and the trial court retains discretion to allow a second T.R. 60 motion for equitable reasons. The Carvey court did, in fact, reverse the trial court holding it abused its discretion in failing to grant the second T.R. 60 motion.

Very recently, our supreme court in Seibert Oxidermo, Inc. v. Shields, (1983) Ind., 446 N.E.2d 332 (on rehearing, earlier decision withdrawn) addressed the foregoing rule expressed in Carvey. In Seibert the court finally settled the question of the proper procedure to be followed in attempting to set aside the default judgment entered pursuant to Ind.Rules of Procedure, Trial Rule 55. The court held that a T.R. 60(B) motion, rather than a T.R. 59 Motion to Correct Errors, is the proper motion even if filed during the 60 days following judgment. In the course of reaching this decision, the supreme court noted that "it seems Oxidermo's strategy was to keep filing Rule 60(B) motions, each time reasserting the 'excusable neglect' argument plus adding new grounds as well with each motion." Seibert Oxidermo, Inc. v. Shields, supra, at 338. Justice Givan then stated as follows:

"Shields cites the case of Carvey v. Indiana National Bank, (1978) 176 Ind.App. 152, 374 N.E.2d 1173, in support of his argument. In that case the Court of Appeals said: 'A party may not file repeated TR 60 motions until he either offers a meritorious ground for relief or exhausts himself and the trial court in an effort to do so. ['] Id. at 159, 374 N.E.2d at 1177.

Oxidermo points to other language in the Carvey case indicating error alleged in a second Rule 60(B) motion may be considered in an appeal if the grounds for that additional error were unknown and unknowable to the movant at the time he made the first Rule 60(B) motion. Oxidermo asserts that is the case with the second and third Rule 60(B) motions it made in this case.

We see nothing in Oxidermo's second and third Motions to Set Aside Default Judgment that would permit an application of the exception set forth in Carvey, supra. The additional grounds for relief alleged by Oxidermo in the second and third motions were either discoverable at the time the first Rule 60(B) motion was filed or related to an alleged substantive defense available to Oxidermo, that there was no proof Shields' injuries were caused by use of Oxidermo's defective product. Substantive defenses as to causation are no longer an issue between parties after there has been an entry of default against the defendant. See, e.g., Stewart v. Hicks, (1979) Ind.App., 395 N.E.2d 308. Thus, the question of a lack of causation between plaintiff...