Graham v. Schreifer

• Decision Date: 04 September 1984
• Docket Number: No. 4-783A224,4-783A224
• Citation: 467 N.E.2d 800
• Parties: Lowell GRAHAM, Appellant (Plaintiff Below), v. Don SCHREIFER, et al., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 800

467 N.E.2d 800

Lowell GRAHAM, Appellant (Plaintiff Below), v. Don SCHREIFER, et al., Appellee (Defendant Below).

No. 4-783A224.

Court of Appeals of Indiana,

Fourth District.

Sept. 4, 1984.

Susan L. Kehoe, Brown, Rakestraw & Kehoe, Rochester, for appellant.

Russell D. Millbranth, P.C., Winamac, for appellee.

MILLER, Presiding Judge.

In June, 1973, plaintiff-appellant Lowell Graham obtained a judgment in the amount of $35,150 against defendant-appellee Don Schreifer after Schreifer's attorney had withdrawn his appearance and Schreifer had failed to appear for trial. No action was taken to enforce the judgment until February, 1983, nine years and nine months after the judgment was entered, when Graham filed proceedings supplemental to execution. Schreifer then filed a motion pursuant to Ind.Rules of Procedure, Trial Rule 60(B) to set aside the judgment which the court granted. We have determined that, although Schreifer's T.R. 60(B) motion was filed almost ten years after judgment, the trial court did not abuse its discretion in granting said motion because of extraordinary circumstances justifying relief under Ind.Rules of Procedure, Trial Rule 60(B)(8). Affirmed.

FACTS

The record reveals that on June 28, 1972, Graham filed a two-paragraph complaint against Schreifer and C.J. Fenzau, as individuals, and against Select Farms of America, Inc. of which Schreifer and Fenzau were shareholders. He alleged the defendants (1) refused to pay for grain he delivered to them and (2) failed to keep a promise to reimburse him for a crop loss which he sustained after he treated a grain crop with a substance they had recommended. After service of summons was made upon Schreifer on June 30, 1972, attorney Stephen Bower entered an appearance for all the defendants, the fact of which Schreifer was informed by Fenzau. Bower shortly thereafter filed an answer, a motion for change of venue, a set of interrogatories, and participated in depositions taken of both Fenzau and Schreifer. The case was then venued to the Pulaski Circuit Court where it was set for a jury trial on June 11, 1973. ¹ However, on June 4, 1973, one No further action was taken in the case until February 9, 1983 (nine years and nine months after judgment was entered), when Graham filed a motion to enforce the judgment against Schreifer by proceedings supplemental to execution. Schreifer responded by filing a T.R. 60(B) motion to set aside the 1973 judgment, alleging the judgment was void as he was never notified of Bower's withdrawal nor of Graham's request for a default judgment. On April 18, 1983, at the hearing on his motion, Schreifer testified he believed he was being represented in the suit as a shareholder of Select Farms. He further testified neither attorney Bower nor the court ever informed him of the original June 11 trial date, Bower's withdrawl, or any subsequent proceedings. This testimony is supported by the record which contains no reference of notice being given to Schreifer of the court's order of withdrawal, the "default" hearing date, or of the judgment itself. The court granted Schreifer's motion, set aside the previous judgment and ordered a pre-trial conference. Graham then filed a motion to correct errors, which was denied.

week before the scheduled trial date, Bower filed a petition to withdraw his appearance for the defendants, alleging he had written Fenzau twice regarding trial arrangements and a possible settlement offer and had received no response from him or any other defendant. No mention was made in his petition that he had attempted to notify Schreifer. The court granted Bower's petition to withdraw June 11, 1973, and continued the trial date "pending receipt of [Graham's] motion to enter a default" because none of the defendants had shown up for trial. On June 14, 1973, Graham filed a motion for default judgment, along with an affidavit asserting damages in the amount of $35,150.00. The trial court heard evidence without the intervention of a jury, despite the fact both parties failed to concur in the withdrawal of the issues from jury consideration. The court granted judgment to Graham that same day.

The instant appeal followed. ²

DECISION

In reviewing a trial court's decision rendered upon a T.R. 60(B) motion, we are limited to deciding whether the trial court has abused its equitable discretion in its ruling. First National Bank & Trust Co. of Crawfordsville v. Coling, (1981) Ind.App., 419 N.E.2d 1326. "An abuse of discretion will be found only where the court's conclusion and judgment is an erroneous one, 'one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.' " Summerlot v. Summerlot, (1980) Ind.App., 408 N.E.2d 820, 828; Rose v. Rose, (1979) 181 Ind.App. 98, 390 N.E.2d 1056. The burden is on the movant to establish the existence of grounds for T.R. 60(B) relief, Crown Aluminum Industries v. Wabash Co., (1977) 174 Ind.App. 659, 369 N.E.2d 945, in addition to which, he must establish a meritorious defense to the judgment. Moe v. Koe, (1975) 165 Ind.App. 98, 330 N.E.2d 761. In Schreifer's actual T.R. 60(B) motion, he alleged the judgment was void and therefore should be set aside by reason of Ind.Rules of Procedure, Trial Rule 60(B)(6). The trial court issued only a general order, without specification of the T.R. 60(B) grounds for granting relief so, in subsequent arguments, Schreifer contends T.R. 60(B)(8) was applicable. For the reasons which follow, we agree with Schreifer that T.R. 60(B)(8) was the pertinent provision for affording relief from Graham's judgment.

Before proceeding further with the merits of the court's decision, we feel compelled to digress briefly to establish two basic tenets of law under which we have labored in researching and addressing the issue herein. First of all, we feel comfortable in referring to federal authorities when a federal rule of procedure parallels an Indiana rule, especially where, as here, the facts present issues upon which Indiana authority may be sparse. See Gumz v. Starke County Farm Bureau Co-operative Association, Inc., (1979) 271 Ind. 694, 395 N.E.2d 257; Yaksich v. Gastevich, (1982) Ind.App., 440 N.E.2d 1138. In addition, we have discovered no reason for differentiating between T.R. 60(B) cases based on judgments on the merits and those based on any other types of judgment (except for perhaps a more liberal proclivity toward granting a T.R. 60(B) motion upon default judgments). See C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., (7th Cir.1984) 726 F.2d 1202; Seven Elves, Inc. v. Eskanazi, (5th Cir.1981) 635 F.2d 396; compare Moe v. Koe, 165 Ind.App. 98, 330 N.E.2d 761 (judgment on merits) with Blichert v. Brososky, (1982) Ind.App., 436 N.E.2d 1165 (judgment of dismissal) and H & A, Inc. v. Gilmore, (1977) 172 Ind.App. 10, 359 N.E.2d 259 (default judgment). Having set forth the foregoing basic housekeeping rules, we will hopefully avoid having to render a detailed justification for our cited authority herein, which may not be from this jurisdiction nor directly on point.

Proceeding to the matter at hand, we find the T.R. 60(B) provisions pertinent to the controversy here to be as follows:

"(B) Mistake--Excusable neglect--Newly discovered evidence--Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;

(3) fraud ..., misrepresentation, or other misconduct of an adverse party;

(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;

* * *

* * *

(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).

The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4)." (Emphasis added.)

According to Professors Harvey and Townsend,

"Rule 60(B)(8) is a catch-all provision allowing the court to vacate a judgment within the residual power of a court of equity to do justice. Experience under its counterpart from the Federal Rules does not lend much support as to its meaning, except that it has been liberally construed to include old remedies not covered by other statutes and precedent and extend it to new situations."

4 W. HARVEY & R. TOWNSEND, INDIANA PRACTICE Sec. 60.17 (1971). These residual powers under subsection (8) "may only be invoked upon a showing of exceptional circumstances justifying extraordinary relief," In re Marriage of Jones, (1979) 180 Ind.App. 496, 389 N.E.2d 338, 340 (emphasis in original), and is exclusive of other remedies available under T.R. 60(B)(1), (2), (3), and (4). Blichert v. Brososky, supra, 436 N.E.2d 1165. We conclude that the unfortunate combination of events herein deserves T.R. 60(B)(8)'s extraordinary relief although each individual event may not, of itself, call for such measures.

Schreifer, first of all, apparently had no measure of control over employment of attorney Bower. He was led to believe he was being sued in his capacity as a shareholder in Select Farms, and Bower was evidently retained by Fenzau, co-defendant and also a shareholder. This situation would logically explain why Bower's motion to withdraw only mentions his communications with Fenzau, regarding trial arrangements and a...