Indiana Ins. Co. v. Ins. Co. of N. America

Decision Date29 August 2000
Docket NumberNo. 49A04-9909-CV-438.,49A04-9909-CV-438.
Citation734 N.E.2d 276
CourtIndiana Appellate Court

Michael E. Brown, John B. Drummy, Kightlinger & Gray, Indianapolis, Indiana, Attorneys for Appellant.

John C. Trimble, Anthony M. Eleftheri, Lewis & Wagner, Indianapolis, Indiana, Attorneys for Appellee.


RILEY, Judge


Appellant-Defendant, Indiana Insurance Company (Indiana Insurance), appeals the trial court's Order granting Appellee-Plaintiff, Insurance Company of North America's (INA) Motion to Reinstate Cause of Action, filed pursuant to Ind. Trial Rule 60(B)(8).

We affirm.


Indiana Insurance presents one issue on appeal, which we restate as: whether the trial court abused its discretion by granting INA's T.R. 60(B)(8) motion.


On January 9, 1996, INA initiated this action by filing a complaint against Indiana Insurance alleging breach of contract and subrogation. INA requested a judgment in the amount of $698,537.25 plus interest and court costs. On August 28, 1996, INA filed an Amended Complaint in order to attach a copy of the applicable insurance policy from INA to the complaint. On September 10, 1996, Indiana Insurance filed an Answer to INA's Amended Complaint. INA served its First Request for Production of Documents to Indiana Insurance on September 4, 1996.

On February 28, 1997, the trial court set this case for a T.R. 41(E) "call of the docket" hearing. This hearing was scheduled for April 11, 1997, at 9:15 a.m. Neither party appeared at that time. Meanwhile, Indiana Insurance answered INA's discovery on April 25, 1997. Indiana Insurance also served INA with discovery requests on that date. On May 16, 1997, this case was dismissed by the trial court pursuant to T.R. 41(E). The parties were not notified of the dismissal by the trial court. INA's prior counsel claims to have prepared and filed a paper entitled "Notice of Intent to Continue Cause" on March 28, 1997. However, this document was not found in the trial court's file and was not reflected in the trial court's chronological case summary. Further, counsel for Indiana Insurance did not receive a copy of this Notice and counsel for INA was unable to produce a file-marked copy of this document.

On December 3, 1998, over eighteen months after this case was dismissed for failure to prosecute, INA filed a Motion to Reinstate Cause of Action pursuant to T.R. 60(B)(8). A hearing was held on this motion on March 30, 1999, and on August 16, 1999, the trial court granted INA's Motion to Reinstate the Cause of Action.

This appeal ensued.


INA argues that its Motion to Reinstate Cause of Action is based on the lack of actual notice of the trial court's judgment of dismissal and that it does not fall within the terms of T.R. 60(B)(1). INA contends that the trial court acted within its discretion pursuant to T.R. 60(B)(8) by relieving it of the judgment of dismissal. Indiana Insurance asserts that the trial court abused its discretion by granting INA's Motion to Reinstate Cause of Action. INA's motion was filed pursuant to T.R. 60(B)(8), and Indiana Insurance argues that the circumstances of this case do not justify relief under T.R. 60(B)(8). Specifically, Indiana Insurance asserts that INA suffered the judgment of dismissal because its attorney failed to exercise due diligence by regularly checking court records to ascertain the status of its complaint against Indiana Insurance. Therefore, Indiana Insurance contends that INA's motion fell within the terms of T.R. 60(B)(1) and that the motion was untimely because it was filed more than one year after the trial court had entered its judgment of dismissal.

Here, INA's Amended Complaint was dismissed pursuant to T.R. 41(E). T.R. 41(E) provides as follows:

Failure to prosecute civil actions or comply with rules. Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff's costs if the plaintiff shall not show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.

"A dismissal for failure to prosecute or to comply with our Trial Rules pursuant to Trial Rule 41(E) is a dismissal with prejudice unless the trial court provides otherwise." Browning v. Walters, 620 N.E.2d 28, 32 (Ind.Ct.App.1993). Consequently, a motion made under T.R. 41(E) to reinstate a cause after a dismissal must be made under T.R. 60(B). Lake County Trust No. 3190 v. Highland Plan Com'n, 674 N.E.2d 626, 628 (Ind.Ct.App.1996), trans. denied.

A motion made under T.R. 60(B) is addressed to the "equitable discretion" of the trial court. Id. at 628. However, "the trial court's discretion is circumscribed and limited by the eight categories listed in T.R. 60(B)." Blichert v. Brososky, 436 N.E.2d 1165, 1167 (Ind.Ct.App. 1982). Nonetheless, the grant or denial of the T.R. 60(B) motion will be reversed only when the trial court has abused its discretion. Fairfield v. Fairfield, 538 N.E.2d 948, 949-50 (Ind.1989). In ruling on a T.R. 60(B) motion, the trial court is required to "balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and society in general in the finality of litigation." Chelovich v. Ruff & Silvian Agency, 551 N.E.2d 890, 892 (Ind.Ct.App. 1990). When the trial court's action is clearly erroneous, an abuse of discretion will be found. Fairfield, 538 N.E.2d at 950. A trial court's action is clearly erroneous when it is "against the logic and effect of the facts before it and the inferences which may be drawn therefrom." Id. This court has specifically held that: "[i]t is an abuse of the trial court's discretion to grant a motion under T.R. 60(B)(1)-(4) if more than one year has passed since the judgment was entered." Id.

Under T.R. 60(B), the burden is on the movant to establish grounds for relief. McIntyre v. Baker, 703 N.E.2d 172, 174 (Ind.Ct.App.1998). T.R. 60(B) is meant to afford relief from circumstances which could not have been discovered during the period a motion to correct error could have been filed; it is not meant to be used as a substitute for a direct appeal or to revive an expired attempt to appeal. Snider v. Gaddis, 413 N.E.2d 322, 324 (Ind.Ct.App.1980).

T.R. 60(B) provides in pertinent part as follows:

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 (whether heretofore denominated intrinsic or extrinsic), 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). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense....

Because it had been over one (1) year since the trial court dismissed this case, the provisions of T.R. 60(B)(1)-(4) were unavailable to INA. Thus, INA filed its motion pursuant to T.R. 60(B)(8). T.R. 60(B)(8) allows the trial court to set aside a judgment within a reasonable time for any reason justifying relief "other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4)." T.R. 60(B)(8). "These residual powers under subsection (8) `may only be invoked upon a showing of exceptional circumstances justifying extraordinary relief,' and is exclusive of other remedies available under T.R. 60(B)(1), (2), (3), and (4)." Graham v. Schreifer, 467 N.E.2d 800, 803 (Ind.Ct.App.1984) (citing In re Marriage of Jones, 180 Ind.App. 496, 389 N.E.2d 338, 340 (1979) (emphasis in original)).

This court has further explained the provisions of T.R. 60(B)(8) as follows:

T.R. 60(B)(8) is an omnibus provision which gives broad equitable power to the trial court in the exercise of its discretion and imposes a time limit based only on reasonableness. Nevertheless, under T.R. 60(B)(8), the party seeking relief from the judgment must show that its failure to act was not merely due to an omission involving the mistake, surprise or excusable neglect. Rather some extraordinary circumstances must be demonstrated affirmatively. This circumstance must be other than those circumstances enumerated in the preceding subsections of T.R. 60(B).

Blichert, 436 N.E.2d at 1167 (citations omitted). Thus, if INA's motion could have properly fallen under any of the provisions of T.R. 60(B)(1)-(4), T.R. 60(B)(8) is unavailable.

Indiana Insurance argues that INA's motion to reinstate properly fell under the provisions of T.R. 60(B)(1) because the default that was entered in ...

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