Mathis v. Morehouse
| Decision Date | 08 April 1982 |
| Docket Number | No. 2-581A180,2-581A180 |
| Parties | James B. MATHIS, Appellant (Defendant Below), v. Roscoe L. MOREHOUSE, d/b/a Morehouse Construction Co., Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
John P. Price, Gregory D. Sumner, Bingham, Summers, Welsh & Spilman, John F. McCann, Jr., McCann & Longerger, Indianapolis, for appellant.
J. Michael Antrim, John K. Smeltzer, Church, Roberts & Beerbower, Noblesville, for appellee.
Appellant, James B. Mathis, appeals the denial of his Ind.Rules of Procedure, Trial Rule 60(B) motion to set aside a default judgment. Mathis raises two issues on appeal:
I. Did the trial court err in failing to set aside the default judgment, and
II. Did the trial court err in failing to set aside the damage portion of the judgment.
We affirm.
Morehouse filed his complaint against Mathis on October 3, 1979. An amended complaint was filed November 30, 1979 and was followed by an application for default judgment on February 25, 1980. The original hearing date on the application was continued at Mathis' request and, on March 28, 1980, was reset for April 15, 1980. Mathis filed an answer on March 27, 1980, approximately three (3) months late. On April 7, 1980 Mathis filed a pleading entitled "Motion of Defendant to Relieve Defendant and Defendant's Counsel from Default Judgment under T.R. 60(B)." On April 15, 1980 the hearing on the application for default was held. Morehouse appeared at this hearing but Mathis did not. The trial judge granted the default judgment and denied Mathis' "T.R. 60(B)" motion. On May 5, 1980, Mathis filed a second T.R. 60(B) motion. This motion was denied on October 27, 1980. Mathis filed a motion to correct error on December 24, 1980 and it was denied on March 6, 1981. The praecipe was filed March 25, 1981. This appeal followed.
We must affirm the trial court without consideration of the issues raised on appeal. We affirm because any trial court error in denying Mathis' denominated T.R. 60(B) motion was not preserved for appeal.
In Snider v. Gaddis, (1980) Ind.App., 413 N.E.2d 322, this court extensively discussed the appropriate distinct functions of Indiana Rules of Procedure, Trial Rules 59 and 60(B).
Thus any attack upon any appealable final order or judgment, including a judgment by default, encompassed upon the grounds and bases provided by T.R. 59 and T.R. 60(B) 1 which are discovered or discoverable with due diligence not later than sixty days after the entry of an appealable final order or judgment, including a judgment by default, shall be made by a T.R. 59 motion. No further motion to correct errors is required for an appeal of any error in denying the motion to correct errors. Any attack upon any appealable final order or judgment, including a judgment by default, upon the grounds and bases provided by T.R. 59 and T.R. 60(B) which are neither discovered nor discoverable with due diligence not later than sixty days after the entry of an appealable final order or judgment, including a judgment by default, shall be made by a T.R. 60(B) motion. Any error in denying the T.R. 60(B) motion must thereafter be raised by a timely filed T.R. 59 motion.
We recognize the Snider decision was handed down eight (8) months after the trial court entered the subject default judgment. However, the Snider decision is a reaffirmance of our earlier decision of Warner v. Young America Volunteer Fire Dept., (1975) 164 Ind.App. 140, 326 N.E.2d 831, which also held the right to attack a judgment by a T.R. 60(B) motion is limited to errors which by due diligence could not have been discovered in time to file a timely T.R. 59 motion to correct errors.
That Mathis filed his denominated T.R. 60(B) motion twenty (20) days after the trial court's judgment attests to the fact the alleged errors were known to him within the period in which a timely motion to correct error could have been filed. T.R. 59(C) (1980). Therefore, his only recourse was to file a T.R. 59 motion to correct error. However, when we treat his denominated T.R. 60(B) motion as a T.R. 59 motion, we find he failed to file a timely praecipe. Ind.Rules of Procedure, Appellate Rule 2(A). Furthermore, Mathis failed to file any motion after the time had expired for a T.R. 59 motion to correct error which alleged any error which was not discovered, or discoverable with due diligence, during the sixty (60) day period for filing a T.R. 59 motion.
Finally, to negate any misunderstanding by the bench or bar, we specifically disapprove Dawson v. St. Vincent Hospital & Health Center, Inc., (1981) Ind.App., 426 N.E.2d 1328, to the extent it holds a T.R. 60(B) motion filed within sixty (60) days of a default judgment is not treated as a T.R. 59 motion if it invokes the equity powers of the trial court.
Judgment affirmed.
I concur insofar as the majority affirms the refusal of the trial court to set aside the default, but I dissent insofar as the decision today also affirms the judgment for $33,428.41 upon a complaint which sought that exact sum.
I agree that application of the rigid rule enunciated in In re the Marriage of Robbins (3d Dist. 1976) 171 Ind.App. 509, 358 N.E.2d 153 and Snider v. Gaddis (1st Dist. 1980) Ind.App., 413 N.E.2d 322 simplifies resolution of this case. I likewise acknowledge that the divergence and seeming irreconcilability of prior case law dealing with Ind.Rules of Procedure, Trial Rule 59 and Trial Rule 60, for the most part, results from attempts to reach the merits of an appeal (see In re the Marriage of Robbins, supra, 358 N.E.2d 153; Kelly v. Bank of Reynolds (2d Dist. 1976) 171 Ind.App. 515, 358 N.E.2d 146) rather than to dismiss upon technical grounds which are viewed by us in the clarity and wisdom of hindsight. See Dawson v. St. Vincent Hospital & Health Care Center, Inc. (4th Dist. 1981) Ind.App., 426 N.E.2d 1328.
We should not lose sight of the fact that our rules constitute in many respects a morass and a mixture of overlap, insufficiency, inconsistency and incomprehensibility. This has been caused in some measure by the attempted adoption of many or most of the federal rules but thereafter engrafting onto those rules incompatible old Indiana procedures. As adopted, our T.R. 60 was virtually identical to Federal Rules Civ.Proc.R. 60 but the dilemma presented in the Indiana procedure is not present in the federal practice because Federal Rules Civ.Proc.R. 59 is an optional motion which is not required to be filed as a condition precedent to appeal.
Demonstration of this unfortunate situation is found in the catch-all provision of T.R. 60(B)(8) which would appear to permit a T.R. 60 Motion to allege T.R. 59 grounds after the expiration of 60 days. We of course know such not to be the case. We have many times held, as does the majority today, that T.R. 60 may not be used as a substitute for direct appeal.
When T.R. 60 refers to a specific ground for relief not enumerated in T.R. 59, one might assume that counsel could reasonably choose to utilize that procedure. For example, counsel might well choose to utilize a T.R. 60 motion to allege that a judgment was suffered through "mistake" or "excusable neglect," grounds which are not specifically set forth in T.R. 59.
The circumstances in the case before us exemplify the trap which the present rules set for appeals instituted by reasonable procedural methods. Our case does not involve an attempt to revive an appeal which died 60 days following judgment. Rather it involves the filing of a T.R. 60 Motion filed within the 60 day period following the judgment and alleging clear-cut grounds for relief from the damage award pursuant to T.R. 60, i.e. that his appearance at the proceeding during which damages were awarded was prevented by mistake, surprise and excusable neglect. A timely Motion to Correct Errors was filed after denial of the T.R. 60 Motion and a timely praecipe filed after the latter Motion was denied. To the extent therefore that Mathis seeks his day in Court to require plaintiff to establish by evidence entitlement to the unliquidated damages claimed, he does not use T.R. 60 as a substitute for a direct appeal nor does he in this regard attempt to avoid the expiration of 60 days without seeking appropriate relief. While I would adopt the simplified, if not simplistic, procedure set forth by the majority, I would do so only...
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