Sheraton Corp. of America v. Korte Paper Co., Inc.

• Decision Date: 23 June 1977
• Docket Number: No. 3--276A27,3--276A27
• Citation: 173 Ind.App. 407,363 N.E.2d 1263
• Parties: SHERATON CORPORATION OF AMERICA, Defendant-Appellant, v. KORTE PAPER COMPANY, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1263

363 N.E.2d 1263

173 Ind.App. 407

SHERATON CORPORATION OF AMERICA, Defendant-Appellant, v. KORTE PAPER COMPANY, INC., Plaintiff-Appellee.

No. 3--276A27.

Court of Appeals of Indiana, Third District.

June 23, 1977.

Edward L. Murphy, Jr., Fort Wayne, for defendant-appellant; Livingston, Dildine, Haynie & Yoder, Fort Wayne, of counsel.

John M. Whitmore, Jr., Nieter, Dixon & Whitmore, Fort Wayne, for plaintiff-appellee.

GARRARD, Judge.

This appeal presents the question of whether a party (Korte) who loses at trial and permits the judgment against it to become final can utilize the provisions of Indiana Rules of Procedure, Trial Rule 60 to be relieved from judgment solely because a subsequent decision of an appellate court in an unrelated case declared the law to be contrary to that applied by the trial court in the party's case. We hold that in the absence of additional pertinent circumstances, it may not.

The facts disclose that Korte brought suit against Sheraton on an account for goods and merchandise furnished to the Sheraton-Fort Wayne Motor Hotel. On April 8, 1974, after trial judgment was entered for Sheraton, Korte filed a timely motion to correct errors which was denied on August 9, 1974. No appeal was taken from that ruling.

On December 17, 1974, our opinion was handed down in Sheraton Corp. of America v. Kingsford Packing Co., Inc. (1974), Ind.App., 319 N.E.2d 852. ¹ On April 10, 1975, Korte filed a motion seeking relief from the judgment against it pursuant to TR 60(B)(2), (7) and (8). The only allegation made was that in view of the Kingsford decision the court had erred in finding against Korte and therefore the judgment against it was no longer equitable. The trial court sustained the motion and entered judgment in favor of Korte for the amount of its claim.

To clarify the issue that ruling presents, it should first be noted that in Kingsford the creditor recovered judgment in the trial court. On appeal we were therefore bound to consider the evidence in the light most favorable to that decision. Under that standard of review, we concluded there was sufficient evidence to support the finding that Sheraton was equitably estopped from defeating liability on the basis of its non-ownership of the hotel. There was, accordingly, a potential factual distinction between the present case and Kingsford based upon the evidence produced at the trials and the weight and credibility determinations available to the separate triers of fact. However, no such distinction is before us. Korte asserted an identity of facts in the two cases. This assertion was undisputed by Sheraton in the TR 60 proceeding, its subsequent motion to correct errors, and on appeal. For purposes of this appeal Sheraton has conceded this issue. Thus, we are squarely presented with the availability of TR 60 to change the law of this case upon the basis of a later decision in a different case. The only assertion made by the TR 60 motion was that the judgment against Korte was contrary to law under the decision in Kingsford. That issue had been precisely raised in detail in Korte's original motion to correct errors.

Clearly, Korte was not entitled to relief pursuant to TR 60(B)(2). That subsection affords relief for,

'* * * 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;' (emphasis added)

There is no allegation or contention that the ground asserted in the TR 60 motion could not have been timely asserted in the exercise of due diligence. Indeed, it was asserted in a timely TR 59 motion.

The only facially applicable portion of TR 60(B)(7) provides relief where,

'. . . it is no longer equitable that the judgment should have prospective application;' (emphasis added) For this provision to be invoked there must be a showing of some material change in factual circumstance since the entry of the original judgment. Warner v. Young America Vol. Fire Dept. (1975), Ind.App., 326 N.E.2d 831. No such change was established or alleged.

Thus, the only provision under which Korte might be afforded relief is that of TR 60(B)(8),

'any other reason justifying relief from the operation of the judgment.'

It has been recognized that subsection (8) is a catchall provision that should be liberally construed to allow courts to vacate a judgment within the residual power of a court of equity to do justice. School City of Gary v. Continental Electric Co., Inc. (1973), Ind.App., 301 N.E.2d 803; 4 Harvey, Ind.Prac. 215, § 60.17 (1971). ²

Even so, we are constrained to hold the subsection has no application to this case for the facts do not invoke the court's equity powers. ³ The facts are that the claimant sued and lost. Although it filed a motion to correct errors, it then permitted the judgment to become final. On the basis of a subsequent decision in a legally unrelated case, it now asserts it should be relieved from the judgment because had it taken the appeal it elected to forego, it presumably would have won a reversal.

Perhaps it would be a sufficient answer to say that the ground upon which Korte sought relief was clearly assertable in a motion to correct errors and was therefore cognizable under TR 60(B)(2). It could then be concluded that TR 60(B)(8) was unavailable to reach an allegation that properly belonged under one of the specific subsections of the rule. That is the effect of Mr. Justice Black's comment in Klapprott v. U.S. (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, quoted with approval in School City of Gary, supra. It was held to be the relation between subsections (7) and (8) in Pub. Svc. Comm. v. Schaller (1973), Ind.App., 299 N.E.2d 625.

However, because of the potential overlap existing at the outer reaches of TR 59 and TR 60, ⁴ we state an alternative ground. The provisions of TR 60(B) do not provide a substitute for timely appeal. York v. Miller (1975), Ind.App., 339 N.E.2d 93; Moe v. Koe (1975), Ind.App., ...