Siebert Oxidermo, Inc. v. Shields

• Decision Date: 16 March 1983
• Docket Number: No. 1282S471,1282S471
• Citation: 446 N.E.2d 332
• Parties: SIEBERT OXIDERMO, INC., Appellant, v. Hershell David SHIELDS, Appellee.
• Court: Indiana Supreme Court

Page 332

446 N.E.2d 332

SIEBERT OXIDERMO, INC., Appellant, v. Hershell David SHIELDS, Appellee.

No. 1282S471.

Supreme Court of Indiana.

March 16, 1983.

John R. Berger, Angola, David B. Keller, Paul D. Mathias, Parker, Hoover, Keller & Waterman, Fort Wayne, for appellant.

Grant Van Horne, Van Horne & Turner, Auburn, for appellee.

PETITION FOR REHEARING

GIVAN, Chief Justice.

Appellant Siebert Oxidermo (hereinafter "Oxidermo") petitions for rehearing in this case. On December 7, 1982, this Court handed down an opinion in this case dismissing the appeal initiated earlier by Oxidermo.

Oxidermo had originally appealed the case, in which the trial court granted a default judgment against Oxidermo, to the Court of Appeals. That Court issued a memorandum decision which affirmed the trial court's entry of default and grant of judgment thereon against Oxidermo. Then on rehearing the Court of Appeals reaffirmed the trial court's refusal to set aside the entry of default but reversed the trial court on the damages issue and remanded the case for rehearing or retrial on the issue of damages alone. See, Siebert Oxidermo, Inc. v. Shields, (1982) Ind.App., 430 N.E.2d 401.

Following the Court of Appeals' opinion on rehearing, both parties petitioned for transfer to this Court. We granted appellee Hershell David Shields (hereinafter "Shields") Petition to Transfer but denied that of Oxidermo. We issued an opinion, No. 1282 S 471, handed down December 7, 1982, holding Oxidermo had altogether forfeited its right to appeal for failure to comply with Ind.R.App.P. 2(A) requiring a party to file a praecipe with the trial court within thirty days of the trial court's ruling on the Motion to Correct Error. We reached such result on the finding the trial court's ruling on the first of three Motions to Correct Error filed by Oxidermo was made February 14, 1980, and Oxidermo's praecipe was not filed until May 14, 1980, well beyond the thirty day limit of Appellate Rule 2(A).

Oxidermo in its Petition for Rehearing pointed out we made an error in reading the record in this case. A correct reading of the record shows Oxidermo filed its praecipe with the trial court on February 21, 1980, obviously well within the time limit of Appellate Rule 2(A).

Therefore, our holding that the appeal was dismissed for failure to comply with Appellate Rule 2(A) was erroneous. Oxidermo did not on this or any other basis forfeit its right to appeal in this case. We accordingly withdraw our previously issued opinion in this case and grant the Petition for Rehearing of appellant Oxidermo. For reasons we shall show, we believe the remand of the case to the trial court for rehearing and retrial on damages was an erroneous disposition. We, therefore, grant Shields' Petition to Transfer which addresses this issue. We deny appellant Oxidermo's Petition to Transfer. It addresses the decision of the Court of Appeals insofar as the trial court's refusal to set aside the entry of default and grant of judgment thereon are concerned, which we believe to be correct.

FACTS

Litigation in this case began on April 25, 1979, with the filing of a complaint in DeKalb Superior Court by Shields against Oxidermo. Plaintiff sought damages in the amount of $760,000.00. Shields alleged he suffered permanent physical disabilities as a result of a heart attack he alleged was caused by inhaling paint fumes from the paint manufactured by Oxidermo.

Service was effected on Oxidermo on April 30, 1979, by certified mail. Accordingly, May 23, 1979, was the last date on which Oxidermo could file its answers. See, Ind.R.Tr.P. 6(C), (E). When no such responsive pleading was filed, Shields moved for a default judgment. The trial court entered a default and granted the default judgment against Oxidermo on May 24, 1979.

An attorney for Oxidermo entered an appearance shortly thereafter. On June 28, 1979, Oxidermo filed a "Motion to Set Aside Default and Default Judgment." In that motion, which Oxidermo specified as filed in accordance with Indiana Rules of Trial Procedure 55(C) and 60(B), Oxidermo alleged its failure to appear in the instant case was due to "excusable neglect." The essence of this claim was that Oxidermo forwarded the "suit papers" to its insurance agent, who then failed to get them to the proper insurance carrier on time. On September 6, 1979, a hearing was held on Oxidermo's motion. On October 9, 1979, the trial court denied the motion and entered Findings of Fact and Conclusions of Law with respect to that ruling.

The record in this case from this point on, insofar as procedural events are concerned, is to say the least tortured and confusing. These events are best understood if set forth as follows:

November 15, 1979--Second "Motion to Set Aside Default and Default Judgment," filed by Oxidermo.

December 4, 1979--First "Motion to Correct Errors," responding to denial of first motion to set aside, filed by Oxidermo.

January 23, 1980--Second motion to set aside (filed November 15, 1979) denied.

February 1, 1980--Second "Motion to Correct Errors," responding to denial of second motion to set aside, filed by Oxidermo.

February 13, 1980--Third "Motion to Set Aside Default and Default Judgment," filed by Oxidermo.

February 14, 1980--First and Second motions to correct error (filed December 4, 1979, and February 1, 1980) denied.

February 21, 1980--Praecipe for record filed in trial court by Oxidermo

March 28, 1980--Third motion to set Aside (filed February 13, 1980) denied.

May 13, 1980--Third "Motion to Correct Error," responding to denial of third motion to set aside, filed by Oxidermo. Denied this date.

May 14, 1980--Record filed with Clerk of Supreme Court and Court of Appeals.

One of Shields' arguments is that appellate jurisdiction in this case was never properly established and therefore the Court of Appeals erred in deciding the appeal at all. We rejected Shields' arguments in this regard in our original opinion and sua sponte (and erroneously) found appellate jurisdiction in this case was never established on another basis. Our grant of Shields' petition necessitates we again address the argument raised by Shields in this regard. The argument is premised on some recent decisions of the Court of Appeals in which that Court has reached some divergent holdings as to the proper procedure to be followed for challenging an entry of default and grant of judgment thereon.

Shields' argument focuses on Oxidermo's first Motion to Set Aside Default and Default Judgment, filed June 28, 1979, and denied October 9, 1979. It is Shields' contention this motion, allegedly brought on the authority of Ind.R.Tr.P. 60(B), must be treated as a Rule 59 Motion to Correct Error. Shields argues since it must be so treated, Oxidermo's time for perfecting an appeal from its denial began to run on the date it was denied, October 9. Therefore, Shields argues, Oxidermo had thirty days from October 9 in which to file its praecipe for the record and ninety days from October 9 in which to file the record with the Court of Appeals. See, Ind.R.App.P. 2(A) and 3(B). Obviously Oxidermo did not meet these requirements. The praecipe was not filed until February 21, 1980, one hundred thirty-five days after October 9, and the record was not filed until May 14, 1980, two hundred seventeen days after October 9, 1979. Thus, Shields concludes the Court of Appeals never had appellate jurisdiction in this case due to Oxidermo's failure to comply with Appellate Rules 2(A) and 3(B) requiring the praecipe and the record to be filed within thirty days and ninety days, respectively, of the ruling on the Motion to Correct Error. As stated, Shields' argument is dependent upon construing the Motion to Set Aside Default and Default Judgment, denied October 9, 1979, as a Rule 59 Motion to Correct Error.

In support of his argument the June 28 motion is to be treated as a motion to correct error, Shields cites In Re Marriage of Robbins, (1976) 171 Ind.App. 509, 358 N.E.2d 153. In that case the Third District of the Court of Appeals pointed out Rules 59 and 60 have some of the same basic inherent purposes, one of which is to call to the attention of the trial court errors in equity or in law. The Court read Ind.R.Tr.P. 59(A)(9), as encompassing all the equitable purposes in Ind.R.Tr.P. 60(B) during the sixty day period after the entry of a final judgment. The Court concluded: "Therefore, a TR. 60 purpose stated in a motion, regardless of its denomination, should be treated as a TR. 59 motion if it is filed within the sixty day period after judgment." Id. at 513, 358 N.E.2d at 155.

Subsequently, in Sowers v. Sowers, (1981) Ind.App., 428 N.E.2d 245, the Third District cited In Re Marriage of Robbins, supra, and reaffirmed its holding.

However, in Pre-Finished Moulding v. Ins. Guidance Corp., (1982) Ind.App., 438 N.E.2d 16, the Third District seemingly relaxed the rule established in In Re Marriage of Robbins, supra, and reaffirmed in Sowers, supra. In Pre-Finished Moulding, supra, the plaintiff-appellant suffered a dismissal for failure to prosecute, such order being entered on August 12, 1980. The plaintiff-appellant filed a Rule 60(B) motion to reinstate on September 12, which was denied on October 3. Then on December 2 he filed a Rule 59 motion alleging error in the denial of the motion to reinstate. The trial court, apparently following the rule in the Robbins case, held the motion to reinstate was in reality the motion to correct error and the December 2 motion was therefore not timely filed, as it was filed well after the entry of the final judgment in the case, which was the August 12 order of dismissal. The Court of Appeals stated:

"[U]ntil such time as our Supreme Court establishes by rule or decision that no motion to correct errors will be permitted to be addressed to the ruling on a TR 60 motion, we believe the interests of justice and fair play dictate that a party should not forfeit...