Snider v. Gaddis

• Decision Date: 15 December 1980
• Docket Number: No. 1-780A167,1-780A167
• Parties: Donald E. SNIDER and Margaret F. Snider, Appellants (Defendants and Third-Party Plaintiffs Below), v. Clyde R. GADDIS and Irene Gaddis, Appellees (Plaintiffs Below), v. Jesse BROADSTREET a/k/a Alfred Broadstreet (Third-Party Defendants Below).
• Court: Indiana Appellate Court

Page 322

413 N.E.2d 322

Donald E. SNIDER and Margaret F. Snider, Appellants (Defendants and Third-Party Plaintiffs Below), v. Clyde R. GADDIS and Irene Gaddis, Appellees (Plaintiffs Below), v. Jesse BROADSTREET a/k/a Alfred Broadstreet (Third-Party

Defendants Below).

No. 1-780A167.

Court of Appeals of Indiana, First District.

Dec. 15, 1980.

Jamie L. Weinberg, Legal Services Organization of Ind. Inc., Bloomington, for appellants.

George W. Languell, Spencer, for appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Donald E. and Margaret F. Snider (Sniders) appeal the decision of the trial court which granted plaintiffs-appellees, Clyde R. and Irene Gaddis (Gaddises) motion for relief from judgment under Ind. Rules of Procedure, Trial Rule 60(B) (8).

We reverse.

STATEMENT OF THE FACTS

The facts are not in dispute. Gaddises filed a complaint in ejectment and damages on June 9, 1977. The complaint alleged the Gaddises were the owners in fee of certain real estate. Sniders denied the allegations in the complaint and counterclaimed for a judgment declaring them to be the owners in fee simple. Sniders also filed a third party complaint alleging that the third party defendant had conveyed title to the real estate to them prior to conveying title to Gaddises. The trial court entered judgment on May 12, 1978, declaring Sniders to be the owners in fee simple. No motion to correct Sniders filed a motion to correct judgment pursuant to Ind. Rules of Procedure, Trial Rule 60(A) on August 7, 1978, to correct a typographical error in the description of the real estate. The motion was granted that same day. On October 23, 1979, Gaddises filed a motion for relief from the judgments of May 12, and August 7, 1978. Gaddises, who had retained new counsel for this motion, requested the trial court modify its judgment to show that Sniders owned a limited life estate in the real estate described rather than a fee simple interest. On December 6, 1979, the trial court set aside the judgment entered on May 12, 1978, and found for the Gaddises on their complaint and declared them to be the fee simple owners of the real estate. Donald E. Snider was given a limited life estate based on an "Agreement" executed June 12, 1950, and recorded on July 25, 1967. It is from this order that Sniders appeal.

errors was filed and no appeal was taken from this judgment.

Sniders contend that the trial court abused its discretion by granting Gaddises relief under either subpart (A) or (B) of T.R. 60. As Gaddises concede T.R. 60(A) is not applicable, we proceed to the merits of Sniders' T.R. 60(B) contention.

STATEMENT OF ISSUES

The only issue presented for our decision in this case is whether or not the trial court abused its discretion in granting the T.R. 60(B)(8) motion for relief from judgment.

DISCUSSION AND DECISION

Trial Rule 60(B) provides eight clauses under which relief can be granted. The first four clauses of (B) are clearly not applicable as this action was commenced more than one year after the judgment was entered. Additionally, clauses (5), (6) and (7) have not been argued and are inappropriate nevertheless. Therefore, only clause (8) can serve as a basis for relief. Trial Rule 60(B)(8) allows a court to relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment." The one year time limit is not applicable to clause (B), the only requirement being that the action be brought within a reasonable time.

The question in this case is whether it was appropriate to grant a T.R. 60(B) (8) motion for the purpose of correcting an allegedly erroneous decision on the evidence when no motion to correct errors was filed and no appeal taken.

It is firmly established that a motion for relief from judgment under T.R. 60(B) may not be used as a substitute for a direct appeal based upon a timely motion to correct errors under Ind. Rules of Procedure, Trial Rule 59. Toller v. Toller, (1978) Ind.App., 375 N.E.2d 263; In re Marriage of Robbins, (1976) 171 Ind.App. 509, 358 N.E.2d 153; York v. Miller, (1975) 167 Ind.App. 444, 339 N.E.2d 93; Moe v. Koe, (1975) 165 Ind.App. 98, 330 N.E.2d 761; Warner v. Young America Volunteer Fire Dept., (1975) 164 Ind.App. 140, 326 N.E.2d 831. Neither can a T.R. 60(B) motion be employed to revive an expired attempt to appeal. York v. Miller, supra. The proper function of T.R. 60(B) is to afford relief from circumstances which could not have been discovered during the sixty day period in which a T.R. 59 motion to correct errors could have been filed with the trial court. In re Marriage of Robbins, supra.

In Irmiger v. Irmiger, (1977) 173 Ind.App. 519, 364 N.E.2d 778, the appellant Donald Irmiger filed a motion to correct errors under T.R. 59. However, he did not perfect his appeal by filing a praecipe within thirty days of the overruling of his motion to correct errors, and did not file a transcript of the proceedings within the time provided by the appellate rules. Donald thereafter filed a motion for relief from judgment under T.R. 60 asserting the same issues as his T.R. 59 motion. His T.R. 60 motion being denied, Donald filed a motion to correct errors and then appealed. This court, in an opinion by Judge Lowdermilk, dismissed the appeal saying:

"In the case at bar Donald failed to perfect his appeal .... His subsequent motion for relief from judgment was ineffective in preserving those issues which were or could have been raised in his original motion to correct errors because such motion for relief from judgment was an attempt on Donald's part to revive certain issues after the time to perfect his appeal, the only means by which the trial court's rulings on those issues could have been reviewed at that time, had passed.

"Donald contends that the trial court's denial of his motion for relief from judgment was a final judgment to which a motion to correct errors can be addressed and from which an appeal can be taken. It is correct that the denial of a motion for relief from judgment is a final judgment from which an appeal can be taken. However, where the allegations of error raised in that motion have been or could have been raised in a previous motion to correct errors or have been raised in a previous motion for relief from judgment, then those errors are waived and cannot be alleged on appeal." (Footnotes omitted.)

364 N.E.2d at 780.

In Warner v. Young America Volunteer Fire Dept., supra, this court stated the rule that a T.R. 60(B) motion may not be used as a substitute for a timely appeal and held that the use of a T.R. 60 motion to raise errors which could have been asserted by a motion to correct errors is limited to those not discoverable in time to be raised in a T.R. 59 motion to correct errors. This court stated at 326 N.E.2d 834-35:

"Rule TR. 60 permits an attack on a judgment by motion, and an appeal following the ruling on the motion. However, the relief afforded by Section B of this rule is not a substitute for a timely appeal. Our research does not disclose an Indiana case so holding, but the language of the rule itself indicates such an intention. Subsection (2) of Section (B) provides:

'(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,' ((Original) emphasis)

"Dean Harvey also points out that the right to raise errors which could be raised by a motion to correct errors is limited to errors which could not have been discovered in time for a motion to correct errors under Rule 59.

"Appellant Warner did not allege any facts in his Motion for Relief from Judgment which would entitle him to relief under TR. 60(B) subsections (1), (3), (4), or (5). Because he did not allege that the four new allegations of his Motion for Relief from Judgment could not have been discovered in time to move for a motion to correct errors under Rule 59, he cannot obtain relief under subsection (2). This leaves for our consideration subsections (6) (judgment is void), that part of subsection (7) which reads 'it is no longer equitable that the judgment should have prospective application,' and subsection (8) (any other reason justifying relief from the operation of the judgment).

"Clause (6) of the federal rule 60(b) is the same as subsection (8) of Indiana TR. 60(B). The federal courts have held that relief under Rule 60(b) (6) is not a substitute for an appeal. In Wright and Miller, Federal Practice and Procedure, Vol. 11, § 2864, pp. 214 and 215, the authors state:

'The broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated, and deliberate choices he had made. A party remains under a duty to take legal steps to protect his own interests. In particular, it ordinarily is not permissible to use his motion to remedy a failure to take an appeal. However, this is not an inflexible rule and in unusual cases a party who has not taken an appeal may obtain relief on motion.' ((Original) emphasis)

"There are numerous federal decisions interpreting federal Rule 60(b)(6). The common thread running through these decisions is that Rule 60(b)(6) affords a means for extraordinary relief, to be granted at the discretion of the court only upon a showing of exceptional circumstances and that the remedy thus afforded is not a substitute for an appeal, nor can it be used to revive the right to an appeal after the time for appeal has expired.

"See: Expeditions Unlim. Aquatic Ent., Inc. v. Smithsonian Inst., 163 U.S.App.D.C. 140, 500 F.2d 808, 809 (1974); Horace v. St. Louis Southwestern Railroad Company, 8 Cir., 489 F.2d 632, 633 (1974); Lubben v. Selective Service System Local Bd. No. 27, 1 Cir., 453 F.2d 645, 651 (1972); Martella v. Marine Cooks and Stewards Union, Seafarers, Int'l Union of North America, AFL-CIO, 9 Cir., 448 F.2d 729 (1971); Demers v. Brown, 1...