Weppler v. Stansbury, 66A03-9705-CV-160

• Decision Date: 18 May 1998
• Docket Number: No. 66A03-9705-CV-160,66A03-9705-CV-160
• Citation: 694 N.E.2d 1173
• Parties: Kenneth WEPPLER, Appellant, v. Dennis N. STANSBURY, Appellee.
• Court: Indiana Appellate Court

Page 1173

694 N.E.2d 1173

Kenneth WEPPLER, Appellant, v. Dennis N. STANSBURY, Appellee.

No. 66A03-9705-CV-160.

Court of Appeals of Indiana.

May 18, 1998.

Steven M. Bush, Millbranth and Bush, Valparaiso, for Appellant.

Timothy P. Broden, Broden and Miller, Lafayette, for Appellee.

OPINION

HOFFMAN, Judge.

Appellant Kenneth Weppler appeals the trial court's order denying his motion for relief from a judgment based upon Ind.Trial Rule 60(B)(8). Weppler's sole contention is that the trial court abused its discretion in failing to grant the motion. The facts relevant to review are recited below.

In a memorandum decision issued October 22, 1996, this Court affirmed a judgment in favor of Dennis Stansbury finding Weppler liable for a loan by Stansbury in the amount of $15,000. ¹ The underlying facts disclose that the loan originated when John Ash, who along with Stansbury represented a life insurance company, approached Weppler about contributing additional funds to a previously issued $700,000 life insurance on Weppler's life. Stansbury suggested loaning Weppler the $15,000. An agreement purporting to be a promissory note was executed.

Weppler received $15,000 from Stansbury and an additional $5,000 from Ash. Weppler did not report the amounts as income on any tax return. Ash and Stansbury received substantial commissions. Weppler withdrew $23,000 of the net surrender value of approximately $28,000. Weppler failed to repay the $15,000 to Stansbury.

Stansbury instituted proceedings for repayment of the loan. The parties stipulated that the written agreement did not constitute a promissory note. The trial court conceded that some facts of the transaction "appear[ed] suspicious;" however, the court found that an enforceable contract existed and awarded the judgment.

Weppler appealed resulting in the previous decision by this Court on October 22, 1996. In that appeal, this Court addressed Weppler's allegations that Stansbury committed fraud in procuring the agreement for the loan and that the agreement was void as against public policy. As noted above, the judgment was affirmed as to the $15,000 loan.

While the first appeal was pending, Weppler reported the transactions by filing a complaint with the Indiana Department of Insurance concerning both Stansbury and Ash. As a result, on August 23, 1996, an agreed entry was executed between the Department and Ash resolving a Statement of Charges filed by the Department alleging violation of the Indiana insurance laws. Also, Stansbury and the Department executed an agreed entry filed with the Department on October 1, 1996. Stansbury pleaded "no contest" to the Statement of Charges with the caveat that he did not admit to "knowingly violating any State law or regulations regarding the sales of insurance." Stansbury agreed to pay a civil fine in the amount of $250.

On December 9, 1996, Weppler filed with the trial court a motion for relief from the judgment. The trial court's denial of that motion forms the basis of the present appeal. Weppler alleged that, based upon the agreed entries between Ash and Stansbury and the Department, additional evidence existed to support his contentions at the trial. Specifically, Weppler alleged that the trial court "should now be able to conclude that Weppler, Stansbury and Ash entered into an agreement constituting a conspiracy to submit false premium payment claims to [the insurer] in order to receive and split commissions, and that the agreement should be void as against public policy[.]"

Stansbury opposed the motion. A hearing was held and evidence was presented. On January 22, 1997, the trial court issued its order denying Weppler's motion for relief. This appeal ensued.

Weppler presents one issue for review: whether the trial court abused its discretion by denying Weppler's motion for relief from the judgment based upon T.R. 60(B)(8). Weppler contends that the agreed entries support his original theory that the contract is void as against public policy; thus, the trial court should exercise its equitable powers and vacate the original judgment.

In pertinent part, Ind. Trial Rule 60(B) provides:

Mistake--Excusable neglect--Newly discovered evidence--Fraud, etc. 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 ...