Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967

Plaintiff LLC sought environmental removal costs against Mitchell and related entities for alleged dumping at an East 10th Street site.
Mitchell moved for partial summary judgment in his personal capacity, arguing no personal liability under COR doctrine or veil-piercing theories; LLC did not respond to that motion.
Mitchell's motion was granted January 11, 2010; LLC later moved under Trial Rule 54(B) and Trial Rule 56 to vacate/reconsider based on newly discovered evidence (Susan Johnson statement).
The trial court vacated the prior partial summary judgment order, relying on new post-order evidence and treating the order as non-final and subject to revision.
Mitchell argued the court abused Rule 56(C) timelines and the Desai/Borsuk line limiting late evidence; the court disagreed and granted vacatur.
On appeal, the Indiana Supreme Court held the court may revise a non-final summary-judgment order only using materials that were properly before it when the order was entered, and that Rule 60(B) relief applies to non-final orders under the 2008 amendment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether post-entry evidence may support vacating a non-final summary judgment order	Mitchell.	Mitchell.	No; post-entry evidence cannot form the basis to vacate a non-final order.
Whether Rule 60(B) relief applies to non-final orders after 2008 amendment	LLC.	Mitchell.	Yes; Rule 60(B) relief may apply to non-final orders.

Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160 (Ind.Ct.App.1993) (trial court may reconsider a non-final order)
Pond v. Pond, 700 N.E.2d 1130 (Ind.Ct.App.1998) (in fieri actions allow reconsideration of orders)
State ex rel Rans v. St. Joseph Super. Ct. No. 2, 201 N.E.2d 778 (Ind.1964) (vacation/modification of rulings within same term)
Clouser v. Mock, 155 N.E.2d 745 (Ind.1959) (broad power to modify judgments during term)
Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind.2005) (properly designating evidence under Rule 56(C) precludes late filings)
HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind.2008) (clarified Rule 56 post-deadline affidavits; Desai lineage discussed)
Desai v. Croy, 805 N.E.2d 844 (Ind.Ct.App.2004) (bright-line rule restricting late Rule 56 filings)
Allstate Insurance Co. v. Fields, 842 N.E.2d 804 (Ind.2006) (Rule 60(B) relief not applied to interlocutory orders under prior rule)
Stonger v. Sorrell, 776 N.E.2d 353 (Ind.2002) (fraud upon the court under Rule 60(B) discussed)
Desai v. Croy, 805 N.E.2d 844 (Ind.Ct.App.2004) (described 30-day Rule 56(C) timing requirements)