439 N.E.2d 732 | Ind. Ct. App. | 1982
Lead Opinion
Appellant Daniel K. Houston appeals the trial court’s grant of appellee Lewis T. Wireman’s motion to correct error and the ensuing order vacating the dismissal of Wireman’s complaint.
The trial court sua sponte entered an order dismissing Wireman’s complaint on May 19, 1981. Wireman filed a “Motion to Vacate” on June 8, 1981 which the trial court denied on July 23, 1981. Then, on August 10, 1981, Wireman filed a “Motion to Correct Errors” which the trial court subsequently granted and ordered Wire-man’s complaint reinstated. This appeal ensued.
We reverse.
In dismissing Wireman’s complaint the trial court was apparently proceeding under Ind. Rules of Procedure, Trial Rule
We have previously held any error discovered or discoverable with due diligence within the period for filing a timely motion to correct error must be preserved for appeal by the filing of such a motion as opposed to a T.R. 60(B) motion.
Rather than filing a praecipe, Wireman elected to file a denominated “Motion to Correct Errors” on August 10, 1981. After argument, the trial court granted the motion on December 14, 1981 and ordered the complaint reinstated. Houston then timely perfected this appeal.
Even as we treat a denominated T.R. 60(B) motion filed within the time for
The after-sixty-day motion filed by Wireman suffers from the deficiency of raising issues which were unquestionably discovered or discoverable. Therefore, we treat it not as a T.R. 60 motion but as a T.R. 59 motion as it was denominated. As such, it was not timely. The court’s judgment of dismissal was entered May 19,1981 while the motion to correct errors was filed August 10, 1981, eighty-three (83) days later.
Therefore, we are compelled to find the trial court committed reversible error in granting the August motion to correct error and the specific relief of ordering the cause reinstated.
The action of the trial court is reversed and this cause remanded with instructions to vacate the order granting the motion to correct error and reinstating the cause.
. Ind. Rules of Procedure, Trial Rule 60(B).
. On July 28, 1982 the Third District of this court handed down its decision in Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., (1982) Ind. App., 438 N.E.2d 16. In that case, the trial court dismissed the cause for lack of prosecution on August 12, 1980. On September 12, 1980 the plaintiff filed a T.R. 60(B) motion seeking reinstatement. The motion was denied on October 3, 1980, whereupon plaintiff, on December 2, 1980, filed a T.R. 59 motion addressed to the ruling on the T.R. 60(B) motion. The trial court treated the T.R. 60(B) motion as a T.R. 59 motion and therefore denied the December 2, 1980 motion as untimely. This court reversed. The majority concluded that, while a party may appeal directly from a denominated motion to reinstate filed within the limitations of T.R. 59(C) without further motion, the party does not forfeit the right to appeal by filing a timely T.R. 59 motion following the ruling on the motion to reinstate and then awaiting the ruling on the motion to correct error before filing the praecipe for appeal.
There is arguable merit to this position. However, contrary to the majority’s conclusion, the Supreme Court has spoken. By rule it has stated a motion to correct error must be addressed to any error “claimed to have occurred prior to the filing of the motion.” T.R. 59(D)(1). Furthermore, to the extent T.R. 60(B) provides grounds for relief not explicitly enumerated as grounds for relief in T.R. 59(A), it has explicitly incorporated the grounds by the provisions of T.R. 59(A)(9). Thus, the reasonable time envisioned by T.R. 60(B) excludes any error which is discovered or is discoverable by due diligence within the time limitations of T.R. 59(C). Hence, the provisions of T.R. 41(F) and T.R. 55(C), which provide a dismissal with prejudice and a judgment by default “may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B),” must be read in the context of the scheme presented by T.R. 59 and T.R. 60 so that relief may be appropriate under T.R. 60 only so far as the basis for relief was not discovered or was not discoverable with due diligence within the limitations for a timely T.R. 59 motion. See Logal v. Cruse, (1977) 267 Ind. 83, 86, 368 N.E.2d 235, 237, where our supreme court recognized the position of this court expressed in Warner v. Young America Fire Dep’t., (1975) 164 Ind.App. 140, 326 N.E.2d 831, that only grounds which could not have been included in a T.R. 59 motion can be advanced in a T.R. 60(B) motion, and 4 Harvey and Townsend, Indiana Practice 222 (1971), who, in discussing T.R. 60, state:
“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.”
Requiring a T.R. 59 motion which is directly appealable indeed implements the purpose of T.R. 1 as opposed to allowing a party to substitute, at his option, a T.R. 60(B) motion followed by a T.R. 59 motion with its ensuing delays. Therefore, while we acknowledge the merit of Pre-finished Moulding & Door, Inc., we decline to follow it and await direction from our supreme court as it resolves the conflict. Cf. Mathis v. Morehouse, (1982) Ind. App., 433 N.E.2d 814; Snider v. Gaddis, (1980) Ind. App., 413 N.E.2d 322.
Dissenting Opinion
dissenting.
I dissent.
The dismissal of plaintiff’s lawsuit was clearly erroneous. T.R. 41(E) requires the trial court to conduct a hearing prior to entering a dismissal. At such hearing the plaintiff is entitled to demonstrate good cause for his failure to prosecute or otherwise comply with the Rules of Trial Procedure. No hearing was scheduled or conducted. Appellee properly preserved and presented the error by resort to Trial Rule 60. See State ex rel. Janesville Auto Transport Co. v. Superior Court of Porter County (1979) Ind., 387 N.E.2d 1330.
The procedural posture of this appeal in light of the result reached indicates that the permutations possible from the application or misapplication of Trial Rules 59 and 60 are virtually endless. It is another instance of the trap baited for the conscientious and careful practitioner who is not sufficiently clairvoyant to anticipate which particular appellate inconsistency will attach to his particular assertion of error. If all the words written by our appellate courts concerning Trial Rule 59 vis a vis Trial Rule 60 were placed end to end, they would stretch to nowhere.
In recent years our Supreme Court and the four geographical districts of this Court have rendered numerous decisions with respect to the interrelationship of the two rules, few of which may be harmonized or reconciled; neither have the individual judges and justices been consistent or in agreement. See Breeze v. Breeze (1981) Ind., 421 N.E.2d 647 (opinion by Hunter, J. in which DeBruler, Givan, Pivarnik & Prentice, JJ. concur); P-M Gas & Wash Co., Inc. v. Smith (1978) 268 Ind. 297, 375 N.E.2d 592 (opinion by Hunter, J. in which DeBruler & Prentice, JJ. concur and Givan, J. concurs in result with separate opinion in which Pivarnik, J. concurs); State v. DePrez (1973) 260 Ind. 413, 296 N.E.2d 120 (opinion by Arter-burn, C.J. in which DeBruler, Givan, Hunter & Prentice, JJ. concur), reh. denied, 261 Ind. 55, 300 N.E.2d 341; Indiana State Personnel Bd. v. Wilson (1971) 256 Ind. 674, 271 N.E.2d 448 (Per Curiam, DeBruler, J. dissents without opinion); Snider v. Gaddis (1st Dist. 1980) Ind. App., 413 N.E.2d 322 (opinion by Ratliff, J. in which Neal, J. concurs and Robertson, J. dissents with separate opinion), trans. denied; Irmiger v. Irmiger (1st Dist. 1977) 173 Ind.App. 519, 364 N.E.2d 778 (opinion by Lowdermilk, J. in which Robertson, J. concurs and Garrard,
Although P-M Gas & Wash Co., Inc. v. Smith, supra, did much to clarify one aspect of the procedural avenues available to a prospective party to an appeal, the practicing bar remains without guidance in many other areas. It is time now for our appellate tribunals to adopt or effect procedures which permit resolution of genuine legal issues on appeal. It must not be our function to make that resolution unduly complicated, expensive, burdensome and time consuming.
