Case Information
*1 FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES: MICHAEL L. CARMIN DONN H. WRAY GREGORY A. BULLMAN NICHOLAS K. GAHL Andrews Harrell Mann Carmin & Parker, P.C. Stewart & Irwin, P.C.
Bloomington, Indiana Indianapolis, Indiana
STEPHEN SCHRUMPF Brown Deprez & Johnson, P.A. Shelbyville, Indiana IN THE
COURT OF APPEALS OF INDIANA
JAMES T. MITCHELL, )
)
Appellant, )
) vs. ) No. 53A01-1112-PL-593
) TH AND THE BYPASS, LLC, and )
ELWAY, INC., )
)
Aрpellees. ) APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Frances G. Hill, Judge Cause No. 53C06-0812-PL-3285
December 4, 2012
OPINION ON REHEARING
NAJAM, Judge
James T. Mitchell has filed a petition for rehearing asking that we reconsider our holding that the trial court did not abuse its disсretion when it vacated its interlocutory partial summary judgment for Mitchell under Indiana Trial Rule 54(B). We grant Mitchell’s petition to address his contention that our opinion misunderstands and mischaracterizes his argument. We think not. After careful consideration, we conclude that on rehearing Mitchell attempts to adjust and supplement his original argument, which he cannоt do. Having reviewed the original briefing, we conclude that we correctly decided the question presented in the first instance on appeal, and, therefore, we affirm оur opinion in all material respects.
Among his numerous contentions on rehearing, Mitchell alleges that we allowed the abuse of discretion standard of review to dictatе the outcome and to create “bad law.” Pet. for Reh’g at 7. Mitchell also criticizes our opinion for its reliance on the plain meaning of Trial Rule 54(B). He further criticizes оur opinion for having not taken the “proactive step” of setting forth a list of specific factors that trial judges should consider when exercising their discretion to accеpt or reject new evidence tendered with a Rule *3 54(B) motion to vacate an interlocutory order. Id. at 5. And Mitchell chides us for not adopting federal practice on how a trial court should handle new evidence when reconsidering a partial summary judgment under federal Rule 54(b).
In his Appellant’s Brief, Mitchell acknowledged that abuse of discretiоn is the correct standard of review in this case, that this court will reverse the judgment only if it goes against the logic and effect of the facts or the trial court has misinterpreted thе law, that we will not reweigh the evidence, and that we will give the trial court’s order substantial deference. Appellant’s Br. at 6. But Mitchell incorrectly tied the standard of review to “а motion for relief from judgment under Trial Rule 60(B).” Id. We applied the standard of review to the trial court’s decision to revise its interlocutory partial summary judgment under Trial Rule 54(B), which was the quеstion presented on appeal.
Mitchell argued in the first instance and again on rehearing that the “subject to revision” provision in Trial Rule 54(B) is trumped by the “hard and fast” time limits on the designation of evidence under Trial Rule 56, see id. at 7, and he further maintains on rehearing that we should incorporate the due diligence and newly discovered evidence prоvisions of Trial Rule 60(B) into Trial Rule 54(B). We concluded that where, as here, a ruling is non-final and remains in fieri, a trial court has inherent power to reconsider a previous ruling and to consider a repetitive motion for summary judgment, including an *4 interlocutory partial summary judgment order, when presented with newly discovered evidence. We also concluded that a mоtion to revise an interlocutory order under Trial Rule 54(B) is not equivalent to a motion for relief from judgment under Trial Rule 60(B). We harmonized Rule 54(B) with Rule 56(C) and Rule 60(B), concluding that these rules address different circumstances and serve different purposes. In sum, we understood Mitchell’s argument, addressed the argument, and rejected the argument.
In our opinion we noted that the federal courts have consistently permitted the
reconsideration of interlocutory partial summary judgments under federal Rule 54(b).
Mitchell now complains that we did not go far enough, thаt federal courts have read the
due diligence requirement into the federal rule, and that we failed to “interpret[] the
actual standard that federal courts follow when faced with new evidence submitted with
[federal] Rule 54(b) motions.” Pet. for Reh’g at 3. But Mitchell cited no federal case law
in either his Appellant’s Brief or his Reply Brief. Having missed the oppоrtunity to
present that argument on appeal, it is well-settled that Mitchell may not do so for the first
time in his petition for rehearing. See Clark County Drainage Bd. v. Isgrigg, 966 N.E.2d
678, 680 (Ind. Ct. App. 2012); Van Prooyen Builders, Inс. v. Lambert,
Finally, Mitchell cоmplains that we failed to explain adequately what standards a
trial court should consider when it relies on newly discovered evidence as grounds to
revise an interlocutory partial summary judgment under Trial Rule 54(B). Rule 54(B)
does not enumerate the factors a trial court should consider in deciding whether to revise
an interlocutory order, and this court declines Mitchell’s invitation to fabricate and
incorporate a list of factors into the Rule. Rather, Rule 54(B) codifies the well-
established common law rule that a trial court has inherеnt power to reconsider, vacate, or
modify any previous order so long as the case has not proceeded to final judgment. See
Wabash Grain, Inc. v. BankOne,
In sum, we understood and decided this appeal based on the facts and argument originally presented by the parties. Our opinion applying Trial Rule 54(B) recognizes the inherent distinction between an interlocutory order and a final judgment and underscores that a party who wants to avoid the risk that аn interlocutory order will be revised “at any time” under Rule 54(B) should ask the court to enter the order as a final judgment. Without reweighing the evidence, we are satisfied that the factors the trial court identified *6 in its decision to set aside the previous interlocutory order are more than sufficient to demonstrate that the court did not abuse its discretion. As such, we affirm our opinion.
Affirmed.
RILEY, J., and BARNES, J., concur.
Notes
[1] In his Appellant’s Brief, Mitchell repeatedly asserted that the “trial court erred when it relied on Trial Rule 54(B),” Appellant’s Br. at 6; that “[n]othing in Trial Rule 54(B) allows the trial court to consider evidence that [the LLC originally] failed to designate,” id. at 6-7; that “Trial Rule 54(B) . . . does not allow the trial court to consider belatedly[ ]designated evidence,” id. at 8; that the LLC’s reliаnce on Johnson’s testimony “fell far below the showing of ‘due diligence’ that was required for them to designate new evidence under Rule 60(B),” id. at 13; and that, “[w]hen a party asks a trial court to reconsider a judgment based on newly[ ]designated evidence[] it must show that the evidence could not have been discovered ‘by the exercise of due diligence,’” id. (citing Ind. Trial Rule 60(B)). On rehearing, Mitchell tweaks his original argument to assert, for the first time, that Rule 54(B) contains its own implied provision for the consideration of newly discovered evidence. Pet. for Rеh’g at 3-4, 8. We anticipated this argument when we stated that “Mitchell’s interpretation [of Rule 60(B)] would, in effect, add a due diligence requirement to the subject-to-revision provision applicable to interlocutory orders under Trial Rule 54(B), a requirement which is simply not there.” Slip op. at 10. But whether we consider Mitchell’s original argument or its iteration on rehearing, our opinion remains the same: the trial court did not abuse its discretion when it relied on Trial Rule 54(B) to vacate its interlocutory partial summary judgment.
[2] Mitchell also urges us to adopt thе reasoning from Liggett v. Young,
[3] Mitchell also contends on rehearing that the evidence in question—Johnson’s testimony—was not, in fact, newly discovered evidence. This argument is, in effect, a restatement of Mitchell’s contention that the LLC did not act with due diligence in obtaining and designating Johnson’s testimony during the original partial summary judgment proceedings. For the reasons stated in our original opinion, this argument must fаil.
[4] In our opinion, we concluded that due diligence was one consideration the trial court properly considered but was not necessarily the controlling factor.