In this appeal we address whether evidence obtained after entry of an order granting a motion for partial summary judgment may form the basis for vacating that order on grounds that a non-final order is subject to revision at any time before entry of a final judgment. We conclude it may not. We also address whether relief from judgment under our Trial Rules is limited only to final judgments. We conclude it is not.
Facts and Procedural History
Asserting a claim for an environmental legal action (“ELA”), see Ind.Code §§ 13-
On June 30, 2009, James T. Mitchell in his individual capacity filed a motion for partial summary judgment on grounds that he was not personally liable for LLC’s damages and that neither the responsible corporate officer doctrine nor the doctrine of piercing the corporate veil was applicable in imposing on him any personal liability. In support of his motion Mitchell designated several exhibits including his affidavit which alleged in pertinent part:
I never individually operated a dry cleaning business at Plaintiffs real estate.My involvement in the dry
cleaning business at Plaintiffs real estate was at all times as an officer or employee of J.T. Mitchell, Inc.... I never dumped, nor was I at any time involved in any capacity in the dumping of chemical waste on Plaintiffs real estate .... I never caused or contributed, to the release of a hazardous substance into the surface or subsurface soil or ground water at Plaintiffs real estate.
App. at .40. LLC did not file a response to Mitchell’s motion. Instead on September 3, 2009 LLC filed its own motion for partial summary judgment seeking to impose individual liability on Mitchell. In support of the motion LLC designated several exhibits none of which disputed the material substance of Mitchell’s affidavit. See App. at 82-131. After conducting, a hearing the trial court entered an order on January 11, 2010 granting Mitchell’s motion for partial summary judgment and denying LLC’s motion. The order declared in part:
There is. no evidence that James T. Mitchell caused a spill of hazardous waste or other violation of the ELA or Indiana dumping statutes ... for the purposes of imposing personal liability as a corporate officer for J.T. Mitchell, Inc. under the theory of responsible corporate officer doctrine[.] There is no evidence that the actions of James T.Mitchell in the daily management of the dry cleaning business and specifically in the management of hazardous waste chemicals constituted a violation of the ELA or the Indiana dumping statutes.
App. at 159.
About a year later LLC obtained a recorded statement from Susan E. Johnson, a former Mitchell employee who had previously worked at the dry cleaning facility on East 10th Street. According to Johnson, sometime around 1988 or 1989 there was a spill at the facility of a dry cleaning solvent—perchloroethylene
Relying on provisions of Indiana Trial Rule 54(B), on June 3, 2011, LLC along with Defendant Elway, Inc. (collectively “LLC”) filed a joint motion to vacate the trial court’s January 11, 2010 order entering partial summary judgment in Mitchell’s favor. LLC contended that newly discovered inculpatory evidence established Mitchell’s individual liability. LLC filed a brief in support of its motion and attached Johnson’s statement and deposition as exhibits. While not refuting the veracity of the allegations in LLC’s exhibits, Mitchell responded with a memorandum in opposition arguing in part that pursuant .to Indiana Trial Rule 56 newly discovered evidence must be properly designated and timely submitted—neither of which, according to Mitchell, was done in this case. After conducting a hearing the trial court entered an order granting LLC's motion to vacate. The order declared in part the “[ojrder granting partial summary judgment was a non-final order, [and] ... therefore is subject to revision at any time before entry of a final judgment.” App. at 16. The Court of Appeals granted Mitchell’s petition for interlocutory review and affirmed the judgment of the trial court. Mitchell v. 10th and The Bypass, LLC,
Standard of Review
Our standard of review in evaluating a trial court’s reconsideration of its prior ruling is abuse of discretion. In re Estate of Hammar,
Discussion
I.
This ease requires us to explore the interplay between Trial Rule 54(B)-Judg-
When more than one [1] claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(emphasis added). The highlighted portions of Rule 54(B) represent this Court’s recognition, through its rule making authority, of a well-settled practice in this state, namely: “We have long and consistently held a trial court has inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment.” Haskell v. Peterson Pontiac GMC Trucks,
In this case the trial court’s January 11, 2010 order granting Mitchell’s motion for partial summary judgment was not final. The parties did not request and the trial court did not sua sponte “direct the entry of a final judgment,” there was no “express determination that there is no just reason for delay[,]” and there was no “express direction for the entry of judgment.” T.R. 54(B). Thus, relying on settled authority as well as the express language of Trial Rule 54, the trial court vacated its January 11, 2010 order. Nonetheless, in so doing the trial court considered evidence tendered several months after its ruling granting partial summary judgment in Mitchell’s favor. Trial Rule 56 governs motions for summary judgment and provides in pertinent part:
(C) Motion and proceedings. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less' than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions,answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.
Apart from the text of Rule 56 itself, our case authority has established the procedure governing the admissibility of evidence that may be considered on a motion for summary judgment. In Borsuk v. Town, of St. John,
When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(1),[4 ] or filing an affidavit under Trial Rule 56(F),[5 ] the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period. Since th[e] affidavit [submitted by the Town] was untimely filed, the trial court improperly admitted it into evidence. Even further, since the 30-day period lapsed with no filings, the trial court should not have admitted any of the Town’s subsequent briefs or affidavits.
Id. at 124 n. 5 (citing Desai v. Croy,
Three years later, in HomEq Servicing Corp. v. Baker,
Now firmly entrenched as an article of faith in Indiana law, this bright-line rule provides clarity and certainty to an area of the law that for too long lacked both. But how can the dictates of Rule 54(B) “subject to revision at any time” be reconciled with the apparently conflicting “thirty (30) day[ ]” time limit imposed by Rule 56(C)? Where trial rules are in conflict we apply the principles of statutory construction under which “the Rules of Trial Procedure are to be construed together and harmoniously if possible.” In re Marriage of Carter-McMahon,
Here the trial court revised its previous order granting partial summary judgment in Mitchell’s favor. Under other circumstances this would not be problematic. However, by understandably but mistakenly misinterpreting the law, the trial court abused its discretion in relying on evidence not properly before the court at the time the previous order was entered.
II.
Although LLC’s argument before the trial court as well as on appeal focused primarily on Trial Rule 54(B), LLC also contends it is entitled to relief under Trial Rule 60(B). While doubting its applicability, LLC nonetheless declares: “Assuming, arguendo, that T.R. 60 applies to the consideration of the newly discovered evidence on a motion for summary judgment ... all the elements required to consider newly discovered evidence under T.R. 60(B)(2) are satisfied.” App. at 172; see also Br. of Appellee at 16. Declining to address LLC’s claim on the merits the trial court concluded: “The law is clear that T.R. 60(B) is only applicable to final judgments.” App. at 17 (citation omitted). And as we have discussed the trial court’s January 2010 order was not final. Supporting its conclusion, the trial court relied on Allstate Insurance Co. v. Fields,
However, Rule 60(B) was amended in 2008 effective January 1, 2009, which is the current version of the Rule, and the Rule in effect at the time LLC filed its motion. The 2008 amendment deleted the word “final” such that the rule now provides in relevant part, “the court may relieve a party or his legal representative from a judgment, including a judgment by default. ...” Thus, the express language of the rule no longer limits relief only from a “final” judgment as was the case when we decided Allstate. In light of the 2008 amendment, LLC is not precluded from seeking Trial Rule 60(B) relief from the trial court’s January 2010 order on grounds that the order was not a final judgment.
Conclusion
We reverse the judgment of the trial court and remand this cause for further proceedings.
Notes
. The statute provides in pertinent part:
A person may, regardless of whether the person caused or contributed to the release of a hazardous substance or petroleum into the surface or subsurface soil or groundwater that poses a risk to human health and the environment, bring an environmental legal action against a person that caused or contributed to the release to recover reasonable costs of a removal or remedial action involving the hazardous substances or petroleum.
I.C. § 13-30-9-2.
. The statute provides in pertinent part:
A landowner on whose land garbage or other solid waste has been illegally dumped without the landowner’s consent may, in addition to any other legal or equitable remedy available to the landowner, recover from the person responsible for the illegal dumping: (1) reasonable expenses incurred by the landowner in disposing of the garbage or other solid waste; and (2) reasonable attorney’s fees.
I.C. § 13—30—3— 13(d).
. Perchloroethylene is “a colorless nonflammable toxic liquid ... used often as a solvent in dry cleaning and for removal of grease from metals.” Merriam-Webster's Collegiate Dictionary 919 (11th ed. 2005).
. The Rule provides:
For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.
. The Rule provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
. LLC's Trial Rule 60(B) claim essentially focused on the "newly discovered evidence” provision of Rule 60(B)(2) which requires the exercise of "due diligence.” Both sides argued their respective positions on this point. But as we have discussed the trial court did not reach the merits. LLC makes no claim, and we express no opinion, on whether LLC might also seek relief under the provision of Rule 60(B)(3) for fraud upon the court. See Stonger v. Sorrell,