ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Karl L. Mulvaney P. Gregory Cross
Nana Quay-Smith Muncie, Indiana
Candace L. Sage
Indianapolis, Indiana Michael J. Alexander
Muncie, Indiana
Donald K. McClellan
Muncie, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 18S04-0602-CV-66
OUTBACK STEAKHOUSE OF FLORIDA,
INC., TONCREDI, INC., AND JOHN BROZ,
D/B/A OUTBACK STEAKHOUSE OF
MUNCIE,
Appellants (Defendants below),
v.
DAVID D. MARKLEY AND
LISA K. MARKLEY,
Appellees (Plaintiffs below).
_________________________________
Appeal from the Delaware Circuit Court, No. 18C01-9907-CP-284
The Honorable Joel D. Roberts, Special Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 18A04-0401-CV-13
_________________________________
November 8, 2006
Boehm, Justice.
The plaintiffs’ response to the defendants’ discovery request failed to identify a critical
witness whose identity was known to plaintiffs’ counsel. Under the circumstances of this case
we conclude that this omission, in concert with other acts and omissions attributable to plaintiffs’
counsel, constituted misconduct requiring a new trial.
Facts and Procedural History
On the evening of July 21, 1997, William Whitaker attended the “grand opening” of Out-
back Steakhouse in Muncie. There was conflicting testimony as to Whitaker’s level of intoxica-
tion when he left Outback between 9:00 and 9:30 pm. After leaving Outback, Whitaker went to
Van’s, a bar in Muncie, where he was served one or more drinks. Testimony conflicted as to
whether the drinks at Van’s contained alcohol. 1 At approximately 11:00 pm, David and Lisa
Markley were severely injured when the motorcycle they were riding was struck by Whitaker’s
car.
The Markleys retained attorneys Michael J. Alexander and Donald McClellan, who
shared an office in Muncie. Patrice Roysdon had been a waitress at the grand opening but left
Outback’s employ soon thereafter. One or two months after the opening, Roysdon went to Alex-
ander’s office at Alexander’s request and told Alexander and his investigator that Whitaker was
visibly intoxicated when she served him on the evening of the collision. 2
In July 1999 the Markleys sued Outback Steakhouse of Florida, Inc. and John Broz, d/b/a
Outback Steakhouse of Muncie (collectively “Outback”) 3 alleging a common law claim that
Outback had negligently served alcohol to an intoxicated person and statutory violations that
Outback had knowingly served alcohol to a habitual drunkard in violation of Indiana Code sec-
tion 7.1-5-10-14 (2004) and had knowingly served alcohol to a visibly intoxicated person in vio-
lation of Indiana Code section 7.1-5-10-15.5 (2004).
1
The bartender and waitress at Van’s testified that they perceived that Whitaker had had too much to
drink when he arrived at Van’s and served him only Diet Coke. Whitaker testified that at Van’s he drank
one or two glasses of Crown Royale and Coke and was confident he knew the difference between that
cocktail and a soft drink. In Part II we explain why we conclude the jury rejected Whitaker’s testimony
on this point.
2
The record does not make clear whether Roysdon was still in Outback’s employ at the time of this visit.
3
The relationship between these defendants is not clear from the record. The complaint alleges that the
defendants were “the owners and operators” of the restaurant in question. No issue is raised on appeal as
to the proper parties or the responsibility of these defendants for the actions of the restaurant employees at
the grand opening.
2
In 1999 Outback served interrogatories on the Markleys. Interrogatory 12 read:
State specifically each and every fact upon which you rely to support your allega-
tion under I.C. § 7.1-5-10-15.5 that these Defendants, and each of them, provided
alcoholic beverages to William J. Whitaker with actual knowledge that he was
visibly intoxicated, and the names and addresses of those persons possessing
knowledge of such facts.
The Markleys’ response identified several individuals who attended the grand opening but did
not mention Roysdon. It did not allege that Whitaker displayed any symptoms of intoxication or
allege any other facts specific to Whitaker. Rather, it described lack of control over the amount
of alcohol consumed by all attendees and made several other factual claims that any server at the
opening would presumably have been in a position to confirm or deny. It concluded: “this Inter-
rogatory will be supplemented as discovery proceeds.” 4
In 2001, Outback deposed Roysdon. Roysdon testified in the deposition that Whitaker
was not visibly intoxicated at Outback. She was not asked whether she had communicated with
the plaintiffs’ attorneys. Alexander was not present at the deposition, and the Markleys were
represented by McClellan alone. McClellan did not challenge Roysdon’s testimony that
Whitaker seemed “fine.”
The trial first started in 2002, but circumstances unrelated to Roysdon produced a mis-
trial. A person who had not been identified as a witness testified for the plaintiff, and a juror
passed a note to the judge stating that the juror knew the witness and the witness was a “patho-
4
The entire response was:
The manner in which alcohol was provided to guests at the grand opening was that alco-
hol was initially going to be given away to all of the guests at the grand opening of the
Outback, however, it was later determined to charge 10¢ for the specialty drinks and tubs
of beer on ice were left in the general area for persons to consume and the employees of
the Outback did not actually concern themselves with collecting the 10¢ for the specialty
drinks and the personnel of the Outback serving the grand opening were advised to en-
sure that none of the guests had an empty glass, provide alcoholic beverages as requested
whether the person was in the waitress’ or servers’ section or not. Persons that would
have information concerning this again are, William J. Whitaker, Scott and Kimberly
Forgey, Attorneys at Law, 220 East Main Street, Muncie, Indiana, Cheryl Crowder, 220
East Main Street, Muncie Indiana, Jeff Ferris, 413 West 11th Street, Alexandria, Indiana,
Richard Dailey, Eaton, Indiana, Sally and Jim Barnes, 2355 West Warwick, Muncie,
Indiana, Bruce Munson, 322 North Walnut Street, Muncie, Indiana, and this Interrogatory
will be supplemented as discovery proceeds.
3
logical liar.” Roysdon had been identified as a witness by Outback but not by the plaintiffs. As
a result of the mistrial, she did not testify at the first trial.
A second trial began in June 2003. Shortly before the second trial began, the court
granted summary judgment to Outback on the habitual drunkard claim, leaving for trial only the
visible intoxication claims. Outback subpoenaed Roysdon to testify as a defense witness. In its
opening statement, Outback told the jury Roysdon would testify that Whitaker was not visibly
intoxicated and that no witness would be produced who would testify to the contrary. On the
Friday of the first week of the trial, still in the presentation of the Markleys’ case-in-chief, Roys-
don called Alexander’s office and arranged an appointment for that Sunday. On Sunday, Roys-
don came to Alexander’s office and told him she had lied in her 2001 deposition and that she
planned to testify at trial that Whitaker was visibly intoxicated when she served him. Roysdon
had not communicated her change of story to Outback or its attorneys, and Alexander did not
inform the trial court or Outback of this meeting or seek to supplement the plaintiffs’ answer to
Interrogatory 12.
When trial resumed on Monday, Alexander called Roysdon as a witness. Although the
plaintiffs had not listed Roysdon as one of their witnesses, Outback did not object to Roysdon’s
testifying in the plaintiffs’ case-in-chief. Roysdon testified that Whitaker was visibly intoxicated
at Outback, that she continued to serve him after she realized he was intoxicated, and that she felt
guilty and responsible for the collision. On cross-examination Outback impeached her with
statements from her 2001 deposition. Roysdon responded that she lied when she gave her 2001
deposition, that she was afraid when she gave her 2001 statements, and that she wanted to tell the
truth at trial regardless of the consequences to her. Outback did not ask that Roysdon’s testi-
mony be stricken or that a continuance be granted in response to her decision to recant her depo-
sition testimony. The jury returned a verdict valuing the Markleys’ damages at $60 million. It
allocated 65% of the fault to Outback, 35% to Whitaker, and 0% to Van’s. The trial court ac-
cordingly entered judgment against Outback in the amount of $39 million.
The trial concluded on June 25, 2003. On July 30 Outback filed a motion to correct er-
rors alleging a number of grounds, one of which was a claim that Roysdon’s testimony either at
trial or in deposition was perjured, and this alone was a ground for a new trial. Outback also
4
moved on July 30 for a new trial under Trial Rule 60(B) without specifying whether it was pro-
ceeding under 60(B)(2) or 60(B)(3). Outback sought and received leave to conduct post-trial
discovery under Rule 60(D) to explore the shift in Roysdon’s testimony from her 2001 deposi-
tion to her appearance at trial. The plaintiffs responded, characterizing Outback’s motion as
seeking a new trial under Trial Rule 60(B)(3) for “fraud, misrepresentation, or misconduct.”
Next, on August 14, after the matters described in Part IV of this opinion came to light through a
July 31, 2003 newspaper article, Outback filed a second motion for a new trial based on newly
discovered evidence discussed in Part III, which is unrelated to Roysdon’s testimony. On Sep-
tember 2, 2003, Outback took a post-trial deposition of Roysdon in which she for the first time
revealed her 1997 visit to Alexander’s office. Outback filed on October 6, 2003 a “supplemen-
tation” to its earlier motions based on Roysdon’s disclosure of her 1997 visit with Alexander.
The trial court denied all post-trial relief. Outback appealed on several grounds seeking a
new trial and an order compelling the Markleys and/or Alexander and McClellan to pay Out-
back’s trial and post-trial attorney fees. The Court of Appeals affirmed. Outback Steakhouse v.
Markley, 831 N.E.2d 228, 241 (Ind. Ct. App. 2005). We granted transfer. Outback Steakhouse
v. Markley, No. 18S04-0602-CV-66, 2006 Ind. LEXIS 144 (Ind. Feb. 21, 2006).
I. Relief from a Judgment for Misconduct
A grant of equitable relief under Indiana Trial Rule 60 is within the discretion of the trial
court. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002) (citing Wolvos v. Meyer, 668 N.E.2d
671, 678 (Ind. 1996)). Accordingly, we review a trial court’s ruling on Rule 60 motions for
abuse of discretion. Id.
A. The Prerequisites of Indiana Trial Rule 60(B)(3)
Indiana Trial Rule 60(B)(3) enables a court to grant relief from an otherwise final judg-
ment for “fraud, misrepresentation, or misconduct” of an adverse party. It is worded identically
to Federal Rule of Civil Procedure (“FRCP”) 60(b)(3). For this reason Indiana courts routinely
look to both Indiana and federal authority to interpret Indiana Rule 60(B)(3). Stonger, 776
N.E.2d at 356-57. Neither the federal nor the Indiana rule defines “fraud, misrepresentation, or
misconduct.” The federal advisory committee explained in 1946 that these grounds for relief
5
from a judgment were available at common law, and the rule was intended to simplify and regu-
larize the procedures for seeking relief but not to change the grounds for relief. See FRCP 60(b)
advisory committee’s note (1946).
We recently held that “misconduct” under Indiana’s Rule 60(B)(3) can be based on a vio-
lation of the Code of Professional Responsibility, even if the conduct at issue does not violate the
rules of civil procedure. See Allstate Ins. Co. v. Watson, 747 N.E.2d 545, 548 (Ind. 2001); S-
mith v. Johnston, 711 N.E.2d 1259, 1264 (Ind. 1999). Federal authority interpreting FRCP
60(b)(3) clearly establishes that relief under subsection (b)(3) is available for both unintentional
and intentional conduct. 12 Moore’s Federal Practice, § 60.43[1][a] (3d ed. 1997) (citing cases).
Specifically, “misconduct” can cover accidental omissions where there is no intent to deceive.
See, e.g., Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (“Accidents—at least
avoidable ones—[are] not [] immune from the reach of the rule.”). Federal courts have also held
that a violation of discovery rules, whether intentional or negligent, is “misconduct” within the
meaning of FRCP 60(b)(3). 5 Based on Johnston and Watson and the similar wording of the
Indiana and federal rules, we readily conclude that “misconduct” under Indiana’s Rule 60(B)(3)
can include both negligent and intentional violations of Indiana’s discovery rules.
Indiana courts applying the “fraud” provision of subsection (B)(3) of Indiana Rule 60
have required a movant to show that fraud prevented the movant from fully and fairly presenting
the movant’s case. See, e.g., Morgan County v. Ferguson, 712 N.E.2d 1038, 1046 (Ind. Ct. App.
1999) (citing Humbert v. Smith, 655 N.E.2d 602, 607 (Ind. Ct. App. 1995), aff’d, 664 N.E.2d
356 (Ind. 1996)). We think a new trial for “misconduct” under the Indiana rule is governed by
the same requirement. This is consistent with federal authority construing FRCP 60(b)(3), which
requires a movant to demonstrate that the “fraud, misrepresentation, or misconduct” prevented
the movant from fully and fairly presenting the movant’s case at trial. See 12 Moore’s Federal
Practice, supra, at § 60.43[1][c] (citing cases). This showing is required because subsection
(b)(3) creates a limited exception to the general rule of finality of judgments. If a party cannot
5
See 12 Moore’s Federal Practice, supra, at § 60.43[1][b] (citing Schultz v. Butcher, 24 F.3d 626, 630-31
(4th Cir. 1994); Anderson, 862 F.2d at 923; Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.
1978)); compare Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997), trans.
denied (Indiana Trial Rule 37 authorizes dismissal of an action for discovery abuses); Wozniak v. N. Ind.
Pub. Serv. Co., 620 N.E.2d 33, 35 (Ind. Ct. App. 1993), trans. denied (same).
6
show that fraud, misrepresentation, or misconduct substantially prejudiced the party’s presenta-
tion of the party’s case, a court should not set aside an otherwise final judgment.
Both the Indiana and federal rules expressly require a party moving for relief for “fraud,
misrepresentation or misconduct” to show “a meritorious claim or defense.” This requires a
showing “that vacating the judgment will not be an empty exercise.” 12 Moore’s Federal Prac-
tice, supra, at § 60.24[1]. In Smith v. Johnston, 711 N.E.2d 1259, 1265 (Ind. 1999), we held that
Indiana Rule 60(B)’s requirement of a meritorious defense, like its federal counterpart, merely
requires a prima facie showing of a meritorious defense, that is, a showing that “will prevail until
contradicted and overcome by other evidence.” The movant need only “present evidence that, if
credited, demonstrates that a different result would be reached if the case were retried on the
merits and that it is unjust to allow the judgment to stand.” Id. (emphasis added).
The net result of the above discussion is that in order for Outback to obtain relief under
Rule 60(B)(3) it must show that (1) the plaintiffs’ discovery responses amounted to either fraud,
negligent misrepresentation, or misconduct; (2) the fraud, misrepresentation, or misconduct pre-
vented Outback from fully and fairly presenting its case at trial; and (3) Outback has made a
prima facie showing of a meritorious defense as to liability or that the damages were excessive.
B. Claimed Misconduct Warranting a New Trial
Outback argues that the failure to disclose Roysdon’s identity and the substance of her
1997 statement in response to Outback’s 1999 interrogatories violated Indiana Trial Rules 26 and
33. Second, Outback argues that Alexander’s failure to inform Outback that he intended to call
Roysdon and that she would recant her 2001 deposition testimony at trial violated the duty to
supplement discovery responses under Trial Rule 26(E). Outback argues that these discovery
abuses constitute “misconduct” which denied Outback a fair trial. Outback also claims miscon-
duct by plaintiffs’ counsel in closing argument. As a remedy Outback seeks a new trial at which
Roysdon’s testimony is excluded and recovery of its trial and post-trial attorney fees from the
Markleys and/or the Markleys’ counsel.
As explained below, we conclude that the plaintiffs’ failure to identify Roysdon as a per-
son with knowledge of the relevant facts was a negligent if not intentional breach of its discovery
7
obligations. Subsequently, plaintiffs failed to supplement their response with the substance of
her change in testimony. As these events unfolded, these omissions cascaded into a closing ar-
gument that materially misled the jury. The cumulative effect was misconduct prejudicing Out-
back’s defense.
1. Omission in Initial Response to Interrogatories
Indiana Trial Rule 26 provides that parties may obtain discovery by means of written in-
terrogatory “regarding any matter, not privileged, which is relevant to the subject-matter in-
volved in the pending action” including “the identity and location of persons having knowledge
of any discoverable matter.” T.R. 26(B)(1). Information that is inadmissible under the rules of
evidence may be sought if the information “appears reasonably calculated to lead to the discov-
ery of admissible evidence.” Id. The names and addresses of potential witnesses and persons
with knowledge of material facts are squarely within the range of proper discovery. Trial Rule
33(B) provides that “each interrogatory shall be answered separately and fully in writing under
oath, unless it is objected to.” Rule 33(C) further provides that the failure to make a timely re-
sponse to interrogatories is grounds for sanction under Rule 37.
The Dram Shop Act, Indiana Code section 7.1-5-10-15.5, imposes civil liability for
knowingly furnishing alcohol to a visibly intoxicated person whose intoxication causes injury to
persons or property. Under Trial Rule 26(B)(1), information is discoverable if it is relevant and
not privileged. If the Markleys expected to call Roysdon as a witness, both Roysdon’s identity
and the substance of her 1997 statement were called for by Interrogatory 12. Her account of
Whitaker’s state of intoxication was obviously relevant to the Markleys’ Dram Shop Act claim
and is not protected from disclosure by any privilege.
Indiana’s Trial Rules, like earlier versions of the federal rules, do not require automatic
disclosure of discoverable information. The Markleys argue that they were not required to dis-
close Roysdon’s name and her 1997 statement because they did not intend to rely on Roysdon’s
testimony to support their Dram Shop claim but chose instead to “rely” on indirect and circum-
stantial evidence to prove Outback’s actual knowledge of visible intoxication. The trial court
agreed that the Markleys did not intend to rely on Roysdon because (1) the Markleys did not in-
clude Roysdon on their pre-trial witness list and first decided to call her mid-trial and (2) the
8
Markleys did not rely on Roysdon’s 1997 statement to oppose Outback’s pre-trial motion for
summary judgment on the Dram Shop Act claim. The Markleys also argue that they did not dis-
close Roysdon’s identity because she failed to respond to attempts to contact her in the two years
following her 1997 statement and therefore they did not plan to call her as a witness at trial. 6
If, as the Markleys claim, they did not expect to present direct evidence of Whitaker’s in-
toxication through Roysdon and had no other direct evidence of Whitaker’s intoxication, they
would be correct that the substance of her account of Whitaker’s condition at the grand opening
was not required to be set forth in response to Interrogatory 12. 7 But even if we accept the claim
that the plaintiffs intended to offer no direct evidence of Whitaker’s conduct or condition, we
think it is clear that Roysdon’s identity was called for by Interrogatory 12. The Markleys’ claim
that they did not intend to call Roysdon is beside the point. The interrogatory called for persons
with knowledge of the facts on which the Markleys relied, not for persons on whose testimony
they intended to rely.
It is true, of course, that the Markleys’ answer to Interrogatory 12 did not cite discrete
“facts” such as whether Whitaker was staggering, smelled of alcohol, slurred his speech, or
danced on the table. It is peculiar, to say the least, that plaintiffs’ 1999 interrogatory answers
made no such allegations, given Roysdon’s 1997 statement to Alexander. It is also notable that
plaintiffs made no effort in Roysdon’s 2001 deposition to shake her testimony that Whitaker was
“fine.” At oral argument the Markleys’ appellate counsel suggested, based on facts not of re-
cord, that difficulties in communication between Alexander and McClellan, who handled Roys-
don’s deposition, may have been a factor. That may be true. And the Markleys may have dis-
credited Roysdon’s 1997 account and therefore intended not to call her because they believed she
was unreliable. Nevertheless, Roysdon was obviously present at the grand opening and was a
person with knowledge of the facts the Markleys’ response asserted. As a result of her 1997
visit, Markleys’ counsel knew this. So in that respect the 1999 interrogatory answer was patently
deficient under any supposition as to the underlying reasons for that deficiency.
6
The portion of the record the Markleys cite in support of this contention is solely testimony of Roysdon
that does not seem to support the claim. Roysdon seems to testify in her post-trial deposition that she did
not return calls from Outback and/or its attorneys but does not seem to confirm any refusal to communi-
cate with Alexander.
7
The response date cannot be determined from the record before us. The defendants’ brief asserts the
response was in 1999.
9
If the Markleys’ attorneys had any doubt about this, it is resolved by the obligation to
construe an interrogatory fairly. Interrogatories should not “be interpreted with excessive rigid-
ity or technicality, but a rule of reason should be applied.” Pilling v. Gen. Motors Inc., 45 F.R.D.
366, 369 (D. Utah 1968); see also Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (incom-
plete or evasive responses to interrogatories support dismissal of an action); 7 Moore, supra, at §
33.101. Additionally, answers to interrogatories “must be responsive, full, complete and uneva-
sive.” Pilling, 45 F.R.D. at 369. This commonsense approach to the interpretation of interroga-
tory requests furthers the purposes of discovery, namely, to allow parties to obtain evidence nec-
essary to evaluate and resolve their dispute based on a full and accurate understanding of the true
facts, to promote settlement, to remove surprise from trial preparation, and to narrow the dis-
puted issues and facts requiring trial. 6 Moore, supra, at § 26.02; Canfield v. Sandock, 563
N.E.2d 526, 528 (Ind. 1990); Pierce v. Pierce, 702 N.E.2d 765, 767 (Ind. Ct. App. 1998), trans.
denied; Hatfield, 676 N.E.2d at 399.
The Markleys point out that even if they did not disclose Roysdon’s identity or her 1997
statement in response to Interrogatory 12, they disclosed Roysdon’s name in response to a differ-
ent interrogatory asking for facts supporting their habitual drunkard claim. This is not an an-
swer. Whitaker and Roysdon had worked together at another restaurant before the grand open-
ing, and Roysdon may well have had information about Whitaker’s past but known nothing of
his condition at the grand opening. In short, the facts related to Whitaker’s being a “habitual
drunkard” are obviously different from those bearing on his state of intoxication at the Outback
grand opening.
The immediate effect of omission of Roysdon as a person with knowledge of the facts
supporting the claim of visible intoxication is speculative. If Roysdon had been identified by the
plaintiffs in response to Interrogatory 12, a number of scenarios might have evolved. Outback
might have deposed her earlier than it did, and her testimony might have adhered to the version
she gave Alexander in 1997. Whether or not this is the case, if the plaintiffs had identified her as
a person with knowledge bearing on Whitaker’s state of visible intoxication, Outback might well
have asked Roysdon about any conversations she had with plaintiffs’ attorneys. All of this is
conjecture on our part. The significant point is that, as subsequent events developed, Outback
10
makes a persuasive claim that the trial would have unfolded differently if the Markleys’ attor-
neys had discharged their initial discovery obligations.
The parties dispute, and the record does not resolve, whether the failure to disclose Roys-
don’s identity and 1997 statement in response to Interrogatory 12 was an act of carelessness,
failure of communication between plaintiffs’ attorneys, or part of an intentional scheme to de-
fraud Outback and deceive the court and jury. Outback contends that the plaintiffs’ attorneys
intentionally suckered it into positioning itself as disingenuous before the jury by a purposeful
concealing of Roysdon’s testimony. If so, and if the Markleys intended from the outset to pre-
sent Roysdon as a witness for the plaintiffs, they were required to disclose both Roysdon’s iden-
tity and the substance of her 1997 statement. Indiana discovery rules are specifically designed to
avoid surprise and the trial by ambush that Outback charges was designed by the plaintiffs. See
Canfield, 563 N.E.2d at 528. We have consistently rejected a “gaming view” of the litigation
process. In Johnston we held that a default judgment must be set aside under Trial Rule 60(B)(3)
for misconduct where the plaintiff’s attorney filed suit and pursued a default judgment without
notifying the attorneys whom she had been advised in writing were representing the defendant in
the matter. 711 N.E.2d at 1260-61. In response to the plaintiff’s argument that provision of no-
tice would “make it nearly impossible to obtain a default judgment against health care provid-
ers,” we stated that default judgments are not “traps” to be set for “unsuspecting litigants” and
rejected “the gaming view of the legal system” presented by the plaintiff’s argument. Id. at
1264; see also McCullough v. Archbold, 605 N.E.2d 175, 179 (Ind. 1993) (citing Mauricio v.
State, 476 N.E.2d 88, 95 (Ind. 1985) (De Bruler, J., dissenting) (“The State may not insist that
trials be run as a ‘search for truth’ so far as defense witnesses are concerned while maintaining
‘poker game’ secrecy for its own witnesses.”)); Taylor v. United States, 484 U.S. 400, 419
(1988) (Brennan, J., dissenting) (“[D]iscovery is not a game.”); United States v. Procter & Gam-
ble Co., 356 U.S. 677, 682 (1958) (the purpose of pretrial discovery is to “make a trial less a
game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the
fullest practicable extent”); Harvey v. Horan, 285 F.3d 298, 317-18 (4th Cir. 2002) (“There was a
time when concealment and gamesmanship were accepted as part and parcel of the adversarial
process of the criminal justice system. . . . [W]e decidedly rejected this system long ago . . . .”).
However, whether the omission was intentional or negligent, and even if, as appears here, only
the attorneys and not the Markleys are responsible for the nondisclosure, we readily conclude
11
that the initial omission was a violation of Indiana Trial Rules 26 and 33 and therefore “miscon-
duct” within the meaning of Rule 60(B)(3). Whether it was prejudicial remains to be explained.
2. Failure to Supplement the Interrogatory Answer
Outback argues that a second instance of misconduct occurred when the plaintiffs failed
to supplement their interrogatory response when they decided to call Roysdon as a witness. The
Markleys respond that Outback waived any objection by choosing to cross-examine Roysdon on
her change in testimony. The Markleys also argue that they decided to call Roysdon only after
the trial had started and that the duty to supplement discovery does not continue during trial.
They further contend that the information relating to Roysdon was work product. As explained
below, none of these responses is adequate.
a. Duty to Supplement After Trial Begins
Trial Rule 26(E) provides several exceptions to the general rule that there is no continu-
ing duty to supplement discovery responses that were “complete when made.” Among these is
Trial Rule 26(E)(2)(a), which provides that a party has a duty to supplement a prior discovery
response if “he obtains information upon the basis of which he knows that the response was in-
correct when made.” Under Rule 26(E)(2)(b), there is also a duty to supplement a response that
was correct when made but is no longer true if, under the circumstances, “a failure to amend the
response is in substance a knowing concealment.” At the point the plaintiffs determined to pre-
sent Roysdon’s testimony, the omission of the substance of that testimony from their answer to
Interrogatory 12, even if “correct when made,” became “no longer true” and a “knowing con-
cealment” as those terms are used in Rule 26(E)(2)(b).
The Markleys first argue that the duty to supplement discovery does not continue during
trial. Outback cites federal authority for the proposition that the duty to supplement under FRCP
26(e) is an ongoing obligation. See Smith v. Ford, 626 F.2d 784, 795 (10th Cir. 1980) (citing
Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975)). Indiana Trial Rule 26 does
not explicitly address whether a party’s duty to supplement continues during trial. But, impor-
tantly, it does not say this duty ceases at the onset of trial. We see no reason why the duties im-
posed by Trial Rule 26(E)(2)(a) and (b) stop at the outset of trial. To permit a party discovering
12
its own error or omission to remain silent would permit that party to benefit from its own con-
cealment or error. Whether the initial response to Interrogatory 12 was intentionally or inadver-
tently incomplete, the duty to supplement was triggered by either subsection (a) or subsection
(b). Trial Rule 26(E) requires that a supplemental response be “seasonably” made. This sug-
gests a need for timely response. We think it also indicates that it may be reasonable and appro-
priate to modify the method of supplementing a discovery response if new information is discov-
ered on the eve of or during trial. Here no effort at all was made. That is surely inadequate by
any measure.
b. Work Product
The Markleys argue that the substance of Roysdon’s 1997 statement to Alexander is pro-
tected as attorney work-product. This claim is neither preserved nor correct. In the first place,
they made no work-product objection to the interrogatory. In any event, work-product is not a
valid ground for the plaintiffs’ omissions.
The Court of Appeals rejected this argument on the ground that work-product is limited
to documents or tangible things and Roysdon’s statement was never memorialized in writing.
We do not agree that work-product is limited to tangible items. An attorney cannot be forced to
disclose the attorney’s mental impressions, etc., whether or not they are reduced to writing.
Hickman v. Taylor, 329 U.S. 495, 510 (1947) (the work product of a lawyer reflected in “inter-
views, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible ways” is protected). But Roysdon’s statement is not at-
torney work-product for a more fundamental reason. The purpose of the privilege is to protect
the mental impressions and legal theories of attorneys and their clients. Roysdon’s statements to
Alexander do not reveal mental impressions or legal theories. They are simply potential evi-
dence that enjoys no privilege. Accordingly, they are not protected as work-product. Kristoff v.
Glasson, 778 N.E.2d 465, 471 (Ind. Ct. App. 2002).
c. Waiver
In reliance on our decision in O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001), the
Court of Appeals agreed with the trial court that Outback’s decision to cross-examine Roysdon
13
waived any objection based on the failure to supplement discovery. In O’Connell we held that
when a party is confronted with a surprise witness, ordinarily the proper remedy is to move for a
continuance and the failure to move for a continuance may waive any alleged error. O’Connell
dealt with a witness who had not been identified by either side and came forward with relevant
evidence after the trial had started. The defendant objected to the witness at trial, and the trial
court allowed a continuance to permit the defendant to depose the witness. The State had made
no attempt to conceal the witness from the defense, and the defense had not deposed the witness
before the trial. Under this circumstance a continuance is ordinarily appropriate to permit the
defendant to pin down the testimony that could be expected of the new witness. Here, however,
Outback had no reason to seek a continuance. The Markleys presented a witness whom the de-
fense had expected to call. This was a “surprise” only in that the plaintiffs, not the defendants,
had called her. At the time she was called, Outback had no reason to believe she would not ad-
here to her 2001 deposition testimony.
Outback also argues that its decision to cross-examine Roysdon and impeach her with her
2001 deposition testimony did not forfeit other remedies (a continuance, a mistrial, exclusion of
Roysdon’s testimony) because Outback was unaware of Roysdon’s 1997 statement when it
elected to cross-examine Roysdon. Outback argues that it was disadvantaged in cross-examining
Roysdon because its ignorance of the 1997 statement prevented it from showing the jury that she
had flip-flopped more than once. Outback notes that Alexander in closing argument portrayed
Roysdon as a courageous witness who, after feeling guilty for years, decided at the last minute to
be guided by her conscience, stop lying, and tell the truth. Outback argues that the jury would
have considered Roysdon’s testimony less admirable if it had known of Roysdon’s 1997 state-
ment and the fact she had changed her story twice, not just once. We doubt that Roysdon’s tes-
timony would have been less credible if all the facts were on the table, but we agree that Outback
cannot be charged with waiver when it is ignorant of all relevant facts due to misconduct on the
part of its opponent. We think that the most important reason why Outback’s decision to cross-
examine Roysdon did not waive its objection to the belated disclosure of Roysdon’s recanting of
her deposition testimony is that Outback was not advised in advance of Roysdon’s change in tes-
timony and, therefore, had no time to evaluate whether to seek a continuance, move for a mis-
trial, or redepose Roysdon to explore the circumstances of her change of heart. A proper sup-
plement to plaintiffs’ response to Interrogatory 12 would have identified Roysdon and stated the
14
substance of what she would say. That information was intentionally withheld from Outback by
plaintiffs’ attorneys. Without it no waiver can be claimed.
3. Closing Argument
Outback raises a final claim of misconduct by plaintiffs’ attorney based on closing argu-
ment. David Markley was driving the motorcycle. His blood alcohol tested at .07% or .08%
over an hour after the collision with Whitaker. 8 The facts made clear that he had not ingested
alcohol in the period of time after the collision and before the blood test that was administered at
the hospital at 12:13 am on July 22. The parties agreed that Outback would not claim compara-
tive fault on the part of either of the Markleys and in exchange the plaintiffs would claim no pu-
nitive damages. At closing argument, in asking for a $120 million damage award Alexander ar-
gued:
My clients didn’t want anybody punished. Good thing, because this is the perfect
case for punitive damages . . .
Outback contends that this breached the agreement not to seek punitive damages. They urge this
as a freestanding ground for finding misconduct on the part of the plaintiffs. Viewed in isolation,
we would agree that this argument is not a basis for overturning a jury verdict. But later in his
closing, Alexander attacked the credibility of Outback’s counsel:
Remember when counsel for the Defendant (inaudible) Outback Steakhouse bar
stood up here in opening and he told you what the evidence was going to show? . .
. Patrice Roysdon, she’s going to come in here, she’s their witness, and she’s go-
ing to tell you he wasn’t drunk. He made you all kinds of promises about the evi-
dence. Now he wants to stand up here and act like he didn’t do that, and by the
way, we’re real sorry for these people, just don’t give them nothing. Sometimes
it’s embarrassing to be in this business.
The plaintiffs’ counsel’s shortcomings in discovery that had not yet come to light were the basis
of the claim that the defendant was disingenuous. In this context, this argument constituted
“misconduct” by Alexander.
B. Prejudice to Outback’s Ability To Present Its Case
8
Markley’s serum alcohol content was 98 milligrams per deciliter. The parties dispute whether this fig-
ure converts to a whole blood alcohol concentration of .07% or .08%.
15
In order to obtain a new trial based on the Markleys’ counsel’s misconduct, Outback
must establish that the misconduct prejudiced its right to a fair trial. Outback argues that it
would have handled this case differently had Roysdon’s 1997 statement been disclosed in 1999
in response to Outback’s interrogatories and had it known that Roysdon planned to recant her
2001 deposition testimony at trial. Specifically, Outback claims that if it had known of Roys-
don’s 1997 statement it would have evaluated the case differently and attempted to settle. With-
out the benefit of this information, Outback’s view of the case was that plaintiffs had no direct
evidence that Outback knew Whitaker was visibly intoxicated and that the plaintiffs’ circumstan-
tial evidence of Outback’s knowledge was insufficient to impose liability.
Roysdon’s testimony was critical to the Markleys’ Dram Shop Act claim. She was the
only witness who testified to Whitaker’s visible intoxication at Outback and, critically, to Out-
back’s employee’s knowledge of Whitaker’s condition. Without Roysdon’s testimony, the only
evidence the Markleys offered of Outback’s knowledge was the testimony of various individuals
who attended the grand opening. They established only that Outback served free alcoholic
drinks at the grand opening and did not keep track of how many drinks each attendee consumed.
This in itself establishes nothing as to Whitaker’s condition, and Whitaker himself testified that
he had three or four drinks at Van’s after he left Outback. Based on the perceived weakness of
the plaintiffs’ case with respect to Whitaker’s intoxication and Outback’s knowledge of visible
intoxication, Outback says it decided to litigate. We assume Outback is correct in claiming that
Roysdon’s story would have affected its assessment of its liability. It remains entirely specula-
tive whether the case would have been settled. We have no basis to conclude that the parties
would have agreed on a damage award even if liability were conceded.
We think the more persuasive point is that counsel for Outback, based on Roysdon’s
2001 deposition testimony, told the jury in opening statement that no witness establishing
Whitaker’s visible intoxication would be produced and that Roysdon would testify that he was
not intoxicated. Alexander in closing pounded on the claimed “embarrassing” conduct by Out-
back’s counsel. Roysdon’s undisclosed change of story thus simultaneously destroyed not only
Outback’s theory of the case but also its credibility with the jury. Outback therefore credibly
contends that its handling of the case would have been substantially different, and the damages,
if not the liability, would have been materially different if plaintiffs’ counsel had discharged their
16
obligations. Outback contends that the Indiana Trial Rules acknowledge the importance of final-
ity of judgments, but Rule 60(B)(3) also recognizes the importance of fairness and integrity of
the fact-finding process. At oral argument appellate counsel for the Markleys offered as an ex-
planation for the failure to identify Roysdon lack of communication between trial counsel for the
Markleys. Assuming this is correct, it nonetheless imposed on Outback the consequences of
plaintiffs’ counsel’s shortcomings. As already noted, negligent as well as intentional misconduct
is sufficient under Trial Rule 60(B)(3). Moreover, some of the misconduct is difficult to explain
as oversight. Alexander, in closing, purposely took unfair advantage of the defendants’ igno-
rance of the whole story.
C. Meritorious Defense
Trial Rule 60(B)(3) is patterned after its federal counterpart, FRCP 60(b)(3) and has been
in the Indiana Trial Rules since they were adopted in 1970. See Stonger, 776 N.E.2d at 355-56.
Relief under Trial Rule 60(B)(3) requires Outback to make a prima facie showing of a “meritori-
ous claim or defense,” also a long established requirement under the federal rule. Johnston, 711
N.E.2d at 1265 (citing cases). One way to meet this requirement is to identify evidence that, if
credited, demonstrates that a different result would be reached if the case were retried on the
merits. Id. A “meritorious defense” for these purposes includes a showing that either liability is
in doubt or the damages awarded were excessive or inadequate. See, e.g., Whelchel v. Cmty.
Hosp. of Ind., Inc., 629 N.E.2d 900, 903 (Ind. Ct. App. 1994), trans. denied; Sanders v. Kerwin,
413 N.E.2d 668, 671 (Ind. Ct. App. 1980). A “meritorious defense” is also established by show-
ing that the judgment was “unfairly procured.” Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir.
1994).
It is, of course, somewhat speculative what the jury’s assessment of liability or damages
would have been in this case if plaintiffs had made a proper initial response and supplement to
Outback’s interrogatory and avoided any reference to punitive damages in closing argument.
Federal authority, including cases that predate the adoption of this same language in the Indiana
Trial Rules, establishes that the “meritorious defense” requirement does not require a showing
that a different result would have been obtained without the misconduct. Schultz, 24 F.3d at 631
(“[N]ew evidence does not have to be result altering to warrant a new trial on a Rule 60(b)(3)
17
motion.”); see also Rozier v. Ford, 573 F.2d 1332, 1339 (5th Cir. 1978) (“Although Rule
60(b)(3) applies to misconduct in withholding information called for by discovery, it does not
require that the information withheld be of such a nature as to alter the result in the case.” (cita-
tion omitted)). As the Third Circuit explained in an early opinion under the federal rules, “a liti-
gant who has engaged in misconduct is not entitled to ‘the benefit of calculation, which can be
little better than speculation, as to the extent of the wrong inflicted upon his opponent.’”
Seaboldt v. Pennsylvania R.R. Co., 290 F.2d 296 (3rd Cir. 1961) (quoting Minneapolis, St. Paul
& S.S. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22 (1931)). We agree with Outback that the
same doctrines apply under Indiana Trial Rule 60(B)(3). We cannot permit the award in this
case to stand based, as it is, on a series of shortcomings by plaintiffs’ counsel, any one of which
might be overlooked but whose cumulative effect produces a result that is “unfairly procured.”
Outback suggests denying attorney fees as a potential remedy. We recognize that the effect of
ordering a new trial is once again to make the Markleys innocent victims, this time at the hands
of their own lawyers. But the Markleys chose their counsel and this series of missteps by plain-
tiffs’ counsel produced a severely unfair trial. For that reason, it is not adequate to deny the at-
torneys their fee. We have no confidence in the result and to permit it to stand even without at-
torney compensation is unfair to Outback. More importantly, for future cases, to permit the
judgment to stand would create too great an incentive to play fast and loose with the judicial
process.
D. Attorney Fees and Other Remedies
In addition to a new trial, Outback seeks discovery sanctions under Trial Rule 37 to re-
cover its trial and post-trial attorney fees and to exclude Roysdon’s testimony in any subsequent
proceedings. Neither the trial court nor the Court of Appeals addressed Outback’s requests for
attorney fees and for exclusion of Roysdon’s testimony. Rule 37 authorizes imposition of sanc-
tions, including exclusion of evidence and attorney fees, for a party’s failure to respond to inter-
rogatories. However, the Rule appropriately provides that sanctions should not be imposed when
circumstances make sanctions unjust. T.R. 37(D). There is no evidence the Markleys were in-
volved in the discovery violations. Both exclusion of Roysdon’s testimony at any subsequent
proceedings and an order compelling the Markleys to pay Outback’s attorney fees would punish
the Markleys for their counsel’s conduct. We therefore deny Outback’s request for this relief.
18
We cannot resolve from this record whether the plaintiffs’ failure to give a complete response to
Interrogatory 12 or the failure to supplement that response, or both, were intentional or negligent.
For this reason we do not order plaintiffs’ counsel to pay Outback’s attorney fees at this stage.
II. Instruction Error
Outback argues that it is entitled to a new trial based on an erroneous instruction as to the
standard for a share of comparative fault to be assessed against Van’s. Final Jury Instruction 9
stated in relevant part:
In order for fault to be assessed against a non-party, Van’s Lounge, the Defen-
dants have the burden of proving the following propositions by a preponderance
of the evidence:
1. That Van’s Lounge served William Whitaker alcohol;
2. That William Whitaker was visibly intoxicated at the time he was served al-
cohol;
3. That Van’s Lounge had actual knowledge that William Whitaker was visibly
intoxicated at the time he was served alcohol; and
4. That William Whitaker’s intoxication from alcohol served to him by Van’s
Lounge was a proximate cause of the collision between Whitaker’s car and the
motorcycle being ridden by the Markleys.
This instruction in effect required the jury to find all elements of liability before it could allocate
fault to Van’s.
Outback tendered an instruction that would allocate fault to Van’s to the extent the plain-
tiffs’ injuries were “caused by the fault” of Van’s. It read
[T]he Defendants have claimed certain specific defenses and the Defendants have
the burden of proving those claims by a preponderance of the evidence. The De-
fendants claim that Plaintiffs’ injuries and damages were caused by the fault of
the non-parties, William Whitaker and Van’s bar at the airport. In addition, the
Defendants claim that the Plaintiffs, David and Lisa Markley, are partially at fault
for the accident and their own injuries.
Outback’s motion to correct errors sought a new trial on the ground that this instruction incor-
rectly stated the law governing non-party fault. The trial court acknowledged that Instruction 9
19
incorrectly stated that in order to allocate fault to Van’s as a non-party the jury has to find all the
elements of civil liability under the Dram Shop Act. The trial court recognized that under the
Comparative Fault Act, Indiana Code section 34-6-2-88, a non-party must “cause or contribute to
cause” injury or damages but that a finding of liability is not necessary to allocate fault to a non-
party. The trial court concluded, however, that Outback had not preserved its objection to In-
struction 9. Specifically, the trial court noted that Outback failed to object to Instruction 9 at
trial. The trial court concluded that Outback’s proposed instruction did not preserve the issue
because its last sentence related to a comparative fault claim against the Markleys that Outback
had agreed to drop after the close of evidence.
Outback contends that its tendered instruction contained a correct statement of the law
and therefore was sufficient to preserve objection to Instruction 9 notwithstanding the inclusion
of a claim against the Markleys which had been dropped from the case. After comparative fault
of the Markleys was removed from the case, reference to it was no longer appropriate. But dele-
tion of the final sentence of Outback’s tendered instruction could be readily accomplished with-
out affecting the instruction on the point at issue. Outback’s tendered instruction was based on
Indiana’s pattern jury instruction and correctly stated the law governing non-party fault. A ten-
der of a proper instruction is sufficient to preserve an objection to an improper instruction on the
same point. PSI Energy, Inc. v. Roberts, 834 N.E.2d 665, 667 (Ind. 2005). Accordingly, we
conclude that Outback’s tendered instruction was sufficient to preserve its objection to Instruc-
tion 9.
We are not convinced, however, that Outback is entitled to a new trial on this ground.
The bartender and waitress who served Whitaker at Van’s testified that Whitaker was showing
symptoms of intoxication when he arrived at Van’s and that they served him only Diet Coke.
Instruction 9 told jurors that in order to allocate fault to Van’s they had to find that Van’s served
Whitaker alcohol with knowledge that Whitaker was intoxicated. The testimony of Van’s em-
ployees established that Van’s had actual knowledge of Whitaker’s intoxication at the time they
served him. The jury nonetheless allocated zero fault to Van’s. The only plausible explanation
for the jury’s allocation of fault is that the jury credited Van’s employees’ testimony that they
realized that Whitaker was intoxicated when he arrived at Van’s and accordingly did not serve
Whitaker alcohol. Outback’s tendered instruction, like Instruction 9, would have required the
20
jury to find that Van’s served Whitaker alcohol. Because a finding that Van’s served Whitaker
alcohol is inconsistent with the jury’s allocation of fault using the standard provided in Instruc-
tion 9, we conclude that the giving of Instruction 9 was harmless error. Accordingly, we do not
agree that Outback is entitled to a new trial on this ground.
III. An Attorney’s Duty of Candor in Dealings with the Court
Outback argues that Alexander made material misrepresentations to the court which war-
rant relief from the judgment under Rule 60(B). 9 The facts underlying this issue are as follows.
The plaintiffs called Bruce McLaren, at the time an attorney and former magistrate judge, 10 who
had attended the grand opening celebration at Outback. McLaren stated that he had not been to
an event like the Outback grand opening “since I was in a fraternity.” Before McLaren testified
Alexander told the court and opposing counsel that McLaren had been indicted two weeks earlier
in federal court for wire fraud and that Alexander represented McLaren in those criminal pro-
ceedings. Alexander asked the court to direct Outback not to inquire about the indictment on the
ground that the indictment was not an impeachable event. Outback argued that it should be able
to inquire into the federal indictment because McLaren’s reliance on Alexander to represent him
in a criminal matter that involved his liberty and his livelihood as an attorney was a potential
source of bias.
The trial court concluded that although wire fraud is a crime suggesting dishonesty, an
indictment is not an impeachable event under Indiana Rule of Evidence 609(a) because that rule
requires conviction. The trial court granted Alexander’s request to limit the scope of cross-
examination and excluded inquiry into the criminal charges against McLaren. 11
After the trial, Outback learned that, concurrent with the indictment, McLaren had pled
guilty to the federal charges two weeks before he testified at the Markleys’ trial. Although Alex-
ander had signed the plea agreement as McLaren’s counsel, he did not disclose the agreement to
9
The motion cited only Rule 60(B)(1), which affords relief for “mistake, surprise, or excusable neglect.”
The grounds argued, however, were “newly discovered evidence,” a 60(B)(2) ground, and “fraud” and
“misconduct,” which are under 60(B)(3) as grounds for a new trial.
10
McLaren’s resignation from the bar is reported at In re McLaren, 850 N.E.2d 400 (Ind. 2006).
11
Although we need not address the merits of this ruling, we note that it did not respond to Outback’s
contention that the cross-examination related to the claim that McLaren was biased, not that he was im-
peachable by reason of the indictment.
21
the court or to Outback and affirmatively represented that McLaren had only been indicted in
federal court.
Indiana Rule of Evidence 609(a) provides that conviction of a crime involving dishonesty
or false statement is an impeachable event. Wire fraud is a crime involving false statement be-
cause misrepresentation is an element of the crime. See United States v. Pritchard, 773 F.2d 873,
876 (7th Cir. 1985). Outback cites Specht v. State, 734 N.E.2d 239, 240 (Ind. 2000) and M-
cDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) for the proposition that a guilty
plea is equivalent to a conviction under Rule 609(a). The Markleys respond that in Specht the
court had accepted the defendant’s guilty plea, but in this case the district court had not yet ac-
cepted McLaren’s plea. The Markleys argue that a guilty plea is not the equivalent of a convic-
tion before the court accepts the plea because until then the defendant can withdraw the plea and
proceed to trial. They are correct that Federal Rule of Criminal Procedure 11(d)(1) provides that
a defendant can withdraw a guilty plea at any time before the court accepts the plea for “any rea-
son or no reason.” Once the court accepts the plea, the defendant may withdraw it only if no
sentence has been imposed and if the defendant can show “a fair and just reason” for withdrawal.
Fed. R. Crim. P. 11(d)(2)(B). We agree that a guilty plea that has not yet been accepted by the
court is not the equivalent of a conviction under Rule 609(a). The Rule draws a bright line at
conviction before a prior crime may be used to impeach a witness. A high probability of guilt is
not enough. We assume this issue will be moot at any retrial.
Outback argues that Alexander’s description of McLaren’s status before the federal court
constitutes “fraud upon the court,” “newly discovered evidence,” and “misconduct” under Trial
Rule 60(B) and that Outback is therefore entitled to relief from a judgment. Subsection (B)(2) of
Indiana Trial Rule 60 provides relief from a judgment for “newly discovered evidence.” Relief
from judgment based upon newly discovered evidence requires a showing that the newly discov-
ered evidence is material, is not merely cumulative or impeaching, was not discoverable by due
diligence, and would reasonably and probably alter the result. State ex rel. Huppert v. Paschke,
637 N.E.2d 150, 153 (Ind. Ct. App. 1994) (citing Freels v. Winston, 579 N.E.2d 132 (Ind. Ct.
App. 1991)). These showings are required because subsection (B)(2) is concerned with correct-
ing erroneous judgments stemming from the unobtainability of evidence. Because Outback in-
tended to use McLaren’s guilty plea for impeachment, we conclude that Outback is not entitled
22
to relief from a judgment based on subsection (B)(2) of Trial Rule 60. “Fraud on the court” un-
der the savings clause of Rule 60(B) and “misconduct” under subsection (B)(3) both require a
showing that the fraud or misconduct prevented the movant from fully and fairly presenting the
movant’s case. See Rocca v. Rocca, 760 N.E.2d 677, 680 (Ind. Ct. App. 2002), trans. denied.
We conclude that Outback was not significantly prejudiced by Alexander’s concealment of
McLaren’s guilty plea because Outback offered the plea only for impeachment and also because
McLaren’s testimony was cumulative of other testimony about the atmosphere of the Outback
grand opening celebration. Accordingly, we conclude that Outback is not entitled to relief from
a judgment for “fraud on the court” or “misconduct.”
Notwithstanding our conclusion that Alexander’s conduct is not grounds for relief from a
judgment under Trial Rule 60(B), we conclude that his conduct warrants investigation by the
Indiana Disciplinary Commission. Rule 3.3(a)(1) of the Indiana Rules of Professional Conduct
provides that an attorney “shall not knowingly make a false statement of fact or law to a tribu-
nal.” The commentary explains that candor is necessary to preserve the integrity of the adjudica-
tive process. Rule 4.1(a) provides that an attorney shall not “knowingly make a false statement
of material fact or law to a third person” in the course of representing a client. The commentary
to this Rule explains that misrepresentations include “partially true but misleading statements.”
Rule 8.4(d) provides that it is also misconduct for an attorney to engage in conduct “prejudicial
to the administration of justice.” We leave to the Disciplinary Committee to consider whether
these facts are as they appear from this record and if so whether any charges are appropriate.
Conclusion
Outback raised several issues before the Court of Appeals that are not raised in its peti-
tion for transfer. Because we agree that Outback’s motion for a new trial must be granted, we
need not address these issues. The order of the trial court denying Outback’s motion for relief
from a judgment is reversed. This cause is remanded with direction to vacate the judgment and
schedule a new trial.
Shepard, C.J., and Dickson, Sullivan, and Rucker, J.J., concur.
23