dissenting.
I respectfully dissent because I believe this is a clear case for relief under Indiana Trial Rule 60(B)(3), but that the majority has elevated form over substance, and imposed an onerous burden upon Speedway to anticipate and respond to specious conduct by the Holmeses. The majority essentially decides that, because Speedway failed to ferret out the exact nature of the alleged fraud and so advise the trial court within thirty days under the newly discovered evidence provision of Trial Rule 60(B)(2), its right to claim fundamental unfairness of the proceedings is forfeited. The practical import is: if the wrongdoer is adept at concealment, and thirty days pass silently after trial, he is rewarded for his conduct. However, our Supreme Court has specifically rejected a “gaming view of the legal system,” Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind.1999), and the Holmeses should not be rewarded for such.
Nor do I believe that Speedway’s decision to seek relief under Indiana Trial Rule 60(B) as opposed to perfecting a direct appeal on the merits should divest Speedway of the opportunity to challenge fraud. A Trial Rule 60 motion may not be used as a substitute for a direct appeal. See Snider v. Gaddis, 413 N.E.2d 322, 324 (Ind.Ct.App.1980). However, in this case an appeal on the merits would have been futile, as the problem is not a lack of evidence on the elements of negligence or an error of law. Rather, the problem is that the evidence may be fraudulent. The equitable remedy of Trial Rule 60(B)(3) is designed to address this situation.
Moreover, I am not convinced that a party who claims misconduct under these circumstances must also meet the extensive criteria applicable to newly discovered evidence under Trial Rule 60(B)(2). The evidentiary burden for a successful Trial Rule 60(B)(3) motion was recently explained in Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind.2006). Trial Rule 60(B)(3) creates a limited exception to the general rule of finality of judgments, enabling a court to grant relief from an otherwise final judgment due to fraud, misrepresentation, or misconduct of an adverse party. Id. at 72-73. “Misconduct” under this Rule can be based on either unintentional or intentional conduct. Id. at 73. In order to obtain a new trial for misconduct, Speedway is required to show: (1) the Holmeses committed either fraud, negligent misrepresentation, or misconduct; (2) the fraud, misrepresentation, or misconduct prevented Speedway from fully and fairly presenting its case at trial; and (3) Speedway has made a prima facie showing of a meritorious defense as to *314liability or that the damages were excessive. See id. at 74.
This case is a prime example of such misconduct and ensuing prejudice. During pretrial discovery (the appropriate time to prevent “trial by ambush” in accordance with the Indiana Rules of Trial Procedure), the jeans were not to be found. They mysteriously appear at the eleventh hour and represent the sole piece of physical evidence before the jury to support Gerald Holmes’ claim of a slip and fall on diesel fuel.
At this juncture, it would have behooved Speedway to ask for a continuance to obtain testing of the substance thereon (in addition to interposing their objection). Speedway was on notice that the identity of the substance was a contested issue. However, I cannot agree that it was incumbent upon Speedway to somehow suspect that the evidentiary exhibit was wholly fabricated because the manufacture and sale of the particular jeans post-dated the incident. It is not beyond the realm of experience that crucial evidence could be fabricated. However, I do not believe that litigants should be ever vigilant to suspect that physical exhibits are so produced or risk waiver. Nor should trial courts be expected to routinely interrupt proceedings so that every physical exhibit can be challenged for fraud. Trial Rule 60(B)(3) exists so that the presumably rare cases of fraud may be attacked through post-trial equitable proceedings.
The practical effect of the majority decision is that the Holmeses are rewarded, at worst for fraud, and at best for a lack of diligence in making crucial evidence available. Meanwhile, Speedway’s perceived lack of diligence has resulted in the denial of all post-trial relief and the affirmation of an order that it pay more than half a million dollars. For these reasons, I would reverse the denial of equitable relief and remand for a new trial.