dissenting.
The trial court found that the form of the notice was sufficiently misleading to justify granting the bank relief pursuant to Ind.R. Tr.P. 60(B). I would affirm that decision as did the Fourth District Court of Appeals. Granting such relief under circumstances such as these was approved in Soft Water Utilities, Inc. v. LeFevre, (1973) 261 Ind. 260, 801 N.E.2d 745. In that case, the lawyer who had filed a motion to correct errors, upon making inquiry of the clerk, received misinformation in the form of a verbal statement over the telephone that the motion to correct errors had not been ruled upon, and what's more had not even been received by the court. It seems to me that any lawyer faced with such a surprising pronouncement would have strongly suspected that he had been given false information and would have responded by making a physical check of the court's written records. Had he done so in Soft Water, he would have discovered that the motion had been received and had not yet been ruled upon by the judge. The bank lawyer here received a written notice of the court's ruling on his motion to correct errors. The purpose of that notice was to communicate information useful to the lawyer. The only date that concerned the lawyer was the date of the ruling. A date did appear on the same side of the notice card as the notation of the ruling, but apart from it. A lawyer reading this would be led to conclude that the date was information which the court sought to impart to him, and that this date was the date of the ruling. As in Soft Water, a physical record check within a reasonable time would have revealed the true date of the ruling in time to have avoided the default.
As I see it, in both Soft Water and this case, a lawyer received misinformation and relied upon it until it was too late. The form which that misinformation took in Soft Water, held greater indices of mix-up and mistake, than did the form which the misinformation took in this case, and therefore the stimulus provided the lawyer in Soft Water to make a physical records check was greater than the stimulus provided the lawyer for the bank here. This case is therefore even a stronger one for relief pursuant to Trial Rule 60(B) than was Soft Water.
HUNTER, J., concurs.