Mathis v. Morehouse

SHIELDS, Judge.

Appellant, James B. Mathis, appeals the denial of his Ind.Rules of Procedure, Trial Rule 60(B) motion to set aside a default judgment. Mathis raises two issues on appeal:

I. Did the trial court err in failing to set aside the default judgment, and
II. Did the trial court err in failing to set aside the damage portion of the judgment.

We affirm.

Morehouse filed his complaint against Mathis on October 3, 1979. An amended complaint was filed November 30, 1979 and was followed by an application for default judgment on February 25, 1980. The original hearing date on the application was continued at Mathis’ request and, on March 28, 1980, was reset for April 15, 1980. Mathis filed an answer on March 27, 1980, approximately three (3) months late. On April 7, 1980 Mathis filed a pleading entitled “Motion of Defendant to Relieve Defendant and Defendant’s Counsel from Default Judgment under T.R. 60(B).” On April 15, 1980 the hearing on the application for default was held. Morehouse appeared at this hearing but Mathis did not. The trial judge granted the default judgment and denied Mathis’ “T.R. 60(B)” motion. On May 5, 1980, Mathis filed a second T.R. 60(B) motion. This motion was denied on October 27, 1980. Mathis filed a motion to correct error on December 24,1980 and it was denied on March 6, 1981. The praecipe was filed March 25, 1981. This appeal followed.

We must affirm the trial court without consideration of the issues raised on appeal. We affirm because any trial court error in denying Mathis’ denominated T.R. 60(B) motion was not preserved for appeal.

In Snider v. Gaddis, (1980) Ind.App., 413 N.E.2d 322, this court extensively discussed the appropriate distinct functions of Indiana Rules of Procedure, Trial Rules 59 and 60(B).

“It is firmly established that a motion for relief from judgment under T.R. 60(B) may not be used as a substitute for a direct appeal based upon a timely motion to correct errors under Ind.Rules of Procedure, Trial Rule 59. Toller v. Toller, (1978) Ind.App., 375 N.E.2d 263; In re Marriage of Robbins, (1976) 171 Ind.App. 509, 358 N.E.2d 153; York v. Miller, (1975) 167 Ind.App. 444, 339 N.E.2d 93; Moe v. Koe, (1975) 165 Ind.App. 98, 330 N.E.2d 761; Warner v. Young America Volunteer Fire Dept., (1975) 164 Ind.App. 140, 326 N.E.2d 831. Neither can a T.R. 60(B) motion be employed to revive an expired attempt to appeal. York v. Miller, supra. The proper function of T.R. 60(B) is to afford relief from circumstances which could not have been discovered during the sixty day period in which a *816T.R. 59 motion to correct errors could have been filed with the trial court. In re Marriage of Robbins, supra.
“Thus, it seems clear that any matter which was known to or discoverable by a party within the period when a timely motion to correct errors could have been filed must be raised in a motion to correct errors under T.R. 59 and made the subject of a proper and timely appeal if appellate review is to be had. Any such issue which was raised by, or could have been raised by a timely motion to correct errors and a timely direct appeal may not be the subject of a motion for relief from judgment under T.R. 60.” (footnote omitted)

413 N.E.2d at 324, 326.

Thus any attack upon any appealable final order or judgment, including a judgment by default, encompassed upon the grounds and bases provided by T.R. 59 and T.R. 60(B)1 which are discovered or discoverable with due diligence not later than sixty days after the entry of an appealable final order or judgment, including a judgment by default, shall be made by a T.R. 59 motion. No further motion to correct errors is required for an appeal of any error in denying the motion to correct errors. Any attack upon any appealable final order or judgment, including a judgment by default, upon the grounds and bases provided by T.R. 59 and T.R. 60(B) which are neither discovered nor discoverable with due diligence not later than sixty days after the entry of an appealable final order or judgment, including a judgment by default, shall be made by a T.R. 60(B) motion. Any error in denying the T.R. 60(B) motion must thereafter be raised by a timely filed T.R. 59 motion.

We recognize the Snider decision was handed down eight (8) months after the trial court entered the subject default judgment. However, the Snider decision is a reaffirmance of our earlier decision of Warner v. Young America Volunteer Fire Dept., (1975) 164 Ind.App. 140, 326 N.E.2d 831, which also held the right to attack a judgment by a T.R. 60(B) motion is limited to errors which by due diligence could not have been discovered in time to file a timely T.R. 59 motion to correct errors.

That Mathis filed his denominated T.R. 60(B) motion twenty (20) days after the trial court’s judgment attests to the fact the alleged errors were known to him within the period in which a timely motion to correct error could have been filed. T.R. 59(C) (1980). Therefore, his only recourse was to file a T.R. 59 motion to correct error. However, when we treat his denominated T.R. 60(B) motion as a T.R. 59 motion, we find he failed to file a timely praecipe. Ind.Rules of Procedure, Appellate Rule 2(A). Furthermore, Mathis failed to file any motion after the time had expired for a T.R. 59 motion to correct error which alleged any error which was not discovered, or discoverable with due diligence, during the sixty (60) day period for filing a T.R. 59 motion.

Finally, to negate any misunderstanding by the bench or bar, we specifically disapprove Dawson v. St. Vincent Hospital & Health Center, Inc., (1981) Ind.App., 426 N.E.2d 1328, to the extent it holds a T.R. 60(B) motion filed within sixty (60) days of a default judgment is not treated as a T.R. 59 motion if it invokes the equity powers of the trial court.

Judgment affirmed.

BUCHANAN, C. J., concurs. SULLIVAN, J., dissents, with separate opinion.

. Any ground for a T.R. 60(B) motion not specifically included as the basis for a T.R. 59 motion to correct error is incorporated as a basis by T.R. 59(A)(9). Similarly, T.R. 60(B)(2) incorporates any basis for a T.R. 59 motion to correct error as a ground for relief under T.R. 60(B).