dissenting.
The situation before us presents three questions: (1) Did we properly remand , this case under Logal?; (2) Do we retain jurisdicT tion to. continue a stay once we terminate a ease under Logal?; (3) Did the language of our orders continue the stay after the appeal was terminated? Because I believe all of these questions must be answered in the negative, I respectfully dissent.
THE PROPRIETY OF THE REMAND
In Logal v. Cruse, the Indiana Supreme Court set out the procedure to be followed when a party who has initiated an appeal wishes to present newly discovered evidence to the trial court under Indiana Trial Rule 60(B). 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 539 (1978). The supreme court concluded that the taking of an appeal should not preclude a party from pursuing remedies under Rule 60(B), and thus adopted the following procedure:
(1) The moving party files with the appellate court an application for leave to file his 60(B) motion. This application should be verified and should set forth the grounds relied upon in a specific and non-conclusory manner.
(2) The appellate court will make a preliminary determination of the merits of the movant’s 60(B) grounds. In so doing the appellate court will determine whether, accepting appellant’s specific, non-conclusory factual allegations as true there is a substantial likelihood that the trial court would grant the relief sought. Inasmuch as an appellate court is not an appropriate tribunal for the resolution of factual issues, the opposing party will not be allowed to dispute the movant’s factual allegations in the appellate,, court.
(3) If the appellate court determines that the motion has sufficient merit, as described in the preceding paragraph, it will remand the entire case to the trial court for plenary consideration of the 60(B) grounds. Such remand order will terminate the appeal and the costs in the appellate court will be ordered taxed against the party procuring the remand. The decision to remand does not require the trial court to grant the motion. If the trial court denies the motion, the movant should file a motion to correct errors addressed to this denial, and appeal the denial. In this new appeal any of the issues raised in the original appeal may be incorporated, without being included in the second motion to correct errors.
(4) If the trial court grants the motion, the opposing party may appeal that ruling under the same terms as described in paragraph (3). The original appeal shall be deemed moot.
(5) If the appellate court denies the application for remand, that ruling may be as*220signed for grounds for rehearing and, where appropriate, transfer.
Id. 368 N.E.2d at 237 (citations omitted). In setting out this procedure, the supreme court noted that motions under Rule 60(B) are subject to time limitations, and concluded that the procedure adopted would “allow full and fair consideration of grounds for relief from judgment with a minimum of disruption of the appellate process.” Id.
Because Logal was developed in the context of 60(B) motions and their accompanying time limitations, the process set out in Logal would not apply to applications to present additional evidence after the denial of a preliminary injunction. Logal was clearly directed towards preserving a party’s right to appeal without forfeiting the right make a 60(B) motion. The adoption of a procedure to preserve both remedies was necessary because if the time for presenting the 60(B) motion expired while the appeal was pending, the party would lose his chance to successfully present the motion. That situation is not presented in the ease before us.
A preliminary injunction is an interlocutory order, and as such, it would not be subject to a motion to present new evidence under Trial Rule 60(B). It would be unnecessary to make a Rule 60(B) motion after the denial of a preliminary injunction because, as we noted in our order, any new evidence could have been presented at a hearing on a permanent injunction; the denial of the preliminary injunction was not res judicata. The very nature of interlocutory orders is that the case is not fully developed and new evidence will most likely be discovered by the time the ease proceeds to a final hearing on the merits. Thus, I think our original remand was improper, because the only issue before us was whether the trial court improperly denied the preliminary injunction based upon the evidence before it. If World-corn chose to take an interlocutory appeal, such appeal should have been limited to the evidence produced at the preliminary injunction proceeding; if WorldCom chose instead to present more evidence it should have dismissed its appeal and proceeded with the injunction proceedings in the trial court. The Logal procedure was developed only to “allow full and fair consideration of grounds for relief from judgment with a minimum of disruption of the appellate process.” Id.-WorldCom had an opportunity to present its evidence without any disruption of the appellate process because its injunction had not yet been fully adjudicated on the merits.
By applying Logal to the case before us we have allowed WorldCom the benefits of a successful appeal without us ever having reached the merits of whether the trial court improperly denied the preliminary injunction. In effect, we overturned the denial of the preliminary injunction by imposing our own injunction until further evidence was presented — evidence that could properly have been presented within the normal progress of proceedings for an injunction. This was an improper interference with the trial court’s function.
JURISDICTION AFTER TERMINATION OF APPEAL
Although I believe we improperly remanded this case under Logal, I must nonetheless address the effects of our order terminating the appeal and remanding the case to the trial court. I disagree with the assertion that Trial Rule 62(D) grants an appellate court authority to continue a stay while a case is remanded to the trial court. The plain language of the rule provides for “Stay Upon Appeal” and states that “[t]he provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.” This language clearly indicates that the powers stated exist only while the appeal is pending.
I further disagree with the proposition that we retained any jurisdiction in this case once we terminated the appeal and remanded the case under Logal. Under Logal, this Court would remand the entire case to the trial court if the 60(B) motion had sufficient merit, and such remand order would terminate the appeal; Logal does not provide for *221the suspension of the appeal. See Logal, 368 N.E.2d at 237. This language used by the Indiana Supreme Court in setting forth the procedure, that the entire case is remanded and the appeal,is terminated, negates any inference that the appellate court would retain any jurisdiction over the case once it'was remanded.
The purpose of the remand is- to reinvest jurisdiction in the trial court so as to initiate the Trial Rule 60(B) proceedings. • The trial court is not required to grant the Rule 60(B) motion, and any action the trial court takes with respect to the motion is then subject to appeal; thus we would not need to retain jurisdiction to effectuate any mandate as is suggested in the proposed orders. If the trial court denies the motion, a new appeal is addressed to that denial; however, in that new appeal the party may incorporate any issues raised in the original appeal without including them in the motion to correct errors. Id. If the trial court grants the Rule 60(B) motion, the opposing party may then appeal that grant and the original appeal is deemed moot. Id. It is clear from this procedure that the appeal is not suspended, but rather terminated, and we would retain no jurisdiction over the case once the appeal was terminated.
This situation differs from those cases in which we have addressed the merits of an appeal and retain the power to effectuate a mandate,5 because we do not reach the merits of the case but rather terminate the appeal so the trial court can rule on the motion to hear more evidence. It was Worldcom’s choice to terminate the appeal and instead present additional evidence to the trial court. Worldcom cannot seek to have us retain jurisdiction for the purpose of the stay and at the same time divest ourselves of jurisdiction to allow it to present its additional evidence.
THE LANGUAGE OF OUR ORDERS
Finally, I believe that even if we did retain jurisdiction to enforce an order after terminating the appeal, we did not continue the stay in this ease. Worldcom initially filed a petition entitled “Appellant’s Verified Emergency Petition for Stay Pending Appeal,” requesting an “Immediate Temporary Stay” until we were able to consider its request for a “Permanent Stay Pending Appeal.” We granted the “Immediate Temporary Stay” until we heard argument on the permanent stay pending appeal. After hearing argument, we then issued an order entitled “Stay Pending Appeal,” which stated that “a stay should be granted pending appeal of the trial court denial of appellant Worldcom’s request for a preliminary injunction,” and therefore ordered that the temporary stay “shall remain in effect uptil further order of this court.”
Worldcom then requested leave to present new evidence to the1 trial court in support of its injunction, and asked that we suspend consideration-of the appeal with the stay in effect and remand to the trial court. We granted the request and remanded to the trial court, but did not mention the stay. We then terminated the appeal. In light of our repeated language that the stay was granted pending appeal, the stay was no longer in effect once the appeal was no longer pending. The omission of the stay from our order remanding the ease further supports the interpretation that our grant of the stay was in effect only while the appeal was pending. Thus,' the plain language of our orders ended the stay once the appeal was no longer pending, regardless of our intent. If Worldcom wanted us to continue the stay it should have filed for rehearing requesting that we modify our mandate to include the stay, as we later did.
'Ar
. The scope of the jurisdiction we retain is to ensure that the trial court acts consistently with our order. Skendzel v. Marshall, 263 Ind. 337, 330 N.E.2d 747 (1975). Thus, when the trial court refuses to comply with our order, the aggrieved party should seek a writ of mandate from the appellate court to enforce the order. Id. 330 N.E.2d at 749. The appellate court would then compare the action taken by the trial court to the action ordered to determine if a mandate is warranted.