ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
ALLSTATE INSURANCE COMPANY TED AND ROSELLA FIELDS
Patrick J. Dietrick Karl L. Mulvaney Kenneth J. Allen
Collignon & Dietrick, P.C. Nana Quay-Smith David W. Conover
Indianapolis, Indiana Candace L. Sage Michael T. Terwilliger
Bingham McHale LLP William Lazarus
Ronald D. Getchey Indianapolis, Indiana Kenneth J. Allen & Associates, P.C.
Luce, Forward, Hamilton Valparaiso, Indiana
& Scripps LLP
San Diego, CA
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 45S05-0506-CV-291
ALLSTATE INSURANCE COMPANY, Appellant (Intervenor-Defendant below),
v.
TED FIELDS AND
ROSELLA M. FIELDS, Appellees (Plaintiffs below).
and
JIMMIE L. WOODLEY, (Defendant below) 1
_________________________________
Appeal from the Lake Circuit Court, No. 45C01-9510-CT-1927
The Honorable Lorenzo Arredondo, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 45A05-0308-CV-397
_________________________________
February 22, 2006
Dickson, Justice.
1
Defendant Jimmie L. Woodley is not seeking relief on appeal, and has not filed a brief as appel-
lant or appellee. Pursuant to Indiana Appellate Rule 17(A), however, a party of record in the trial court is
a party on appeal. As filed, the appeal lists Woodley's name first and identifies him as an appellant. The
above caption more accurately reflects the respective roles of the parties in this appeal.
Allstate Insurance Company initiated this interlocutory appeal when the trial court denied
its motion seeking relief under Indiana Trial Rule 60(B) from an order defaulting Allstate on li-
ability and set the case for trial on damages only after Allstate refused to comply with court or-
ders. This appeal challenges not only the denial of Allstate's motion for relief from default, but
also the denial of its motions for partial summary judgment and for an order in limine limiting
evidence at the damages trial. Allstate had not obtained or sought trial court certification pursu-
ant to Appellate Rule 14(B) to bring an interlocutory appeal on any of the issues. The plain-
tiffs/appellees, Ted and Rosella Fields, challenged the jurisdiction of the Court of Appeals in an
unsuccessful motion to strike and dismiss and again in their reply brief. The Court of Appeals
found that it had jurisdiction under Indiana Trial Rule 60(C) because one issue was the denial of
relief from the default, and it also concluded that Indiana Appellate Rule 66(B) provided a basis
for it to exercise appellate jurisdiction over the other interlocutory issues, ultimately deciding
that one of these other issues, the denial of Allstate's motion for partial summary judgment, was
incorrectly decided. Woodley v. Fields, 819 N.E.2d 123, 130, 132-33 (Ind. Ct. App. 2004). We
granted transfer, thereby automatically vacating the decision of the Court of Appeals pursuant to
Indiana Appellate Rule 58(A), and we now dismiss the appeal, holding that Indiana Trial Rule
60(B) authorizes a motion for relief only from final, not interlocutory, orders, and that no appeal
may be taken under Trial Rule 60(C) from the denial of a motion for relief from an interlocutory
order granting default judgment on less than all issues.
The rules governing Indiana trial and appellate proceedings generally restrict appellate
recourse until after the entry of a final judgment or other final action by the trial court. The au-
thority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is
generally limited to appeals from final judgments. See Ind. Appellate Rules 4(A)(1), 5(A). A
trial court judgment "as to one or more but fewer than all of the claims or parties" is a final ap-
pealable judgment only "when the court in writing expressly determines that there is no just rea-
son for delay, and in writing expressly directs entry of judgment." Ind. Trial Rule 54(B). But a
"judgment, decision or order as to less than all the claims and parties is not final." Id. An excep-
tion is made by Indiana Appellate Rule 14 for appeals from certain kinds of interlocutory orders
enumerated in the rule, see App. R. 14(A), and for appeals from other interlocutory orders only if
the trial court certifies its order to allow an immediate appeal, and the Court of Appeals accepts
2
jurisdiction over the appeal. App. R. 14(B). Although acknowledging that the challenged trial
court rulings are interlocutory, Allstate contends that they are nevertheless presently reviewable
pursuant to Trial Rule 60(C) because of the trial court's denial of its motion for relief from the
order of default as to liability.
Trial Rule 60 is entitled "Relief from judgment or order." Even after the deadlines have
passed for filing a motion to correct error under Trial Rule 59 or for initiating an appeal under
Appellate Rule 9, a party may nevertheless seek relief under limited circumstances as provided
in Rule 60. Section (A) addresses the correction of clerical mistakes. Section (B) defines a pro-
cedure and specifies grounds for a party seeking relief from certain trial court actions. Section
(C) deals primarily with the appealability of trial court rulings upon motions presented under sec-
tion (B). In relevant part, the rule states:
(B) Mistake—Excusable neglect—Newly discovered evidence—Fraud, etc. On mo-
tion and upon such terms as are just the court may relieve a party or his legal representa-
tive from an entry of default, final order, or final judgment, including a judgment by de-
fault, for the following reasons:
***
(C) Appeal—Change of venue. A ruling or order of the court denying or granting relief,
in whole or in part, by motion under subdividsion (B) of this rule shall be deemed a final
judgment, and an appeal may be taken therefrom as in the case of a judgment.
T.R. 60.
Since the original adoption of Indiana Trial Rule 60(B), there have been three variations
of the language identifying the types of trial court action to which it applies. When first promul-
gated in 1969, subsection (B) permitted a trial court to grant relief "from a final judgment, order,
default or proceeding." INDIANA RULES OF PROCEDURE (1969, effective January 1, 1970). This
was amended in 1980 to read "from an order, entry of default, proceeding, or final judgment by
default." 4 William F. Harvey, INDIANA PRACTICE – RULES OF PROCEDURE ANNOTATED 212-13.
A further amendment in 1981 resulted in the present language: "from an entry of default, final
order, or final judgment, including a judgment by default." Id. The purpose for the 1981 change
was explained in Comments by the Indiana Supreme Court Committee on Rules of Practice and
Procedure:
3
The first sentence of Section (B) is amended and the amendment is necessitated in
part by the possible construction of Trial Rule 60(B) in its present form which would
permit, pursuant to Trial Rule 60(C), a direct appeal from a denial of Trial Rule 60(B) re-
lief sought against an interlocutory order. Pathman Constr. Co. of Highland Park v.
Drum-Co Eng'g Corp., 402 N.E.2d 1 (Ind. Ct. App. 1980). The word "proceeding" has
been deleted because a party does not seek relief from a proceeding but from an order or
a judgment.
4 Harvey, supra, at 212. We understand this explanation to indicate an intent to adhere to Path-
man.
In Pathman, when the defendants did not timely respond to the plaintiff's request for ad-
missions, the trial court entered an order deeming matters admitted. The defendant filed a mo-
tion under Trial Rule 60(B) seeking relief from the order. The trial court denied the motion and
granted the plaintiff's motion for summary judgment. On appeal, the defendant challenged the
court's denial of its 60(B) motion for relief. On this issue, the Court of Appeals, referring to the
language of Rule 60(B) before its 1980 amendment, noted that the rule "as written at the time in
question, is somewhat lacking in clarity," but interpreted it to state that "relief is only available
from a final judgment, order, default or proceeding." Pathman, 402 N.E.2d at 6 (emphasis in
original). The court held that the order denying the motion for relief "can be considered to be
interlocutory in nature because it does not determine the entire controversy nor does it decide the
case on its merits." Id. In interpreting the rule to apply only to final judgments, orders, or pro-
ceedings, the court noted the absence of Indiana precedent and turned to federal cases, which it
found to "uniformly require finality." Id.
Rule 60 under the Federal Rules of Civil Procedure is similar to Indiana's Rule. But in
contrast to Indiana's Rule 60(B), which permits relief "from an entry of default, final order, or
final judgment, including a judgment by default," its federal counterpart allows relief "from a
final judgment, order, or proceeding." FED. R. CIV. P. 60(b). This provision within the federal
rules has been interpreted as being applicable only to final judgments.
Rule 60(b), however, as amended in 1948, applies only to "a final judgment, order, or
proceeding." Thus, the power of a court to modify an interlocutory judgment or order at
any time prior to final judgment remains unchanged and is not limited by the provisions
of Rule 60(b). The rule does apply, however, to all final judgments, including consent
4
and default judgments as well as those entered after contest. 2
Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2852, p. 233-235 (1995) (cita-
tions omitted).
We find no basis for construing the specific inclusion of the phrase "entry of default" in
the Indiana rule so as to apply to interlocutory orders of default that do not constitute a final
judgment. To the contrary, fairness and sound judicial administration do not favor granting an
exceptional privilege of immediate appellate access to a party defaulted for failure to comply
with applicable rules or court orders. In light of Pathman and the 1981 amendment intended to
reflect its holding, Professor Harvey correctly states that Indiana Trial Rule 60(B) "does not ap-
ply to interlocutory orders, and a party may seek relief only from a final judgment or order that
determines the entire controversy or decides the case on the merits." Harvey, supra, at 220.
Requiring that Rule 60(B) be limited to relief from final judgments or orders does not
undermine the function of Rule 60(C), which provides that a ruling denying or granting relief
under 60(B) "shall be deemed a final judgment, and an appeal may be taken therefrom as in the
case of a judgment." T.R. 60(C). The function of Rule 60(B) is to permit parties to challenge a
judgment at a point subsequent to the expiration of the time allowed for filing a motion to correct
error or initiating an appeal. When a trial court denies such a 60(B) motion, a party aggrieved
thereby must have an opportunity to appeal. Trial Rule 60(C) establishes that such a ruling con-
stitutes a final judgment, thus permitting an appeal, and triggers the timing deadline for taking
such an appeal. If a 60(B) motion is granted, thus reopening a final judgment, the rule likewise
deems such a grant to be an appealable final order, providing immediate appellate access to an
aggrieved party who had previously obtained a final judgment in its favor.
2
The Advisory Committee Note to the amendment of Rule 60(b) in 1948, which modified the federal rule
to read substantially as it does today, says:
The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or
proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not
brought within the restrictions of the rule, but rather they are left subject to the complete power of
the court rendering them to afford such relief from them as justice requires.
Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2852, p. 233-34, n.8. (1995).
5
Although Rule 60(B) applies to permit limited challenges only to final orders or judg-
ments, a party is not prevented during the pendency of a case to seek reconsideration of an inter-
locutory ruling by the trial court. The Trial Rules recognize this common practice, but provide
that no hearing is required upon such a motion. T.R. 53.4. In the present case, it was thus en-
tirely permissible for Allstate to request the trial court to reconsider its entry of default on the
issue of liability. The important consequence is that such a motion for reconsideration of an en-
try of default is not a request for relief under Trial Rule 60(B), the denial of which would be
"deemed a final judgment, and an appeal may be taken therefrom" pursuant to Trial Rule 60(C).
The denial of such a request for reconsideration would instead be an interlocutory ruling not sub-
ject to immediate appeal except pursuant to Appellate Rule 14.
Even though Allstate styled its motion as presenting a Rule 60(B) request for relief from
default, it would have been proper for the trial court to treat it as a request for reconsideration.
The trial court here considered the motion on its merits and denied it. Allstate did not obtain cer-
tification for interlocutory appeal from the trial court. It was therefore not entitled to present an
interlocutory challenge to the trial court's denial of its motion seeking relief from the entry of
default.
The conclusion of the Court of Appeals that it had jurisdiction to address Allstate's inter-
locutory challenges is predicated on its mistaken assumption that Rule 60(C) automatically per-
mits an immediate appeal from the denial of a 60(B) motion for relief from the order of default.
Woodley, 819 N.E.2d at 131-32. Thus finding jurisdiction under Rule 60(C), the court pro-
ceeded to "invoke our discretion" under Appellate Rule 66(B) and address "all of Allstate's is-
sues raised on appeal." Id. at 130. Since the time the Court of Appeals issued its decision in the
present case, however, we decided Daimler Chrysler Corp. v. Yaeger, 838 N.E.2d 449 (Ind.
2005), in which we held "that Appellate Rule 66(B) does not authorize an interlocutory appeal
that fails to comply with Appellate Rule 14," id. at 449-50, and dismissed the appeal because
Daimler Chrysler had failed to first seek and obtain certification from the trial court authorizing
an appeal from the interlocutory order. Id. at 450.
In view of the absence of jurisdiction to decide Allstate's appeal from the denial of its
6
motion for relief from the interlocutory entry of default, we conclude that there is no jurisdiction
under Appellate Rule 66(B) to decide any of the other issues raised by Allstate in this appeal.
Having previously granted transfer, thereby vacating the decision of the Court of Ap-
peals, this appeal is now dismissed, and the cause remanded to the trial court for further proceed-
ings.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
7