Brendonwood Common v. Kahlenbeck

416 N.E.2d 1335, 1981 Ind. App. LEXIS 1294

• Court: Indiana Court of Appeals
• Decided: March 9, 1981
• Docket: 2-1179 A 352
• Status: Published

Opinions

SHIELDS, Judge.

Brendonwood Common (Brendonwood) appeals from the trial court’s denial of a motion under Indiana Rules of Procedure, T.R. 60(B) to vacate and re-enter a judgment so as to permit an appeal on the merits.

We affirm.

Appellees Howard and Sally Kahlenbeck filed a complaint for a preliminary and permanent injunction. Hearings were held on the complaint on February 15 and February 22,1979. At the conclusion of the February 22 hearing the trial judge requested proposed findings and informed the parties:

“But I’ll tell you right now, I’m not going to be on this for a little while. I’ve got some other cases under advisement that I have to get out first.”

Brendonwood’s proposed findings were mailed to the trial court on February 26, 1979; Kahlenbecks’ proposed findings, previously submitted to the court, were mailed March 3, 1979, and received by Brendon-wood on March 7,1979. The record is silent as to the date Kahlenbecks’ proposed findings were submitted to the court, but it was on or before March 1, 1979 because their proposed findings were in fact adopted and entered by the trial court. On March 1, 1979, the trial court granted the injunction and entered judgment in favor of the Kah-lenbecks. Neither party received notice of the entry of judgment or was aware judgment had been entered until May 11, 1979, well after the time allowed for filing a motion to correct errors had elapsed. On May 25, Brendonwood filed its motion for relief from judgment in which Brendon-wood sought to have the judgment vacated and re-entered so that it could file a timely motion to correct errors. This motion was denied.

Brendonwood contends on appeal that, because it was misled by the court as to when judgment would be entered and it failed to receive notice of the entry of judgment, the trial court was required to grant relief from the judgment. The Kahlen-becks contend that T.R. 72(D) provides in pertinent part:

“Immediately upon the entry of a ruling upon a motion, an order or judgment the clerk shall serve a notice of the entry .... Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in the Appellate Rules.”

On its face T.R. 72(D) apparently bars the relief sought by Brendonwood. However, it is settled that in cases presenting mitigating circumstances or special hardship a trial court, in the exercise of its equitable discretion under T.R. 60(B), may relieve a party who did not receive notice of entry of a ruling, order, or judgment from the strict application of T.R. 72(D). Soft Water Utilities, Inc. v. LeFevre, (1973) 261 Ind. 260, 301 N.E.2d 745; The Buckeye Cellulose Corp. v. Braggs Electric Construction Co., (8th Cir. 1977) 569 F.2d 1036; Fidelity & Deposit Co. of Md. v. USAFORM Hail Pool, Inc., (5th Cir. 1975) 523 F.2d 744; Expedition Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, (1974) 163 U.S.App.D.C. 140, 500 F.2d 808; Smith v. Jackson Tool & Die, Inc., (5th Cir. 1970) 426 F.2d 5.

In Soft Water Utilities Inc., the Indiana Supreme Court affirmed a vacation and re-entry of a ruling on a motion to correct errors. There the appellant did not receive notice of the entry on the ruling. However, counsel for appellant was diligent in attempting to ascertain the trial court’s ruling but received misinformation from the clerk on the day the motion was ruled upon. The court held that this situation was a “reason justifying relief from the operation of a judgment.” 301 N.E.2d at 750.

In Buckeye Cellulose, Fidelity and Deposit Co., Expedition Unlimited, and Jackson Tool & Die none of the parties knew of the entry of judgment and none could be said to have relied on it. Furthermore, in each case counsel diligently sought to discharge the duty implicit in Federal Rules of Civil Procedure 77(d) to make inquiries to discover the status of the case.¹

In the case at hand, Brendonwood alleged it was misled by the trial court and did not receive notice of entry of judgment.

We first question the reasonableness of Brendonwood’s claim that it was misled. It equates the trial judge’s statement, “I am not going to be on this for a little while,” to its claim that “it would be some time before judgment was rendered.” That conclusion is not necessarily mandated by the trial judge’s statement. Furthermore, this statement alone would not relieve Brendon-wood of its duty to make suitable inquiries to discover the status of the case. Ed Martin Ford Co., Inc. v. Martin, (1977) Ind.App., 363 N.E.2d 1292. This is especially true from the point in time the parties had supplied the trial judge with her requested proposed findings. This duty is implicit in T.R. 72(D) and is expressly imposed by Marion County Rules of Practice and Procedure Rule 21(C). We specifically observe all counsel are from Marion County, Indiana and therefore had ready access to the records of the court and clerk of Marion County. Brendonwood did not allege, nor did it show, that it exercised due diligence in ascertaining the status of the case.

A motion under T.R. 60(B) is addressed to the sound discretion of the trial court. The burden is properly upon the movant to affirmatively demonstrate that relief is necessary and just. Soft Water Utilities, Inc. v. LeFevre, (1973) 261 Ind. 260, 301 N.E.2d 745. Under the circumstances of this case, absent a showing of diligence notwithstanding the trial judge’s statement, we cannot say the trial court clearly abused its discretion in denying the motion for relief from judgment.

Affirmed.

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

1 . F.R.Civ.P. 77(d) is substantially identical to Indiana’s T.R. 72(D).