Pre-Finished Moulding & Door, Inc. v. Insurance Guidance Corp.

438 N.E.2d 16, 1982 Ind. App. LEXIS 1339
CourtIndiana Court of Appeals
DecidedJuly 28, 1982
Docket3-781A167
StatusPublished
Cited by7 cases

This text of 438 N.E.2d 16 (Pre-Finished Moulding & Door, Inc. v. Insurance Guidance Corp.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pre-Finished Moulding & Door, Inc. v. Insurance Guidance Corp., 438 N.E.2d 16, 1982 Ind. App. LEXIS 1339 (Ind. Ct. App. 1982).

Opinions

GARRARD, Judge.

This appeal concerns a dismissal pursuant to Indiana Rules of Procedure, Trial Rule 41(E). The case had been fully tried to the court and taken under advisement. When no decision had been rendered after nine months the plaintiff moved to set aside the submission and have the case transferred to a new judge as provided by Trial Rule 53.2.1

The case was transferred to The Honorable Donald W. Jones by the Supreme Court on January 25, 1979. Nothing further happened until February 15, 1980 when the judge issued a rule to show cause why the case should not be dismissed for lack of prosecution. On August 12, 1980 the court dismissed the case on that ground.

On September 12, 1980 the plaintiff filed a TR 60(B) motion seeking to reinstate the case. That motion was denied on October 3, 1980 and on December 2, 1980 plaintiff filed a motion to correct errors addressed to the ruling on the TR 60 motion.

The trial court determined that plaintiff’s original motion to reinstate, which was filed within sixty days after the order of dismissal was in reality a motion to correct errors and that the motion of December 2, 1980 was untimely since it was filed more than sixty (60) days after the order of dismissal. See TR 59(C). This appeal followed.

I.

We must first determine whether the appeal is properly before us. The defendants urge that it is not. They assert that the plaintiff was required to praecipe the appeal pursuant to AP 2(A) within thirty days after the court ruled upon the motion to reinstate and having failed to do so, it forfeited the right to appeal.

[18]*18We are thus invited into “a morass and a mixture of overlap, insufficiency, inconsistency and incomprehensibility,” 2 i.e., the interplay between Trial Rules 59 and 60. The precise question presented is whether or not a party may file a motion to correct errors following the court’s denial of a motion to reinstate a case that has been dismissed pursuant to TR 41(E). A more general question is whether a party may file a motion to correct errors following the denial of a TR 60(B) motion, at least where the 60(B) motion was filed within sixty (60) days after entry of the judgment complained of.

In recent months two districts of this court have reached opposing results on the broader question. Dawson v. St. Vincent Hospital & Health Care Center, Inc. (4th Dist. 1981), Ind.App., 426 N.E.2d 1328 held that following denial of a TR 60(B) motion, a motion to correct errors under TR 59 was required and the failure of appellant to file one resulted in the waiver of the issues sought to be presented. Most recently, in Mathis v. Morehouse (2nd Dist. 1982), Ind.App., 433 N.E.2d 814 (Sullivan, J. dissenting) the court held that such a motion to correct errors was not permitted, did not extend the time for taking an appeal, and that by awaiting the court’s ruling the appellant had forfeited his right to appeal.

The applied rule of law therefore is not only inconsistent but in each case resulted in the loss of opportunity for a review on the merits. We abjure these consequences from a comprehensive set of rules whose purpose is “to secure the just, speedy and inexpensive determination of every action.” TR 1.

We believe that a brief review of the history and operation of the rules of civil procedure points clearly to a better path.

As originally proposed by the Civil Code Study Commission, Trial Rule 59, the motion to correct errors addressed to the trial court, was to be optional with the aggrieved party. Comment to TR 59(G), 4 Harvey & Townsend, Indiana Practice 118. The Supreme Court in adopting the rules, however, determined that in order to give the trial court the first opportunity to correct an error and, at the same time, to provide a “bill of particulars” for the prospective appeal, the motion provided by TR 59 should be mandatory.3 TR 59(G) [Deleted by 1980 amendments.]

Early cases emphasized the necessity of utilizing a TR 59 motion as a precondition to appeal. See, e.g., Indiana State Personnel Board v. Wilson (1971), 256 Ind. 674, 271 N.E.2d 448; and in State v. DePrez (1973), 260 Ind. 413, 296 N.E.2d 120, reh. den. 260 Ind. 413, 300 N.E.2d 341 the court held that where the trial court changed its original judgment in response to a motion to correct errors, a new motion to correct errors was necessary before an appeal could be taken. It was also determined that where relief was requested under TR 60(B) a motion to correct errors was necessary as a precondition to appeal.4 Northside Cab Co. v. Penman (1972), 155 Ind.App. 23, 290 N.E.2d 782.

Trial Rule 41 concerning dismissals and Trial Rule 55 concerning defaults contained specific sections authorizing a party to petition to set aside an order granting an involuntary dismissal or a default judgment “for the grounds and in accordance with the provisions of Rule 60(B).” TR 41(F); TR 55(C). Both of these provisions were interpreted to mean that a motion to reinstate the action was in fact a TR 60(B) motion. In Northside Cab Co., supra, the court interpreted the rules to reach the merits of an appeal from the trial court’s refusal to set aside a default judgment where the appellant had, in fact, filed a motion to correct errors as a prelude to appeal.

[19]*19Two years later in Hooker v. Terre Haute Gas Corp. (1974), 162 Ind.App. 43, 317 N.E.2d 878 the court applied this construction to TR 41(E). However, in Hooker the appellant had filed two motions to reinstate the appeal (the second one being filed more than three months after the denial of the first.) When the second motion was denied the appellant then filed a motion to correct errors addressed to that ruling and ultimately attempted to appeal the denial of that third motion. The court held he was too late but the principle upon which the case turned was that TR 60(B) is not intended to be either a substitute for timely appeal (i.e., use of a TR 59 motion following entry of judgment) or a means to relitigate a particular issue or ruling again and again. See, e.g., Snider v. Gaddis (1980), Ind.App., 413 N.E.2d 322; Warner v. Young America Vol. Fire Dept. (1975), 164 Ind.App. 140, 326 N.E.2d 831.5

In this context and in the aftermath of DePrez the court in Yerkes v. Washington Mfg. Co., Inc. (1975), 163 Ind.App. 692, 326 N.E.2d 629 faced the situation where an appellant having suffered a default judgment on a counterclaim filed only what was denominated a motion to correct errors and then attempted to appeal.

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Pre-Finished Moulding & Door, Inc. v. Insurance Guidance Corp.
438 N.E.2d 16 (Indiana Court of Appeals, 1982)

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438 N.E.2d 16, 1982 Ind. App. LEXIS 1339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pre-finished-moulding-door-inc-v-insurance-guidance-corp-indctapp-1982.