Houston v. Wireman , 439 N.E.2d 732 ( 1982 )

SHIELDS, Judge.

Appellant Daniel K. Houston appeals the trial court’s grant of appellee Lewis T. Wireman’s motion to correct error and the ensuing order vacating the dismissal of Wireman’s complaint.

The trial court sua sponte entered an order dismissing Wireman’s complaint on May 19, 1981. Wireman filed a “Motion to Vacate” on June 8, 1981 which the trial court denied on July 23, 1981. Then, on August 10, 1981, Wireman filed a “Motion to Correct Errors” which the trial court subsequently granted and ordered Wire-man’s complaint reinstated. This appeal ensued.

We reverse.

In dismissing Wireman’s complaint the trial court was apparently proceeding under Ind. Rules of Procedure, Trial Rule 41(E). This order was a final, appealable order under Hooker v. Terre Haute Gas Corp., (1974) 162 Ind.App. 43, 48, 317 N.E.2d 878, 881. On June 8, 1981 Wireman attacked the dismissal by filing a denominated “Motion to Vacate” pursuant to “Rule 60.”¹ The grounds asserted were trial court error in the trial judge’s reassuming jurisdiction after having disqualified himself and in dismissing the cause sua sponte without issuing a rule to show cause and without a hearing. These grounds were obviously known to Wireman within the time frame for a timely motion to correct error under Ind. Rules of Procedure, Trial Rule 59(C).

We have previously held any error discovered or discoverable with due diligence within the period for filing a timely motion to correct error must be preserved for appeal by the filing of such a motion as opposed to a T.R. 60(B) motion.² However, we treat a denominated T.R. 60(B) motion as a T.R. 59 motion if it substantively raises issues appropriate to a T.R. 59 motion in order to preserve the appellate process. Mathis v. Morehouse, (1982) Ind. App., 433 N.E.2d 814, 816. Accordingly, we find Wireman timely filed a T.R. 59 motion. The trial court overruled the motion on July 23, 1981.

Rather than filing a praecipe, Wireman elected to file a denominated “Motion to Correct Errors” on August 10, 1981. After argument, the trial court granted the motion on December 14, 1981 and ordered the complaint reinstated. Houston then timely perfected this appeal.

Even as we treat a denominated T.R. 60(B) motion filed within the time for a T.R. 59 motion to correct error, so, too, may we treat a T.R. 59 motion filed after sixty days of the final judgment as a T.R. 60 motion with an important exception. A T.R. 60 motion is not a substitute for a direct appeal and, consequently, may not be used to extend the time limitations for a direct appeal. Town of St. John v. Home Builders Association of Northern Indiana, Inc., (1981) Ind. App., 428 N.E.2d 1299. Therefore, to the extent the motion seeks to attack the trial court's ruling on a T.R. 59 motion or raises issues that were discovered or discoverable for a timely T.R. 59 motion, the after-sixty-day motion, however denominated, cannot be substantively treated as a T.R. 60 motion.

The after-sixty-day motion filed by Wireman suffers from the deficiency of raising issues which were unquestionably discovered or discoverable. Therefore, we treat it not as a T.R. 60 motion but as a T.R. 59 motion as it was denominated. As such, it was not timely. The court’s judgment of dismissal was entered May 19,1981 while the motion to correct errors was filed August 10, 1981, eighty-three (83) days later.

Therefore, we are compelled to find the trial court committed reversible error in granting the August motion to correct error and the specific relief of ordering the cause reinstated.

The action of the trial court is reversed and this cause remanded with instructions to vacate the order granting the motion to correct error and reinstating the cause.

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

1 . Ind. Rules of Procedure, Trial Rule 60(B).

2 . On July 28, 1982 the Third District of this court handed down its decision in Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., (1982) Ind. App., 438 N.E.2d 16. In that case, the trial court dismissed the cause for lack of prosecution on August 12, 1980. On September 12, 1980 the plaintiff filed a T.R. 60(B) motion seeking reinstatement. The motion was denied on October 3, 1980, whereupon plaintiff, on December 2, 1980, filed a T.R. 59 motion addressed to the ruling on the T.R. 60(B) motion. The trial court treated the T.R. 60(B) motion as a T.R. 59 motion and therefore denied the December 2, 1980 motion as untimely. This court reversed. The majority concluded that, while a party may appeal directly from a denominated motion to reinstate filed within the limitations of T.R. 59(C) without further motion, the party does not forfeit the right to appeal by filing a timely T.R. 59 motion following the ruling on the motion to reinstate and then awaiting the ruling on the motion to correct error before filing the praecipe for appeal.

There is arguable merit to this position. However, contrary to the majority’s conclusion, the Supreme Court has spoken. By rule it has stated a motion to correct error must be addressed to any error “claimed to have occurred prior to the filing of the motion.” T.R. 59(D)(1). Furthermore, to the extent T.R. 60(B) provides grounds for relief not explicitly enumerated as grounds for relief in T.R. 59(A), it has explicitly incorporated the grounds by the provisions of T.R. 59(A)(9). Thus, the reasonable time envisioned by T.R. 60(B) excludes any error which is discovered or is discoverable by due diligence within the time limitations of T.R. 59(C). Hence, the provisions of T.R. 41(F) and T.R. 55(C), which provide a dismissal with prejudice and a judgment by default “may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B),” must be read in the context of the scheme presented by T.R. 59 and T.R. 60 so that relief may be appropriate under T.R. 60 only so far as the basis for relief was not discovered or was not discoverable with due diligence within the limitations for a timely T.R. 59 motion. See Logal v. Cruse, (1977) 267 Ind. 83, 86, 368 N.E.2d 235, 237, where our supreme court recognized the position of this court expressed in Warner v. Young America Fire Dep’t., (1975) 164 Ind.App. 140, 326 N.E.2d 831, that only grounds which could not have been included in a T.R. 59 motion can be advanced in a T.R. 60(B) motion, and 4 Harvey and Townsend, Indiana Practice 222 (1971), who, in discussing T.R. 60, state:

“The right to raise errors which could be raised by a motion to correct errors is limited to errors which could not have been discovered in time for a motion to correct errors, under Rule 59.”

Requiring a T.R. 59 motion which is directly appealable indeed implements the purpose of T.R. 1 as opposed to allowing a party to substitute, at his option, a T.R. 60(B) motion followed by a T.R. 59 motion with its ensuing delays. Therefore, while we acknowledge the merit of Pre-finished Moulding & Door, Inc., we decline to follow it and await direction from our supreme court as it resolves the conflict. Cf. Mathis v. Morehouse, (1982) Ind. App., 433 N.E.2d 814; Snider v. Gaddis, (1980) Ind. App., 413 N.E.2d 322.