Lee v. Hawthorne , 1987 Ind. App. LEXIS 3348 ( 1987 )

HOFFMAN, Judge.

Jack E. Lee (Lee) appeals from the Kosciusko Circuit Court's order setting aside a partial default judgment against James R. Hawthorne and Marianne Hawthorne (Hawthornes). The sequence of events that led to this appeal is as follows: This case began as an action for a dissolution of a partnership between Jack E. Lee and James R. Hawthorne. Lee's complaint was later amended to include allegations regarding a promissory note and to add Mar-anne Hawthorne as an additional defendant. On August 2, 1985, the Hawthornes failed to appear at a scheduled pre-trial conference where the trial court struck the Hawthornes' answer and defaulted them. On that same day, Lee. obtained partial judgment by default on the portion of his complaint alleging non-payment of the promissory note. On October 7, 1985, the trial court ordered that the partial judgment of default be made a final judgment.

On November 5, 1985, the Hawthornes filed a motion to set aside the judgment of default, which motion was entitled "Motion to Correct Errors." The trial court granted the Hawthornes' motion on December 4, 1985 and at the same time the judge disqualified himself from the case because of prior dealings with the parties. Lee on December 18, 1985 filed a Motion to Correct Errors which was granted by the judge, who then ordered that the December 4, 1985 grant of the Hawthornes' motion be set aside and the Hawthornes' motion be reheard by the special judge newly assigned to the case.

The special judge heard argument on the Hawthornes' motion filed November 5, 1985 and, on September 9, 1986, the special Judge granted the Hawthornes' motion and set aside the partial default judgment previously entered. The record submitted on appeal shows no motion to correct errors filed by Lee after the September 9, 1986 ruling.

It is because Lee filed no motion to correct errors from the September 9, 1986 ruling that this appeal must be dismissed. Despite its self-characterization as a "Motion to Correct Errors," the Haw-thornes' November 5, 1985 motion to set aside the default judgment is properly treated as a Trial Rule 60(B) motion. See, Burns v. St. Mary Medical Center (1987), Ind.App., 504 N.E.2d 1038, 1040. In Siebert Oxidermo, Inc. v. Shields (1983), Ind., 446 N.E.2d 332, the Indiana Supreme Court cleared up years of confusion and conflict among the districts of the Court of Appeals regarding the correct procedure for appealing from an adverse ruling on a T.R. 60(B) motion. The Supreme Court in Siebert Oz-idermo held that, in order to preserve the issue for appellate review, the aggrieved party must file a Trial Rule 59 motion to correct errors after the trial court has ruled on the T.R. 60(B) motion. 446 N.E.2d at 337. A default judgment may only be attacked by a T.R. 60(B) motion and thus cannot be attacked by a T.R. 59 motion to correct errors.

Lee's December 18, 1985 motion to correct errors is not a fulfillment of the Siebert Oxidermo requirement for purposes of this appeal. Lee's December 18, 1985 motion to correct errors was addressed to the original trial court judge's December 4, 1985 ruling and "was in fact granted in that the judge vacated his ruling in favor of allowing the special judge to rule on the Hawthornes' November 5, 1985 motion. The ruling at issue in this appeal is the September 9, 1986 order by the special judge granting the Hawthornes' motion to vacate the default judgment. Since Lee failed to file a T.R. 59 motion to correct errors from that ruling as required by Siebert Oxidermo, supra, any potential error was not preserved and this appeal must be dismissed.

Appeal dismissed.

GARRARD, P.J., concurs with opinion. SULLIVAN, J., dissents with opinion.