Kerry Wagoner and Wagoner Trucking, Inc. v. Rugged Enterprises, LLC

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Dec 13 2012, 9:19 am
court except for the purpose of establishing
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
JARED MICHEL THOMAS JAMES G. MCDONALD
Evansville, Indiana Princeton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KERRY WAGNER and )
WAGNER TRUCKING, INC., )
)
Appellants, )
)
vs. ) No. 26A05-1206-CC-333
)
RUGGED ENTERPRISES, LLC, )
)
Appellee. )
APPEAL FROM THE GIBSON CIRCUIT COURT
The Honorable Jeffrey Meade, Judge
Cause No. 26C01-0905-CC-101
December 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Kerry Wagner appeals the denial of his motion for relief from default judgment
rendered in favor of Rugged Enterprises, LLC (Rugged) in Rugged’s action against Wagner
and Wagner Trucking, Inc. for repayment of money mistakenly paid to Wagner Trucking by
Rugged and which thereafter Wagner Trucking refused to refund to Rugged. Wagner
presents the following restated issue for review: Did the trial court err in denying his motion
for relief from judgment without first conducting a hearing?
We affirm.
The facts are that Rugged is an Oregon business and Wagner Trucking is an Indiana
corporation. On December 30, 2008, Rugged incorrectly sent a check payable to Wagner
Trucking in the amount of $10,000.00. Wagner deposited the check into a checking account
on January 8, 2009, although he knew Rugged did not owe Wagner Trucking any money for
goods or services. After discovering the error, Rugged asked Wagner to reimburse Rugged.
Although acknowledging receipt of the wrongful payment, Wagner and Wagner Trucking
refused to refund the money. On May 27, 2009, Rugged filed the present action against
Wagner Trucking and Wagner individually in Gibson Circuit Court, seeking repayment of the
$10,000, plus costs and interest. Both defendants were served with the complaint but failed
to appear in the matter or file an answer. The trial court granted Rugged’s motion for default
judgment on July 21, 2009.
On August 4, 2010, Wagner Trucking filed for protection under Chapter 7 of the
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United States Bankruptcy Code. On May 11, 2012, 1 Wagner filed a Trial Rule 60(B)(8)
motion for relief from judgment and requested a hearing on the motion. The trial court set a
tentative hearing date for June 27. The court indicated it would allow Rugged to respond to
Wagner’s motion, and that the “hearing possibly could be vacated”, depending upon
Rugged’s response. Appellant’s Appendix at 130. On June 1, 2012, Rugged filed an
objection to Wagner’s motion for relief from judgment. On June 8, 2012, the trial court
denied Wagner’s motion without a hearing.
Wagner contends the trial court erred in denying his motion for relief from judgment
without conducting a hearing. We review a ruling upon a T.R. 60(B) motion for relief from
judgment for an abuse of discretion. In re Marriage of K.Z. & M.H., 961 N.E.2d 1023 (Ind.
Ct. App. 2012). An abuse of discretion occurs where the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it or is contrary to law. Id.T.R. 60(B) states, in relevant part:
On motion and upon such terms as are just the court may relieve a party or his
legal representative from a judgment, including a judgment by default, for the
following reasons:
(1) mistake, surprise, or excusable neglect;
* * * * *
(8) any reason justifying relief from the operation of the judgment,
other than those reasons set forth in sub-paragraphs (1), (2), (3), and
(4).
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By this time, Wagner had paid “the majority” of Rugged’s judgment against them. Appellant’s Appendix at
49.
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The motion shall be filed within a reasonable time for reasons (5), (6), (7), and
(8), and not more than one year after the judgment, order or proceeding was
entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for
reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. A
motion under this subdivision (B) does not affect the finality of a judgment or
suspend its operation. …
T.R. 60(B) prescribes two separate limitation periods governing motions filed under its
auspices. Relief sought under T.R. 60(B)(1)-(4) must be filed “not more than one year after
the judgment, order or proceeding was entered or taken.” Id. On the other hand, petitions for
relief under T.R. 60(B)(5)-(8) “shall be filed within a reasonable time[.]” Id. Therefore, we
must examine the basis for Wagner’s request for relief in order to determine the applicable
limitations period.
In the motion for relief from judgment, Wagner, individually, asked the court to set
aside the default judgment on grounds that he should not be held liable individually for the
corporate debt of Wagner Trucking. Wagner’s motion was ostensibly premised upon
subsection (8), T.R. 60(B)’s catch-all provision. In relevant part, Wagner set out the grounds
for relief as follows:
Plaintiff’s original complaint against Defendants Wagner Trucking, Inc. and
WAGNER specifically stated that the check at issue in this case was addressed
to Wagner Trucking, Inc. An individual cannot be held liable for the debts of
a business except under specific circumstances under which the Plaintiff can
pierce the corporate veil. Plaintiff did not specifically allege any
circumstances under which the corporate veil of Wagner Trucking, Inc. should
be pierced to hold WAGNER individually liable for the debts of the business.
WAGNER did not appear for Plaintiff’s original complaint in his [sic] Court
because Wagner Trucking Inc. had filed for bankruptcy. It was WAGNER’s
belief that there was enough collateral to satisfy the debts of the creditors of
Defendant Wagner Trucking Inc. in his Chapter 7 bankruptcy action. Because
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of his belief that all claims by creditors of the business would be handled
during the bankruptcy proceeding, WAGNER did not appear nor respond
during the filing of Plaintiff’s original complaint nor their [sic] petition for
default judgment.
WAGNER cannot be held liable for the debts of Wagner Trucking Inc., except
under specific circumstances under the laws of the State of Indiana. The
default judgment of this Court in favor of the Plaintiff against Wagner
Trucking Inc. and WAGNER was improper as Plaintiff has not shown good
cause to pierce the corporate veil to hold WAGNER individually liable for the
debts of Wagner Trucking Inc. WAGNER being held indivduals [sic] liable
for the debts of a business under a default judgment is an extraordinary
circumstance under which this Court can relieve WAGNER under Indiana
Rule of Trial Procedure 60(B)(8).
Appellant’s Appendix at 40.
Wagner claims his motion is premised upon the “extraordinary circumstance” that the
default judgment rendered him personally liable when the complaint for damages did not
allege facts that would support “piercing Wagner Trucking’s corporate veil”, thus bringing it
under the catch-all provision, subsection (8), and its “reasonable time” limitations. We
conclude, however, that this is not the fundamental reason behind Wagner’s failure to answer
Rugged’s complaint in a timely fashion or oppose its motion for default judgment.
As stated in his T.R. 60(B) motion, Wagner was aware of, but did not respond to,
Rugged’s lawsuit because he thought its claim against him and Wagner Trucking, like all
other claims of Wagner Trucking’s creditors, “would be handled during the bankruptcy
proceeding.” Id. It turned out that this belief was mistaken. This is a classic allegation for
relief under T.R. 60(B)(1) for “mistake, surprise or excusable neglect”, notwithstanding that
Wagner sought to invoke T.R. 60(B)(8) and its more generous limitations. Relief from
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judgment is not available under the catch-all provision of T.R. 60(B) if the grounds for relief
properly belong in another of the rule’s enumerated provisions. Weppler v. Stansbury, 694
N.E.2d 1173 (Ind. Ct. App. 1998).
Because it falls under subsection (1), Wagner’s motion is governed by a one-year
limitation. Wagner’s motion to set aside was filed more than thirty-three months after the
default judgment was entered, well outside that timeframe. Moreover, because the grounds
for ruling upon the motion were apparent on the record before it, including the Chronological
Case Summary and the face of the T.R. 60(B) motion, the “pertinent evidence” needed no
further development, see T.R. 60(D), and the trial court did not err in ruling upon Wagner’s
motion without conducting a hearing pursuant to T.R. 60(D).
Judgment affirmed.
NAJAM, J., and BRADFORD, J., concur.
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