April 25, 2017

Failing To Follow Proper Rule 60(B) Procedure Results In Dismissal Of Motion

Category: Civil Procedure, Indianapolis Law Club | Author: | Share:

When an appeal has been filed, Indiana’s appellate courts have defined the procedure a party must file if they wish to file a Rule 60(B) motion. As the appellant in this case learned, if you don’t follow this procedure, then your 60(B) motion will be denied.

In Falatovics v. Falatovics, husband and Wife were divorced in December 2013, and Wife appealed that judgment. While the appeal was pending, Husband filed a Rule 60(B) motion, seeking to set aside the decree. Wife asked to have the matter stayed, pending the appeal, as the trial court did not have jurisdiction. The trial court granted her motion.

The Court of Appeals issued its opinion in August 2014, reversed the trial court’s decision, and remanded for further proceedings. On remand, the parties addressed the issues raised by the appellate opinion, but did not address Husband’s motion. The trial court issued an amended dissolution decree in November 25, 2014, and set a hearing on all remaining issues to take place in March 2015. Husband appealed.

In February 2015, Wife asked for the hearing on Husband’s Rule 60(B) motion to be continued, as the second appeal prevented the trial court from exercising jurisdiction. Husband argued that the appellate briefing had been stayed, so his motion should be heard before the appellate issues were briefed. Wife pointed out that the CCS did not show that the appellate briefing schedule had been stayed, and the trial court granted Wife’s motion on February 23, 2015.

On March 12, 2015, Husband moved for a stay of the appeal and a remand for the trial court to consider the Rule 60(B) motion. The Court of Appeals denied Husband’s motion, and affirmed the amended dissolution decree.

The matter was certified back to the trial court in February 2016, and Wife moved to dismiss Husband’s 60(B) motion a month later. The trial court granted Wife’s motion, and Husband appealed again.

On appeal, the first issue the Court addressed was the standard of review. Wife argued that the Court should review for an abuse of discretion, as the trial court’s decision was effectively a denial of a 60(B) motion. Husband argued that the issue should be reviewed under a de novo standard, as if it were a Rule 12(B) dismissal. The Court held that the dismissal “is effectively a denial,” and applied an abuse of discretion standard.

The meat of the appeal dealt with whether Husband had followed proper procedures when filing his Rule 60(B) motion. And the Court found that Husband did not follow the procedure set forth in Logal v. Cruse, 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied (1978).

Our supreme court consolidated Logal’s appeals and adopted the following procedure for bringing a motion to set aside while a judgment is on appeal (“the Logal Procedure”):

(1) The moving party files with the appellate court an application for leave to file his 60(B) motion. This application should be verified and should set forth the grounds relied upon in a specific and nonconclusory manner.

(2) The appellate court will make a preliminary determination of the merits of the movant’s 60(B) grounds. In so doing the appellate court will determine whether, accepting appellant’s specific, non-conclusory factual allegations as true there is a substantial likelihood that the trial court would grant the relief sought. Inasmuch as an appellate court is not an appropriate tribunal for the resolution of factual issues, the opposing party will not be allowed to dispute the movant’s factual allegations in the appellate court.

(3) If the appellate court determines that the motion has sufficient merit, as described in the preceding paragraph, it will remand the entire case to the trial court for plenary consideration of the 60(B) grounds. Such remand order will terminate the appeal and the costs in the appellate court will be ordered taxed against the party procuring the remand. The decision to remand does not require the trial court to grant the motion. If the trial court denies the motion, the movant should file a motion to correct errors addressed to this denial, and appeal the denial. In this new appeal any of the issues raised in the original appeal may be incorporated, without being included in the second motion to correct errors.

(4) If the trial court grants the motion, the opposing party may appeal that ruling under the same terms as described in paragraph (3). The original appeal shall be deemed moot.

Subsequently, the Court of Appeals had held that the failure to follow this procedure deprived the trial court of jurisdiction to rule on a Rule 60(B) motion filed while an appeal was pending.

Husband tried arguing that the Logal Procedure did not apply to him, but the Court disagreed. It held that it did not matter whether the appellant or appellee filed the Rule 60(B) motion—the Logal Procedure should be followed regardless. It also held that it did not matter whether the issues in the motions were the same as those on appeal— the Logal Procedure should be followed regardless. And it held requiring litigants to follow the Logal Procedure did not violate due process, because “parties are not entitled to evidentiary hearings when procedural requirements have not been satisfied.” The trial court’s decision was affirmed.

Lessons:

  1. A dismissal of a Rule 60(B) motion is effectively a denial of that motion and should be reviewed for abuse of discretion.
  2. All litigants must follow the Logal Procedure for filing a Rule 60(B) motion while an appeal is pending, and failure to do so will result in a dismissal of the motion.

Read the full March 2017 Law Club Handout or listen to the recording here.