Indiana Law Review Trial Rules 59 and 60(B)—Clearing the Murky Waters of Postjudgment Relief? In a recent opinion, Siebert Oxidermo, Inc. v. Shields, 1 the Indiana Supreme Court resolved a conflict among the various districts of the Indiana Court of Appeals. Previously, litigants seeking to set aside a default judgment or an involuntary dismissal with prejudice had been victims of the courts of appeals' collective uncertainty concern- ing the proper procedure for obtaining this type of postjudgment relief under the Indiana Rules of Trial Procedure (Trial Rules).2 The appellate courts disagreed as to whether a Trial Rule 59 motion to correct errors or a Trial Rule 60(B) motion for relief from judgment was initially required when this relief was sought within sixty days of judgment. The source of the uncertainty was the confusing time overlap for fil- ing motions under Trial Rules 59 and 60(B): both motions are available within sixty days of judgment.3 Trial Rule 59, which requires a motion to correct errors as a prerequisite to appeal in Indiana, was a major cause of the problem. I. Oxidermo— Resolution of the Conflict In Siebert Oxidermo, Inc. v. Shields,4 Shields sued Oxidermo, and a default judgment was entered on May 24, 1979, after Oxidermo failed to answer Shields' complaint. Oxidermo filed a motion to set aside the default judgment in accordance with Trial Rules 55(C) and 60(B) on June 28, 1979, claiming its failure to appear was caused by excus- able neglect. A hearing was held on Oxidermo's motion on September 6, 1979. The motion to set aside the default judgment was denied by the trial court on October 9, 1979, and the findings of fact and the conclusions of law were entered. Subsequently, Oxidermo filed a con- fusing series of postjudgment motions: two more motions to set aside the default judgment as well as three Trial Rule 59 motions to cor- rect errors. A praecipe for the record was filed in the trial court on February 21, 1980. The trial court denied all six of Oxidermo's post- 'No. 1282 S 471, slip op. (Ind. 1983). 2 See, e.g., Houston v. Wireman, 439 N.E.2d 732 (Ind. Ct. App. 1982); Mathis v. Morehouse, 433 N.E.2d 814 (Ind. Ct. App. 1982); Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981). See infra notes 13-76 and ac- companying text. 3 Trial Rule 59 requires that a motion to correct errors be made within sixty days of judgment. A Trial Rule 60(B) motion must be made within a reasonable time, not to exceed one year. Thus, during the sixty days immediately following the judg- ment both motions are available. 4No. 1282 S 471, slip op. (Ind. 1983). 539 540 INDIANA LAW REVIEW [Vol. 16:539 judgment motions. Finally, on May 14, 1980, the trial record was filed with the court of appeals to initiate Oxidermo's appeal.5 The Indiana Court of Appeals initially issued a memorandum deci- sion affirming the actions of the trial court. However, a subsequent decision on rehearing remanded the case for a retrial solely on the issue of damages. Both parties then petitioned the Indiana Supreme Court for transfer. Shields' petition, which alleged, inter alia, jurisdic- tional problems resulting from the postjudgment relief procedures, was granted by the supreme court. In its initial decision of Oxidermo, the supreme court held that Oxidermo had forfeited its right to appeal because Oxidermo had failed to file a praecipe within thirty days of the denial of the first Trial Rule 59 motion to correct errors.6 That decision was withdrawn after Oxidermo pointed out in a petition for rehearing that a praecipe was filed on February 21, 1980, within thirty days of the denial of the first Trial Rule 59 motion to correct errors. In the supreme court's subsequent decision, the court determined that it did have appellate jurisdiction over the case, but that the issue of excessive damages was not appealable by Oxidermo because it had failed to raise the issue in its first motion to set aside the default judgment.7 As a result the Indiana Supreme Court, adopting the original decision of the court of appeals, affirmed the trial court's deci- sion and award of damages.8 5Oxidermo's motions following denial of the first Trial Rule 60(B) motion were as follows: November 15, 1979 — Second "Motion to Set Aside Default and Default Judg- ment," filed by Oxidermo. December 4, 1979 — First "Motion to Correct Errors," responding to denial of first motion to set aside, filed by Oxidermo. January 23, 1980 —Second motion to set aside (filed November 15, 1979) denied. February 1, 1980 —Second "Motion to Correct Errors," responding to denial of second motion to set aside, filed by Oxidermo. February 13, 1980 - Third "Motion to Set Aside Default and Default Judg- ment," filed by Oxidermo. February 14, 1980 —First and second motions to correct error (filed December 4, 1979, and February 1, 1979) denied. February 21, 1980 —Praecipe for record filed in trial court by Oxidermo. March 28, 1980 -Third motion to set aside (filed February 13, 1980) denied. May 13, 1980 — Third "Motion to Correct Errors," responding to denial of third motion to set aside, filed by Oxidermo. Denied this date. May 14, 1980 —Record filed with Clerk of Supreme Court and Court of Appeals. Id. at 3-4. 6 Id. at 2. The initial decision was issued on December 7, 1982. 7No. 1282 S 471, slip op. (Ind. 1983). The subsequent decision was issued on March 16, 1983. 8 Id. at 19. 1983] POSTJUDGMENT RELIEF 541 The supreme court's ultimate decision in Oxidermo was not as significant as the court's resolution of the confusion surrounding the proper procedure for setting aside default judgments and involuntary dismissals. The source of this confusion, the overlap of Trial Rules 59 and 60(B), was illustrated by one of Shields' jurisdictional arguments. Relying upon a third district court of appeals decision, Shields argued that Oxidermo's first Trial Rule 60(B) motion to set aside the default judgment should have been treated as a Trial Rule 59 motion to correct errors, because it was filed within sixty days of the default judgment.9 If a Trial Rule 60(B) motion is treated as a Trial Rule 59 motion, then denial of that Trial Rule 60(B) motion would trigger the thirty day filing requirement for a praecipe. Thus, according to Shields' argument, the praecipe would need to be filed within thirty days of the denial of that motion, making Oxidermo's praecipe untimely. The supreme court rejected Shields' argument and, specifically overruling five appellate court cases, 10 resolved the dispute regarding the use of Trial Rules 59 and 60(B) in obtaining postjudgment relief from default judgments and involuntary dismissals. The supreme court determined that under no circumstances should a Trial Rule 60(B) motion be treated as a Trial Rule 59 motion to correct errors. 11 The court stated that the proper procedure for setting aside a default judg- ment is to first file a Rule 60(B) motion to have the default or default judgment set aside. Upon ruling on that motion by the trial court the aggrieved party may then file a Rule 59 Motion to Correct Error alleging error in the trial court's ruling on the previously filed Rule 60(B) motion. Appeal may then be taken from the court's ruling on the Motion to Correct Error. 12 Oxidermo set forth the procedure that must be followed to gain postjudgment relief from a default judgment or involuntary dismissal. 9No. 1282 S 471, slip op. at 5 (citing In re Marriage of Robbins, 171 Ind. App. 509, 358 N.E.2d 153 (1976)). 10No 1282 S 471, slip op. at 9 (overruling Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., 438 N.E.2d 16 (Ind. Ct. App. 1982); Mathis v. Morehouse, 433 N.E.2d 814 (Ind. Ct. App. 1982); Sowers v. Sowers, 428 N.E.2d 245 (Ind. Ct. App. 1981); Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981); In re Marriage of Robbins, 171 Ind. App. 509, 358 N.E.2d 153 (1976)). Although not specifically overruled by the supreme court, other cases which are im- pliedly overruled by the supreme court's statement in Oxidermo that "[a]ny other cases following the overruled cases cited above are also hereby overruled," No. 1282 S 471, slip op. at 9, include Houston v. Wireman, 439 N.E.2d 732 (Ind. Ct. App. 1982); Protec- tive Ins. Co. v. Steuber, 175 Ind. App. 139, 370 N.E.2d 406 (1977); Kelly v. Bank of Reynolds, 171 Ind. App. 515, 358 N.E.2d 146 (1976). uNo. 1282 S 471, slip op. at 9. 12 Id. at 9-10. 542 INDIANA LAW REVIEW [Vol. 16:539 The significance of this can be more readily understood through a discussion of the Indiana Trial Rules governing procedures for ob- taining postjudgment relief and a discussion of the interpretations given these rules by the various districts of the court of appeals. An understanding of the overlap conflict and the role played therein by Trial Rule 59 highlights the inherent problems caused by requiring a Trial Rule 59 motion to be filed in all cases to establish appellate jurisdiction in Indiana. II. The Overlap Conflict in the Court of Appeals Generally, postjudgment relief is sought in the trial court via a motion to correct errors under Trial Rule 59. Only after this motion has been made and ruled upon may an aggrieved litigant seek relief in the appellate courts. 13 However, the Indiana Trial Rules indicate two exceptions to this general practice, which were the center of the controversy resolved in Oxidermo. Indiana Trial Rules 55(C) and 41(F), respectively, provide that default judgments and involuntary dismissals with prejudice may be set aside "for the grounds and in accordance with the provisions of Rule 60(B)."14 Thus, these two rules indicate that postjudgment relief following a default judgment or an involuntary dismissal with prej- udice should be sought initially by means of a Trial Rule 60(B) motion. When a Trial Rule 60(B) motion is denied, the party must file a Trial Rule 59 motion to correct errors in the trial court to establish ap- pellate court jurisdiction over his appeal. 15 A Trial Rule 60(B) motion for relief from judgment must be made within a reasonable time, not exceeding one year after the judgment is entered. 16 A Trial Rule 59 motion to correct errors, which is a pre- requisite to an appeal in Indiana, must be made no later than sixty days after judgment.17 Thus, during the sixty days after a default judg- ment or an involuntary dismissal with prejudice, Trial Rules 59 and 60(B) overlap, and litigants must decide which motion to make, a Trial 13 Ind. R. Tr. P. 59. See infra note 84 and accompanying text. 14 Ind. R. Tr. P. 55(C), 41(F). . . 15 See Ind. R. Tr. P. 60(C). See also Ind. R. App. P. 2(A), 4(A), 7.2(A). 16 Ind. R. Tr. P. 60(B) provides in part: "The motion shall be filed within a reasonable time. . . and not more than one year after the judgment, order or pro- ceeding was entered or taken . . . ." 17 Ind. R. Tr. P. 59(C) provides: (C) Time for filing: Service on judge. A motion to correct error shall be filed not later than sixty [60] days after the entry of a final judgment or an appealable final order. A copy of the motion to correct error shall be served, when filed, upon the judge before whom the case is pending pur- suant to Trial Rule 5. 1983] POSTJUDGMENT RELIEF 543 Rule 59 motion to correct errors or a Trial Rule 60(B) motion for relief from judgment. Although Trial Rules 55(C) and 41(F) indicate that a default judg- ment or involuntary dismissal should be set aside u in accordance with the provisions of Trial Rule 60(B)," 18 some courts allowed or required a Trial Rule 59 motion to correct errors to be used initially to set aside the default judgment or involuntary dismissal with prejudice in certain situations. 19 Because Trial Rule 59(A)(9) permits a motion to correct errors "[f]or any reason allowed by these rules, statute or other law," 20 these courts determined that a Trial Rule 59 motion could be made based upon the same grounds for relief proscribed in Trial Rule 60(B), because Trial Rule 60(B) is part of "these rules." Thus, these courts determined that a party could make a Trial Rule 59 motion to correct errors that was u in accordance with the provisions of Rule 60(B)." 21 However, because the various districts of the court of appeals did not agree whether a Trial Rule 59 motion to correct errors could be used in these situations, and because those courts which did allow its use did not agree as to when it was proper, many appellants who relied on the decision of one district of the court of appeals were denied an appeal by a contradictory opinion rendered by another district.22 The various districts of the Indiana Court of Appeals generally took four different approaches in determining the proper roles of Trial Rules 59 and 60(B) following a default judgment or an involuntary dismissal with prejudice. One approach taken by the courts was based on a strict interpretation of Trial Rules 55(C) and 41(F). 23 This view 18 Ind. R. Tr. P. 41(F), 55(C). 19 See, e.g., Houston v. Wireman, 439 N.E.2d 732 (Ind. Ct. App. 1982); Mathis v. Morehouse, 433 N.E.2d 814 (Ind. Ct. App. 1982); Sowers v. Sowers, 428 N.E.2d 245 (Ind. Ct. App. 1981); Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981); In re Marriage of Robbins, 171 Ind. App. 509, 358 N.E.2d 153 (1976). 20 Ind. R. Tr. P. 59(A)(9). 21 Ind. R. Tr. P. 41(F), 55(C). For a list of recent cases adopting this interpreta- tion see supra note 19. 22 See, e.g., Houston v. Wireman, 439 N.E.2d 732 (Ind. Ct. App. 1982); Mathis v. Morehouse, 433 N.E.2d 814 (Ind. Ct. App. 1982); Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981). In his dissent to one such ruling, Houston v. Wireman, Judge Sullivan stated: [T]he permutations possible from the application or misapplication of Trial Rules 59 and 60 are virtually endless. It is another instance of the trap baited for the conscientious and careful practitioner who is not sufficently clairvoyant to anticipate which particular appellate inconsistency will attach to his par- ticular assertion of error. 439 N.E.2d at 734 (Sullivan, J., dissenting). 23 See Yerkes v. Washington Mfg. Co., 163 Ind. App. 692, 326 N.E.2d 629 (1975); Hooker v. Terre Haute Gas Corp., 162 Ind. App. 43, 317 N.E.2d 878 (1974); Northside 544 INDIANA LAW REVIEW [Vol. 16:539 did not recognize the overlap of Trial Rules 59 and 60(B); it required that relief initially be sought by means of a Trial Rule 60(B) motion. If the Trial Rule 60(B) motion was denied, then an aggrieved party seeking an appeal had to file a Trial Rule 59 motion to correct errors directed to the denial. This approach was adopted by the first district in both Hooker v. Terre Haute Gas Corp. 2* and Yerkes v. Washington Manufacturing Co.,25 which were decisions giving the first interpreta- tions of the rules following their adoption. The second district adopted a "relief-sought" approach in Kelly v. Bank of Reynolds , 26 a 1976 case. The Kelly court explained that in most instances defaulted parties are seeking equitable relief from the trial court, because the party failed in some way to appear or to plead and now wants to offer facts that encourage the court to excuse that failure. 27 Kelly, however, was alleging an error of law, rather than the usual equitable reasons for relief from a default judgment.28 Because this default was based on an error of law rather than a plea in equity, the Kelly court held that "when a judgment (default or other- wise) has been entered against a party, and that party alleges that an error of law forms a basis of that judgment, the allegations may be presented via a T.R. 59 motion to correct errors."29 In a 1981 case, Dawson v. St. Vincent Hospital & Health Care Center,30 the fourth district also adopted the relief-sought approach. In Protective Insurance Co. v. Steuber 31 a 1977 case, the first district modified its earlier opinion in Yerkes that relief from a default judgment could be sought only in accordance with the provisions of Trial Rule 60(B). The court determined that an exception to its rule in Yerkes should be allowed when a Trial Rule 59 motion to correct errors, directed to errors of law in the trial court, is filed within sixty days of judgment.32 Thus, the first district, in effect, adopted the relief- sought standard first used in Kelly.33 The third district adopted a "timing" approach in In re Marriage of Robbins, 34 a 1976 case handed down the same day as Kelly. The Cab Co. v. Penman, 156 Ind. App. 577, 197 N.E.2d 838 (1973). See also Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., 438 N.E.2d 16, 21 (Ind. Ct. App. 1982) (Staton, J., concurring). 24162 Ind. App. 43, 317 N.E.2d 878 (1974). 25 163 Ind. App. 692, 326 N.E.2d 629 (1975). 26171 Ind. App. 515, 358 N.E.2d 146 (1976). 21 Id. at 519, 358 N.E.2d at 149. 28 Id. at 521, 358 N.E.2d at 150. 2 *Id. at 522, 358 N.E.2d at 150. 30426 N.E.2d 1328 (Ind. Ct. App. 1981). 31175 Ind. App. 139, 370 N.E.2d 406 (1977). 32 Id. at 143, 370 N.E.2d at 408-09. 33 See supra notes 26-29 and accompanying text. 34 171 Ind. App. 509, 358 N.E.2d 153 (1976). The Indiana Courts of Appeals, 1983] POSTJUDGMENT RELIEF 545 court stated that "one of the common, overlapping purposes [of Trial Rules 59 and 60(B)] is to call errors, either in equity or in law, to the attention of the trial court to avoid an injustice." 35 The only dif- ference the court suggested between the use of the two rules was the timing of the two motions.36 Thus, the Robbins court held that a Trial Rule 59 motion could be used to seek relief from judgment within sixty days thereof.37 Additionally, any motion that was based on grounds included in Trial Rule 60(B) that was made within sixty days of judgment would be treated as a Trial Rule 59 motion with no further motion to correct errors required prior to appeal.38 Of course, the court in Robbins also stated that due to the sixty-day time limit for filing motions to correct errors, any Trial Rule 60(B) motion filed later than sixty days after judgment must be treated as a Trial Rule 60(B) motion and could be appealed only by filing a subsequent motion to correct errors.39 In 1981, only one month after Dawson v. St Vincent Hospital & Health Care Center™ was handed down by the fourth district, the third district again followed the timing approach of Robbins in Sowers v. Sowers. 41 The court in Sowers treated a Trial Rule 60(B) motion as a Trial Rule 59 motion to correct errors because it was filed within sixty days of judgment. As a result, the party was able to appeal without filing an additional motion to correct errors.42 throughout this conflict, and the Indiana Supreme Court, in Oxidermo, cited Robbins as an appeal from a default judgment. In Robbins, however, Judge Staton specifically stated: Although Edley Robbins refers to the judgment rendered in this action as a default judgment, it is not a default judgment. An answer was filed by Edley Robbins to his wife's petition for dissolution of their marriage. Both Edley Robbins and his wife had notice of the trial date for a trial on the merits. When a trial court proceeds to hear a divorce action on the merits even though one of the parties is absent, the resulting judgment is on the merits. The judgment is not a default judgment. Indiana Rules of Procedure, Trial Rule 55(B) would not be applicable. Aetna Securities Company v. Sickels (1949), 120 Ind. App. 300, 88 N.E.2d 789. 171 Ind. App. at 510, n.l, 358 N.E.2d at 154 n.l. Because Robbins was based on a judg- ment on the merits and was not an appeal from a default judgment, the appellate court was correct in allowing the appellant to seek relief by means of a Trial Rule 59 motion to correct errors. It appears that the court in Robbins allowed use of a Trial Rule 59 motion to allege Trial Rule 60 grounds for relief merely to avoid the requirement, at that time, of multiple motions to correct errors. See supra notes 101-08 and accompanying text. 35171 Ind. App. at 512, 358 N.E.2d at 155 (emphasis added). 36 Id. at 513, 358 N.E.2d at 155. 37 Id. 38 Id. 39 Id. at 513, 358 N.E.2d at 156. 40 426 N.E.2d 1328 (Ind. Ct. App. 1981). 41428 N.E.2d 245 (Ind. Ct. App. 1981). i2 Id. at 247. 546 INDIANA LAW REVIEW [Vol. 16:539 In Mathis v. Morehouse,43 decided in 1982, the second district fol- lowed and extended the timing test of Robbins, while specifically disap- proving Dawson's relief-sought test.44 The appellant in Mathis had made a Trial Rule 60(B) motion for relief from judgment. Upon its denial, the appellant made a Trial Rule 59 motion to correct errors that was also denied. Mathis then filed a praecipe within the required thirty days. 45 This was the proper procedure under the strict intrepretation of the rules applied in the early cases. 46 It was also correct procedure under the relief-sought test of Kelly and Dawson because the appellant was seeking equitable relief and not correction of a legal error.47 The Mathis court, however, held that Mathis had not properly preserved any errors for appeal.48 The court ruled that any attack on a default judgment made within sixty days of that judgment shall be made by means of a Trial Rule 59 motion to correct errors.49 The court treated Mathis' Trial Rule 60(B) motion as a Trial Rule 59 motion to correct errors because it was filed within sixty days of judgment. This inter- pretation resulted in the appellant's praecipe not being timely filed and the subsequent dismissal of his appeal.50 It is interesting to note that although the courts in Kelly and Rob- bins rejected the strict ruling of Yerkes in order to allow appeals to be heard on the merits, in Dawson and Mathis, the courts' extensions of the rulings in Kelly and Robbins operated to deny the appeals. Compromise was attempted, later in 1982, in Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp.,51 when the third district took a "liberal" approach to the problem. The court reviewed Trial Rules 41(F), 55(C), 59, and 60(B) and the long line of cases construing these rules. 52 Two of the most recent cases, Dawson53 and Mathis,54 were compared. The court explained that it could not agree with Dawson's relief-sought approach. It did not believe that a motion to correct errors was necessary following a Trial Rule 60(B) motion to alert the trial court or the appellate court to the errors to be raised 43433 N.E.2d 814 (Ind. Ct. App. 1982). "Id. at 816. i5 Id. at 815. i6 See supra notes 23-25 and accompanying text. "See supra notes 26-30 and accompanying text. 48433 N.E.2d at 815. i9 Id. at 815-16. ™Id. Indiana Appellate Rule 2(A) requires that the praecipe be filed within thirty days of the trial court's ruling on the motion to correct errors. 51438 N.E.2d 16 (Ind. Ct. App. 1982). 52 Id. ^Id. at 18 (citing Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981)). M438 N.E.2d at 18 (citing Mathis v. Morehouse, 433 N.E.2d 814 (Ind. Ct. App. 1982) (Sullivan, J., dissenting)). 1983] POSTJUDGMENT RELIEF 547 on appeal.55 Because denial of a Trial Rule 60(B) motion is generally reviewed only for abuse of discretion, this court determined that a motion to correct errors following a Trial Rule 60(B) motion did little to aid the reviewing court.56 The Pre-finished Moulding court indicated that the Mathis timing approach of allowing only a Trial Rule 59 motion to correct errors within sixty days of judgment would be preferable because it would be quick and inexpensive.57 However, the court in Pre-finished Moulding expressed a strong belief that interests of justice and fair play required that both the Dawson and Mathis procedures be allowed "until such time as our Supreme Court establishes by rule or deci- sion that no motion to correct errors will be permitted to be addressed to the ruling on a TR 60 motion."58 This court refused to deny appellate review to a litigant who was forced to choose among three different judicial views of the postjudgment procedure. Instead, the court decid- ed to take a more liberal approach and allow the use of either a Trial Rule 59 or 60(B) motion initially, until the Indiana Supreme Court determined what was proper.59 Judge Staton concurred in the result but disagreed with the major- ity's reasoning, stating that "the majority's reasoning needlessly com- plicates the procedural law when the wording of the Trial Rules is unmistakably clear."60 He would have followed the strict interpreta- tion of the early cases that required an initial Trial Rule 60(B) motion following a default judgment or involuntary dismissal.61 The majority in the second district, in September of 1982, refused to adopt this liberal compromise approach. In Houston v. Wireman,62 the second district reaffirmed its ruling in Mathis; it held that within sixty days of judgment only a Trial Rule 59 motion to correct errors could be used to set aside a default judgment.63 In a lengthy footnote, the majority discussed Pre-finished Moulding's liberal view allowing the use of a Trial Rule 59 motion, or a Trial Rule 60(B) motion followed by a Trial Rule 59 motion, until the supreme court specifies which is correct. 64 The second district responded that "[t]here is arguable merit to [the third district's] position. However, contrary to the major- "438 N.E.2d at 19. *Id. m Id. at 20. m Id. 59 Id. *°Id. at 21 (Staton, J., concurring). 61 Id. 62439 N.E.2d 732 (Ind. Ct. App. 1982). 63 Id. at 734. See supra notes 43-50 and accompanying text. M439 N.E.2d at 733 n.2 (citing Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., 438 N.E.2d 16 (Ind. Ct. App. 1982)). 548 INDIANA LAW REVIEW [Vol. 16:539 ity's conclusion, the Supreme Court has spoken."65 The majority then explained that to the extent T.R. 60(B) provides grounds for relief not ex- plicitly 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) . . . 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 . . . discover- able with due diligence within the limitations for a timely T.R. 59 motion.66 As in Mathis, Judge Sullivan again dissented from the majority opinion. 67 He stated that the "[a]ppellee properly preserved and presented the error by resort to Trial Rule 60,"68 and suggested that the majority's opinion "indicates that the permutations possible from the application or misapplication of Trial Rules 59 and 60 are virtually endless." 69 Judge Sullivan also lamented that in recent years the courts had rendered many decisions concerning the interrelationship of Trial Rules 59 and 60(B), "few of which may be harmonized or reconciled; neither have the individual judges and justices been consistent or in agreement."70 Presenting a long list of citations to cases involving Trial Rules 59 and 60, the Judge stated that "[i]f all the words writ- ten by our appellate courts concerning Trial Rule 59 vis a vis Trial Rule 60 were placed end to end, they would stretch to nowhere."71 After this review of the conflicting cases and views of the various districts and judges, it becomes apparent that the purposes for Trial Rules 59 and 60(B) in this area of postjudgment relief were not clear when Oxidermo arrived before the Indiana Supreme Court. The majority in the second district had stated that the rules were clear in requiring the use of a Trial Rule 59 motion, rather than a Trial Rule 60(B) motion, when a party seeks to set aside a default judg- ment or an involuntary dismissal within sixty days of judgment.72 65439 N.E.2d at 733 n.2 (citing Logal v. Cruse, 267 Ind. 83, 86, 368 N.E.2d 235, 237 (1977)). 66 Id. 61 Id. at 734 (Sullivan, J., dissenting). 68 Id. "Id. 70 Id. n Id. 12 E.g., Houston v. Wireman, 439 N.E.2d 732, 733 n.2 (Ind. Ct. App. 1982). 1983] POSTJUDGMENT RELIEF 549 Judge Staton, of the third district, believed that the rules clearly re- quired that a default judgment or an involuntary dismissal be set aside only by means of a Trial Rule 60(B) motion.73 The fourth district be- lieved that a Trial Rule 60(B) motion should be used, but the court would allow the use of a Trial Rule 59 motion when the motion was based on a legal error. 74 The majority in the third district believed that the timing approach taken by the second district was preferable, but due to the diversity of opinion among the judges on the courts of appeals and the resulting unfairness to litigants, the court awaited direction from the Indiana Supreme Court.75 Judge Sullivan, of the second district, was also dismayed by this confusing line of cases that "stretch to nowhere."76 Thus, as this brief overview clearly indicates, if the rules were clear there would not have been all these different interpretations. In Siebert Oxidermo, Inc. v. Shields,17 the supreme court agreed with the original strict interpretation established by the first district in Yerkes v. Washington Manufacturing Co. 78 The supreme court stated that the rule in Yerkes required the initial filing of a Trial Rule 60(B) motion to set aside the default judgment. Upon its denial, a Trial Rule 59 motion to correct errors may be made within sixty days of the court's ruling on the Trial Rule 60(B) motion, and an appeal could be taken from the court's denial of the motion to correct errors.79 The supreme court also stated that under no circumstances should a Trial Rule 60(B) motion be treated as a Trial Rule 59 motion to correct errors. 80 The Oxidermo court accused the Robbins court and others that diverged from the holding in Yerkes of having " 'hopelessly obscured the already murky requirements for post judgment relief "81 The procedure chosen by the Indiana Supreme Court is most in accord with the wording of Trial Rules 55(C) and 41(F), which allow default judgments and involuntary dismissals to be set aside "for the grounds and in accordance with the provisions of Rule 60(B)."82 The 73 Pre-finished Moulding & Door, Inc. v. Insurance Guidance Corp., 438 N.E.2d at 21 (Staton, JM dissenting). u E.g. t Dawson v. St. Vincent Hosp. & Health Care Center, Inc., 426 N.E.2d 1328 (Ind. Ct. App. 1981). 75Pre-finished Moulding & Door, Inc., 438 N.E.2d at 20. 76Houston v. Wireman, 439 N.E.2d at 734 (Sullivan, J., dissenting). 77No. 1282 S 471, slip op. (Ind. 1983). 78 163 Ind. App. 692, 326 N.E.2d 629 (1975). 79No. 1282 S 471, slip op. at 8 (Ind. 1983). "Id. at 9 "Id. (citing 4 W. Harvey & R. Townsend, Indiana Practice 76 (Supp. 1982)) (quoting Harvey, Civil Procedure and Jurisdiction, 1976 Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 51, 71 (1977)). 82 Ind. R. Tr. P. 55(C), 41(F). 550 INDIANA LAW REVIEW [Vol. 16:539 required filing of a Trial Rule 59 motion to correct errors following a denial of the Trial Rule 60(B) motion is also in accordance with Trial Rule 60(C), which states that u [a] ruling or order of the court denying or granting relief, in whole or in part, by motion under subdivision (B) of this rule shall be deemed a final judgment, and an appeal may be taken therefrom as in the case of a judgment." 83 Furthermore, all other judgments may be appealed only after the requisite filing of a Trial Rule 59 motion to correct errors in the trial court. 84 Therefore, the court's ruling appears to be a logical interpretation of the Trial Rules governing default judgments and involuntary dismissals. III. Prerequisite to Appeal— Inherent Problem of Trial Rule 59 Although the supreme court's ruling in Oxidermo on the overlap conflict certainly clarified the procedures for setting aside a default judgment in a manner that is consistent with the Trial Rules, the decision does not solve certain inherent problems involved with seek- ing postjudgment relief in Indiana. Since its adoption, Trial Rule 59 has been a source of great confusion and controversy for litigants, especially those whose appeals have not been heard on the merits as a result of a failure to comply with the technical requirements of Trial Rule 59.85 Therefore, it is not surprising that Trial Rule 59 played a leading role in the recent dispute concerning the proper procedure for setting aside a default judgment or an involuntary dismissal with prejudice. The problems created by Trial Rule 59 are even less surprising in light of the development of the Indiana Trial Rules governing post- judgment relief and, specifically, Trial Rule 59. Prior to the adoption of the Indiana Rules of Trial Procedure in 1969, a "great need for compilation and centralization"86 of the statutory provisions for attack- 83 Ind. R. Tr. P. 60(C). 84An amendment to Trial Rule 59 subsequent to the supreme court decision in P-M Gas & Wash Co. v. Smith, 268 Ind. 297, 375 N.E.2d 592 (1978), eliminated language in the Trial Rule that specifically stated that a Trial Rule 59 motion to correct errors was a condition to appeal. For the text of Trial Rule 59(G) prior to the 1980 amendment, see infra note 104. However, Indiana Appellate Rules 2(A), 4(A), and 7.2(A) suggest that the motion to correct errors is still a prerequisite to appeal in Indiana. See also 4 W. Harvey & R. Townsend, Indiana Practice 14 (Supp. 1982) [hereinafter cited as Harvey]. S5 See, e.g., State v. Deprez, 260 Ind. 413, 296 N.E.2d 120 (1973); Snider v. Gaddis, 413 N.E.2d 322 (Ind. Ct. App. 1980); Ebersold v. Wise, 412 N.E.2d 802 (Ind. Ct. App. 1980); Diaz v. Duncan, 406 N.E.2d 991 (Ind. Ct. App. 1980); Davis v. McElhiney, 396 N.E.2d 140 (Ind. Ct. App. 1979); Stuteville v. Downing, 391 N.E.2d 629 (Ind. Ct. App. 1979); Trimble v. Trimble, 167 Ind. App. 600, 339 N.E.2d 614 (1976). 86 Note, Procedural Techniques for Belated Attacks on Judgments in Indiana, 32 Ind. L.J. 205, 237 (1957). 1983] POSTJUDGMENT RELIEF 551 ing judgments in Indiana existed. In 1957, one commentator complained that "present statutory remedies have sprung from different sources and have evolved independently; consequently, many areas overlap and others are not adequately provided for."87 In 1969, the statutes were compiled and centralized. The new Indiana Trial Rules incor- porated many of the Federal Rules of Civil Procedure, while main- taining some of the peculiarities of the old Indiana procedures.88 However, before the new Indiana Trial Rules even became effective on January 1, 1970,89 one scholar predicted that because the new Indiana Trial Rules contained "highly interrelated and overlapping pro- visions," they would "pose some challenging questions of construction and administration."90 As was predicted over a decade ago, the Indiana Trial Rules have posed many problems.91 In a recent opinion, Judge Sullivan commented that "our rules constitute in many respects a morass and a mixture of overlap, insufficiency, inconsistency and incomprehensibility."92 Judge Sullivan suggested that the root of the current problem was "the attempted adoption of many or most of the federal rules but thereafter engrafting onto those rules incompatible old Indiana procedures."93 Judge Sullivan's comment is particularly applicable to the rela- tionship between Trial Rule 60 and Trial Rule 59. The major provi- sions of Trial Rule 60 are nearly identical to Federal Rule 60; 94 Trial Rule 59, however, has little resemblance to Federal Rule 59. 95 Trial Rule 59 is actually a modification of the old Indiana motion for a new trial and was not designed to mesh with Trial Rule 60 which was modeled after Federal Rule 60. The failure of these two trial rules to complement each other in providing postjudgment relief has created troublesome overlaps and conflicts that result from trying to com- bine trial rules that come from different sources. As illustrated in the Oxidermo decision, the most recent example of this overlap con- 81 Id. 88Greenebaum, Post Trial Motions Under the New Indiana Rules, 45 Ind. L.J. 377, 377 (1970). 89Act of March 13, 1969, ch. 191, 1969 Ind. Acts 546-717 (codified at Ind. Code § 34-5-1-5 (1982)). 90Greenebaum, supra note 88, at 377. 91 See id. 92Mathis v. Morehouse, 433 N.E.2d 814, 817 (Ind. Ct. App. 1982) (Sullivan, J., dissenting). 93 Id. ^Compare Ind. R. Tr. P. 60 with Fed. R. Civ. P. 60. See also Greenebaum, supra note 88, at 384. ^Compare Ind. R. Tr. P. 59 (the Indiana rules require a Trial Rule 59 motion to correct errors as a prerequisite to appeal) with Fed. R. Civ. P. 59 (the Federal Rules contain no similar provision). 552 INDIANA LAW REVIEW [Vol. 16:539 flict was the confusion surrounding the use of Trial Rules 59 and 60(B) in seeking postjudgment relief from a default judgment or an involun- tary dismissal. 96 More serious than the problems that arise from the overlap of Trial Rules 59 and 60(B) are the problems created by making Trial Rule 59 a prerequisite for appeal. When the Indiana Trial Rules were adopted in 1969, the Indiana Supreme Court determined that the motion to correct errors should remain a condition to appeal, although the Civil Code Study Commission reported eleven reasons why it should not be a prerequisite.97 Requiring a party to file a Trial Rule 96Siebert Oxidermo, Inc. v. Shields, No. 1282 S 471, slip op. (Ind. 1983). See supra notes 13-84 and accompanying text. 97 Harvey, supra note 84, at 119-20 (1971) (quoting Civil Code Study Commission Comments). These reasons were: First: It will assure consideration of cases upon the merits, rather than solution on technical grounds which must be blamed only on the lawyer tak- ing the appeal or the very uncertainty of the technical law involved. Second: The motion to correct error seldom is effective below. It is com- mon knowledge that not more than 2% or 3% of all cases are reversed when the motion is made. It, therefore, wastes everybody's time. Third: The transcript of evidence seldom, if ever, is available to aid a party in determining whether or not prejudicial error was committed. Con- sequently, a lawyer cannot fairly present the issues for correction within the time provided, and out of caution he is forced to raise issues which may prove not to be reversible error. Fourth: The expenses of reproducing the motion for a new trial, rather than emphasizing the actual events in the record where error was commit- ted are costly, and time consuming. Fifth: Past experience has shown a tendency upon the part of courts on appeal to develop technical language for assigning error on appeal especially when such error must go through a series of restatements in motions, briefs and arguments. Sixth: In criminal cases, the technical limitation that all errors be raised within a relatively short period of time after the trial and before the transcript is prepared is almost unbelievable in this day when the rights of those ac- cused of crimes are so well recognized. Seventh: The real effect of requiring a motion for a new trial is to con- sume time and promote delay. The delay involved often is such that, if general- ly known, it would lead to more radical innovations. Compare, e.g., Indianapolis Life Ins. Co. v. Lundquist, 222 Ind. 359, 53 N.E.2d 338 (1944). Eighth: If the trial judge is permitted to serve as a court of appeal, his decision on questions of law raised by the motion to correct error is made without the benefit of briefs which represent the final step in the appeal process. Briefs cannot be artfully drawn without the transcript and the record which usually are not available in the time and place where the motion is made below. Ninth: Judges on appeal often admit that failure to raise error properly below is an effective means of allowing them to dispose of the cases. If the case is without merit, or if it is poorly presented, the proper remedy is by means of the court's power to deal with counsel, and in all cases with the merits. Tenth: In view of the over-all ineffectiveness of the motion to correct 1983] POSTJUDGMENT RELIEF 553 59 motion to correct errors prior to appeal has adversely affected thousands of appellants. Appellants are routinely denied a hearing on the merits of their appeal, because they failed to fully comply with the technical requirements of the motion to correct errors. This failure to comply may result from neglecting to include an alleged error in the motion to correct errors, 98 from filing the motion later than the prescribed sixty-day period after final judgment," or from merely fail- ing to use the technical language required by the appellate court.100 In addition to these general problems resulting from the prereq- uisite filing of a Trial Rule 59 motion, a major problem arose involv- ing the requirement of multiple motions to correct errors. This was finally resolved in 1980, when Trial Rule 59 was subjected to a major revision 101 that brought it in line with the Indiana Supreme Court deci- sion in P-M Gas & Wash Co. v. Smith. 102 In P-M Gas, the Indiana Supreme Court overruled a long line of cases 103 that had interpreted Trial Rule 59(G)104 as requiring a new motion to correct errors each error (formerly motion for a new trial), it presents, in final analysis, a technical obstacle in the way of consideration of a case upon its merits. Parties who feel that relief can be obtained below are free to seek it. As a mandatory rule it presents an unreasonable cost to the time of professors, students and lawyers in getting to the merits on an appeal. Eleventh: The old rule followed in Indiana has long since been rejected in the federal courts and other jurisdictions where effort has been made to eliminate delay and cost in judicial administration. 98 See, e.g., Cunningham v. Associates Capital Servs. Corp., 421 N.E.2d 681 (Ind. Ct. App. 1981); Means v. Indiana Fin. Corp., 416 N.E.2d 896 (Ind. Ct. App. 1981); Hieb v. Metropolitan Dev. Comm'n of Marion County, 412 N.E.2d 321 (Ind. Ct. App. 1980). "See, e.g., Kelsey v. Nagy, 410 N.E.2d 1333 (Ind. Ct. App. 1980); Kratkoczki v. Regan, 381 N.E.2d 1077 (Ind. Ct. App. 1978); Lines v. Browning, 156 Ind. App. 185, 295 N.E.2d 853 (1973). 100Harvey, supra note 84, at 119 (1971). 101 Ind. Code Ann., Ind. R. Tr. P. 59 Supreme Court Committee note (West 1981). See also Robertson, Revised Trial Rule 59 and P-M Gas, 13 Ind. L. Rev. 541 (1980). 102 268 Ind. 297, 375 N.E.2d 592 (1978) (holding that appellants need not file a motion to correct errors each time the judgment was altered prior to appeal). 103268 Ind. at 301, 375 N.E.2d at 594 (overruling State v. Deprez, 260 Ind. 413, 296 N.E.2d 120 (1973); Campbell v. Mattingly, 168 Ind. App. 651, 344 N.E.2d 858 (1976); Lake County Title Co. v. Root Enter., 167 Ind. App. 559, 339 N.E.2d 103 (1975); Min- nette v. Lloyd, 166 Ind. App. 1, 333 N.E.2d 791 (1975); Miller v. Mansfield, 164 Ind. App. 583, 330 N.E.2d 113 (1975); Hansbrough v. Indiana Revenue Bd., 164 Ind. App. 56, 326 N.E.2d 599 (1975); Weber v. Penn-Harris-Madison School Corp., 162 Ind. App. 28, 317 N.E.2d 811 (1974); Koziol v. Lake County Plan Comm'n, 161 Ind. App. 232, 315 N.E.2d 374 (1974); Easley v. Williams, 161 Ind. App. 24, 314 N.E.2d 105 (1974); State v. Kushner, 160 Ind. App. 464, 312 N.E.2d 523 (1974); Wyss v. Wyss, 160 Ind. App. 281, 311 N.E.2d 621 (1974); Davis v. Davis, 159 Ind. App. 290, 306 N.E.2d 377 (1974)). 104Indiana Trial Rule 59(G), before it was amended in 1980, provided: (G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. 554 INDIANA LAW REVIEW [Vol. 16:539 time the court changed its judgment in any manner.105 In those cases, many appellants were unable to obtain a decision on the merits because they had failed to make multiple motions to correct errors.106 The amended rule has been interpreted to require that at least one motion to correct errors be made in the trial court before an appeal can be taken, 107 and either party may appeal from the ruling on that initial motion to correct errors. 108 One result of the P-M Gas amendment to Trial Rule 59 is that some errors can now be raised on appeal although they were not in- cluded in a motion to correct errors. 109 If errors in this limited area may be raised in the appellate brief without previously being included in a motion to correct errors, it would seem plausible that all errors could be raised in this manner. The supreme court refused to make such a dramatic move, however, and in P-M Gas, the court emphasized three purposes it believed were served by the motion to correct errors: (1) to present to the trial court an opportunity to correct error which occurs prior to the filing of the motion; (2) to develop those points which will be raised on appeal by counsel; and (3) to inform the opposing party concerning the points which will be raised on appeal so as to provide that party an oppor- tunity to respond in the trial court and on appeal. 110 Upon careful examination, it appears that all three purposes for the prerequisite filing of a Trial Rule 59 motion could be accomplished by other means. The first purpose appears negligible considering, as the Civil Code Study Commission reported, "not more than 2% or Issues which could be raised upon a motion to correct errors may be con- sidered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution. 105268 Ind. at 302, 375 N.E.2d at 594. mSee supra note 103 and accompanying text. See also Grove, The Requirement of a Second Motion to Correct Errors as a Prerequisite to Appeal, 10 Ind. L. Rev. 462 (1977). 107Harvey, supra note 84, at 14 (Supp. 1982). W8 Id. See also Robertson, supra note 101. 109Robertson, supra note 101, at 561 n.125 (citing Ind. Code Ann., Ind. R. Tr. P. 59 Supreme Court Committee note (West 1981)). Judge Robertson noted that: This result will arise in situations where the appellant receives a judgment against the appellee at the trial court level and the appellee files a motion to correct errors. If the trial court grants the appellee's motion overturning the appellant's judgment, the appellant not only may challenge the unfavorable determination in favor of appellee's motion but also may raise errors that occurred during trial on brief without filing any motion to correct errors. Robertson, supra note 101, at 561 n.125. 110268 Ind. at 301, 375 N.E.2d at 594 (1978). 1983] POSTJUDGMENT RELIEF 555 3% of all cases are reversed when the motion is made."111 Even if trial courts currently make numerous corrections of error as a result of Trial Rule 59 motions, they would not necessarily be precluded from doing so merely because the litigant was not required to make the motion to correct errors as a condition to appeal. 112 As for the second and third purposes, the points to be raised on appeal can be more carefully and fully developed in the briefs of the parties than in a motion to correct errors that must usually be filed without the benefit of an opportunity to look over the transcript of the evidence.113 Because the trial record is not yet available, appellants are more likely to make broad allegations of error so that no error is missed and thereby waived.114 Yet Trial Rule 59 requires that "[e]ach claimed error shall be stated in specific rather than general terms, and shall be ac- companied by a statement of the facts and grounds upon which the errors are based." 115 These conflicting requirements force the appellant into a difficult position. He must be as general as possible to avoid waiving an error for appeal, without being so general that the court will not consider the motion due to a lack of specificity. It appears that the purposes to be accomplished by the motion to correct errors could be accomplished just as well without the pre- requisite filing of a motion to correct errors. As one commentator observed: Parties in federal court, where the motion to correct errors is unknown, seem to have no special difficulty in apprising trial courts of the existence of trial error, and there is no evidence that the federal appellate courts cannot do their jobs without having issues on appeal formulated in a motion to cor- rect errors. 116 Thus, the prerequisite motion to correct errors has caused routine problems with waiver of issues on appeal as well as major conflicts such as the pre-P-M Gas requirement of multiple motions and the more recent overlap conflict. All these problems have arisen because the 1uHarvey, supra note 84, at 119 (1971) (quoting Civil Code Study Commission Comments). 112Dean Grove suggested an optional motion to correct errors. Grove, supra note 106, at 477. 113Harvey, supra note 84, at 119 (1971). 114Because the Trial Rule 59 motion to correct error is a prerequisite to appeal, any alleged error that is not included in that motion is considered waived for pur- poses of appeal. See, e.g., Stanley v. Fisher, 417 N.E.2d 932 (Ind. Ct. App. 1981); Eber- sold v. Wise, 412 N.E.2d 802 (Ind. Ct. App. 1980); Hockelberg v. Farm Bureau Ins. Co., 407 N.E.2d 1160 (Ind. Ct. App. 1980); Ligon Specialized Hauler, Inc. v. Hott, 384 N.E.2d 1071 (Ind. Ct. App. 1979); Warren v. City of Indianapolis, 375 N.E.2d 1163 (Ind. Ct. App. 1978). 115 Ind. R. Tr. P. 59(D)(2). u6Grove, supra note 106, at 477-78. 556 INDIANA LAW REVIEW [Vol. 16:539 motion to correct errors is a condition to appeal in Indiana. Yet, it appears that the prerequisite motion to correct errors adds little to appellate procedure that could not be accomplished just as well by an appellate brief or an optional motion to correct error. Judge Robertson warned, however, that "the overtaxed inter- mediate appellate system" might not be able to handle the raising of errors by means of a brief rather than by means of a motion to correct errors. 117 Judge Robertson suggested that "the court may rely on other procedural devises to eliminate frivolous appeals that threaten to clog the [courts]." 118 Although the concern with frivolous appeals is understandable, the motion to correct errors should not be used by the appellate courts as a "technical obstacle in the way of consid- eration of a case upon its merits." 119 The Civil Code Study Commission suggested that "[i]f the case is without merit, or if it is poorly presented, the proper remedy is by means of the court's power to deal with counsel, and in all cases with the merits." 120 Additionally, elimination of the motion to correct errors as a con- dition to appeal is not likely to add greatly to the number of cases that are appealed because the cost of appealing a decision is tremen- dous even without the additional cost of a motion to correct errors. The more likely result of eliminating the prerequisite motion would be to require the appellate courts to consider more cases on the merits, rather than on the fulfillment of the technical requirements of Trial Rule 59. Its elimination would, however, reduce the workload of Indiana trial courts, which would no longer need to respond to, and usually deny, endless motions to correct errors. IV. Conclusion If the Trial Rules are really as clear as the supreme court in- dicated, why did the appellate courts have such a difficult time inter- preting and applying them? The supreme court itself gave part of the answer when it accused the appellate decisions of having "hopeless- ly obscured the already murky requirements for post judgment relief." 121 The procedure for seeking postjudgment relief from a default judg- ment or an involuntary dismissal, as clarified in Oxidermo, requires mRobertson, supra note 101, at 562. n8 Id. 119Harvey, supra note 84, at 119 (1971) (quoting Civil Code Study Commission Comments). 120 Id. (quoting Civil Code Study Commission Comments). 121No. 1282 S 471, slip op. at 8 (Ind. 1983) (citing Harvey, supra note 84, at 76 (Supp. 1982)) (quoting Harvey, Civil Procedure and Jurisdiction, 1976 Survey of Recent Developments in Indiana Law, 11 Ind. L. Rev. 51, 71 (1977)). 1983] POSTJUDGMENT RELIEF 557 two motions prior to appeal, a Trial Rule 60(B) motion and a Trial Rule 59 motion to correct errors. The additional motion appears to add nothing to the litigation but extra expense and to extend the period required for resolution of the dispute. This two-motion approach, unless absolutely necessary, contradicts Trial Rule 1 which specifies that the rules "shall be construed to secure the just, speedy and inexpensive determination of every action." 122 The problems remaining after the Oxidermo ruling, both the in- herent problems of obtaining postjudgment relief due to "murky" trial rules and the lack of the "just, speedy and inexpensive determination of every action," 123 could be easily resolved if the Indiana Supreme Court would make one change in the Indiana Trial Rules — eliminate the motion to correct errors under Trial Rule 59 as a prerequisite to appeal. This approach not only would have prevented the problems in P-M Gas and Oxidermo, but also would prevent future problems from developing. As Judge Sullivan recently stated: "It is time now for our appellate tribunals to adopt or effect procedures which per- mit resolution of genuine legal issues on appeal. It must not be [the courts'] function to make that resolution unduly complicated, expen- sive, burdensome and time consuming."124 Sharon B. Hearn 122 Ind. R. Tr. P. 1. l23 Id. 124Houston v. Wireman, 439 N.E.2d 732, 735 (Ind. Ct. App. 1982) (Sullivan J., dissenting).