 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                MEMORANDUM DECISION - NOT FOR PUBLICATION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




                                              2
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).


1
  By this time, Wagner had paid “the majority” of Rugged’s judgment against them. Appellant’s Appendix at
49.


                                                   3
       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

                                              4
       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


                                              5
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.




                                              6
