ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PHILIP E. HESCH JAMES P. HAYES
Hesch, Rosenberg & Roberts Holmes, Hayes & Walter
Bremen, Indiana Plymouth, Indiana
KEVIN MCINTYRE, ) ) Appellant-Defendant, ) ) vs. ) No. 50A03-9706-CV-202 ) DONALD D. BAKER AND BETTY L. BAKER, ) GERALD C. HALL AND ELIZABETH Y. HALL, ) RICHARD L. HANKEMEIER AND BARBARA ) HANKEMEIER, NANCY A. HIPSKIND AND ) JAMES P. HIPSKIND, MR. AND MRS. JAMES ) H. KURTZ, OWEN C. MUIR AND BONNIE H. ) MUIR, BETTY J. SNYDER AND PERRY M. ) SNYDER, ) ) Appellees-Plaintiffs. )
Marshall County Recorder's Office a document entitled "Amendment To Restriction in
Bonnie Neys Subdivision." The document, which contained the signatures of a number of
McIntyre's neighbors, modified the language of the covenant thereby allowing McIntyre to
maintain his manufactured home on the property.See footnote
On December 6, 1996, armed with the
amendment, McIntyre filed a motion for relief from judgment. A hearing was conducted
which revealed that some of the lot owners who had signed the amendment at McIntyre's
request had recorded a petition wherein they withdrew or attempted to withdraw their names
from the document. They did so because certain information either was not accurately given
to them or was withheld from them. The trial court thus determined that McIntyre lacked the
requisite number of signatures to amend the covenant. Denying McIntyre's motion the trial
court concluded that the restrictions on the Bonnie Neys Subdivision remained in full force
and effect. This appeal followed.
McIntyre raises a single issue for our review framing it in terms of trial court error in "rescind[ing] the amendment absent any false statements by Mr. McIntyre." Brief of Appellant at 4. First, we see the issue as whether the trial court properly denied McIntyre's motion for relief from judgment. Our scope of review for the grant or denial of a T.R. 60(B) motion is limited to whether the trial court abused its discretion. Lake County Trust v. Highland Plan Comm'n, 674 N.E.2d 626, 628 (Ind. Ct. App. 1996) trans. denied. An abuse of discretion occurs where the trial court's judgment is clearly against the logic and effect of
the facts and inferences supporting the judgment for relief. Id. Second, where as here the
trial court enters a general judgment, we will affirm on any theory supported by the evidence
of record. Catellier v. Depco, Inc., 696 N.E.2d 75, 77 (Ind. Ct. App. 1998).
McIntyre's motion was filed under the provisions of T.R. 60(B)(2), (7), and (8). Attaching the Amendment to the motion he claimed "there has been a material change in circumstances since the entry of the Order herein described in that new evidence has occurred and new circumstances have developed by the filing of Amendments . . . ." R. at 168. The burden is on the movant to establish the grounds for T.R. 60(B) relief. Summit Account & Computer v. Hogge, 608 N.E.2d 1003, 1006 (Ind. Ct. App. 1993). It is clear that newly discovered evidence is a ground for relief under T.R. 60(B)(2). The movant has the burden of demonstrating that such evidence "by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59." Id. at 1005. Under Ind. Trial Rule 59 a motion to correct errors must be filed not later than thirty days after judgment. In this case McIntyre does not explain what evidence he contends is "new evidence" justifying relief under the rule. It is not clear, for example, whether the "new evidence" is the purported Amendment filed with the County Recorder's Office, the knowledge of the provision allowing an amendment, or the cooperation of McIntyre's neighbors in affixing their signatures to the Amendment. In any event McIntyre filed his motion for relief from judgment on December 6, 1996. He has not demonstrated or even alleged that the "new evidence" by due diligence could not have been discovered by August
24, 1996, which was thirty days after entry of judgment. McIntyre is entitled to no relief
under T.R. 60(B)(2).
A party may obtain relief from judgment under T. R. 60(B)(7) where:
[T]he judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
The only provision applicable here is that "it is no longer equitable that the judgment should
have prospective application." Id. McIntyre's argument on this point appears to be that the
judgment of the trial court ordering him to remove the manufactured home was based upon
a restrictive covenant. The argument appears to continue that because the restriction has
been removed by reason of the Amendment, the underlying rationale for the judgment no
To establish that it is no longer equitable for a final judgment to have prospective application the movant must show that there has been a change of circumstances since the entry of the original judgment and that the change of circumstances was not reasonably foreseeable at the time of entry of the original judgment. State v. Martinsville Development Co., Inc., 174 Ind. App. 157, 366 N.E.2d 681, 684 (1977). The change of circumstances here is that the purported Amendment would have allowed McIntyre's manufactured home to remain on his lot. However the trial court determined that the Amendment was of no effect because McIntyre did not have the required number of signatures. More specifically the trial court found and the record reveals that McIntyre did not provide his neighbors with complete and accurate information when he asked them to sign a petition supporting the Amendment.
One neighbor in particular, Mr. Pomroy, testified by way of deposition that the only reason
he agreed to sign the petition was that McIntyre informed him that "he wasn't told prior to
having everything finished that there were restrictions on the lot . . . ." S.R.See footnote
at 19. This was
an inaccurate representation. The question of McIntyre's prior notice of the restrictions was
determined by the trial court sometime in 1994 and affirmed by this court on appeal in 1996.
Once Mr. Pomroy learned the truth, he attempted to withdraw his name from the
Contrary to McIntyre's contention we need not examine whether his representations amounted to fraud. Similarly, we need not explore whether Mr. Pomroy or other signatories could in fact withdraw their names and thereby revoke the Amendment. Rather, our focus is more narrow: Has McIntyre carried his burden establishing the grounds for T.R. 60(B) relief? The alleged change in circumstances here was improperly manufactured by McIntyre himself. More importantly McIntyre has failed to show or even argue that the purported Amendment was not reasonably foreseeable at the time of entry of the original judgment. Martinsville, 366 N.E.2d at 684. Stated more accurately McIntyre has failed to show that it was not reasonably foreseeable on July 24, 1996, that a number of his neighbors would agree to sign a petition supporting his amendment to the restrictive covenants. AccordinglyMcIntyre has not carried his burden of showing that he is entitled to relief under T.R. 60(B)(7).
Converted from WP6.1 by the Access Indiana Information Network