Pursuant to Ind.Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

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MEMORANDUM DECISION - NOT FOR PUBLICATION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).

1

 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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