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Hawkins v. Cannon5/2/2005
his efforts failed. See Ind.Trial Rule 59(A)(1); Kahlenbeck, 719 N.E.2d at 1218. Here, the videotape simply shows Cannon engaging in several normal errands and activities. We fail to see why this type of evidence could not have been discovered in the more than two years and seven months that elapsed from the filing of the complaint to the start of the trial. Accordingly, we find that Hawkins failed to use due diligence in discovering evidence of Cannon exaggerating her injuries, and therefore the trial court did not abuse its discretion in denying Hawkins' Motion to Correct Error based upon newly discovered evidence.
D. Fraud or Misrepresentation
Lastly, Hawkins contends that his Motion to Correct Error should have been granted because of Cannon's fraud upon the trial court. In particular, Hawkins claims that intrinsic fraud occurred because the evidence deducted from the video surveillance of Cannon reveals strong inconsistencies with the testimony she gave during trial regarding her pain and injuries. Again, we will not reverse a denial of a motion to correct error in the absence of an abuse of discretion. Beall, 813 N.E.2d at 783-84.
Indiana Trial Rule 60(B) provides in pertinent part:
On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct or an adverse party.
Intrinsic fraud is defined as false evidence, whether in the form of perjured testimony under oath in open court, or in a pleading or affidavit admitted into evidence. In re The Marriage of William T. Glover v. Torrence, 723 N.E.2d 924, 932 (Ind. Ct. App. 2000).
Furthermore, to assert a claim of fraud on the trial court, the party must establish that an unconscionable plan or scheme was used to improperly influence the trial court's decision and that such acts prevented the losing party from fully and fairly presenting its case or defense. In re the Adopting of Fitz, 805 N.E.2d 1270, 1273 (Ind. Ct. App. 2004) (citing Stonger v. Sorrell, 776 N.E.2d 353, 357 (Ind. 2002)), trans. denied. Fraud on the trial court has been narrowly applied and is limited to the most egregious of circumstances involving the courts. Id. To prove fraud on the trial court, it is not enough to show a possibility that the trial court was misled. Id. Instead, there must be a showing that the trial court's decision was actually influenced. Id.
Here, Hawkins maintains that Cannon lied to the trial court concerning the extent of her pain and injuries because the video surveillance recorded her doing things during her daily activities that she testified she could not do. However, after fully reviewing the transcript and videotape we fail to find any inconsistencies between Cannon's testimony and her out of court actions. Therefore, we hold that the trial court did not abuse its discretion in denying Hawkins' Motion to Correct Error with respect to his claim for intrinsic fraud.
CONCLUSION
Based on the foregoing we find that the trial court did not err by denying Hawkins' Motion to Correct Error.
Affirmed.
ROBB, J., and CRONE, J., concur.
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