¶1dissenting.
¶2The majority's affirmance of the granting of T.R. 60 relief to Janet Flores is premised upon the conclusion that to do otherwise would be to deny Janet her right to appeal the May 2, 1994 order of the trial court. The question is not whether Janet, by the unavailability of a record, was being denied the right to an appeal. The reality is merely that she has no basis in law to overturn that order.
¶3The decision reached today ignores the agreement of the parties to be bound by the judgment which would result from the "hearing" procedure agreed to. Absent fraud or some clear defect upon the face of the May 2, 1994 order, Janet should not be permitted to obtain a belated opportunity to submit evidence.
¶4Appellant is correct in categorizing the relief granted as giving Janet "a second chanee to persuade a different judge with different evidence according to a different *98procedure." Appellant's Brief at 11. Mrs. Flores, herself, suggested the abbreviated or off-the-record procedure used. The parties submitted a written stipulation of pertinent facts to the court and waived formal presentation of evidence. They also waived the right to be present at the time counsel for both sides presented argument and interlaced their respective arguments with presentations of factual matters.
¶5Mrs. Flores should not be permitted to await the judgment which she invited and, deeming it to be unfavorable, seek to begin all over again. Scheetz v. Scheets (1988) Ind.App., 522 N.E2d 919, op. on reh'g; Showley v. Showley (1988) Ind.App., 454 N.E.2d 1230.
¶6I would reverse the granting of TR. 60 relief and remand with instructions to reinstate the order of May 2, 1994.