FILED
Jul 29 2016, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Chawknee P. Caruthers Gregory F. Zoeller
Wabash Valley Correctional Facility Attorney General of Indiana
Carlisle, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Chawknee P. Caruthers, July 29, 2016
Appellant-Petitioner, Court of Appeals Case No.
46A04-1512-PC-2194
v. Appeal from the LaPorte Circuit
Court
State of Indiana, The Honorable Thomas Alevizos,
Appellee-Respondent. Judge
Trial Court Cause No.
46C01-1008-PC-197
Crone, Judge.
Statement of the Case
[1] Chawknee P. Caruthers appeals the postconviction court’s summary dismissal
of his petition for postconviction relief (“PCR”). Caruthers argues that the
postconviction court erred when it summarily dismissed his PCR petition for
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failure to prosecute without first holding a hearing. We agree that pursuant to
Indiana Trial Rule 41(E), the trial court was required to hold a hearing before
dismissing his petition. Therefore, we reverse the dismissal of Caruthers’s PCR
petition and remand for further proceedings.
Facts and Procedural History
[2] On August 1, 2008, a jury found Caruthers guilty of murder and found him to
be a habitual offender. In May 2010, our supreme court affirmed his conviction
and habitual offender finding on direct appeal. Caruthers v. State, 926 N.E.2d
1016 (Ind. 2010).
[3] On August 27, 2010, Caruthers filed a pro se PCR petition. The State filed an
answer and appearance form. In September 2010, a public defender filed an
appearance on Caruthers’s behalf, and in July 2013, she withdrew her
appearance. Caruthers did not take any further action to prosecute his case, the
State did not move to dismiss it, and the postconviction court did not schedule
a hearing on Caruthers’s petition.
[4] On March 19, 2015, the postconviction court issued an order to close the case,
which provided as follows:
The Court, on its own Motion, moves to close the above
captioned case. The Court has set a status hearing … for the 8th
day of May, 2015, at 3:00 p.m. ….
The purpose of this hearing is for the parties/attorneys herein to
advise the Court as to the status of this case and to show cause
why this case should not be closed.
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The above case shall be closed on the 8th day of May 2015,
unless an objection to closing is granted.
Appellant’s App. at 19.
[5] On April 6, 2015, Caruthers filed two motions: one for production of
documents and one for transcript of partial trial proceedings. On April 13,
2015, the postconviction court issued an “Order Clarifying Status,” in which it
stated that the case was subject to a May 8, 2015 hearing to dismiss pursuant to
Trial Rule 41(E) and that the court would reserve Caruthers’s pending motions
for the production of documents and for transcript of partial trial proceedings
pending the outcome of the May 8, 2015 hearing. Id. at 34. The order also
advised Caruthers that the Public Defender’s Office should have the documents
he sought and that he was not precluded from requesting the Public Defender’s
Office to provide him with copies of the documents.
[6] On April 20, 2015, Caruthers filed a motion/notice of case status “to show
cause why [the postconviction court] should not close this case,” 1 in which he
stated that (1) because the issues were complex and he is unskilled in the law,
he had been familiarizing himself with the postconviction rules for the past year
and a half; (2) he was in no way attempting to gain an advantage by stalling the
proceedings and due to his lack of skill needed time to investigate and research
1
The motion/notice was entered in the chronological case summary on May 4, 2015. See Ind. Trial Rule
77(B) (“Notation of judicial events in the Chronological Case Summary shall be made promptly, and shall set
forth the date of the event and briefly define any documents, orders, rulings, or judgments filed or entered in
the case.”).
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in order to prosecute his case; (3) he intended to file an amended PCR petition;
(4) he understood the importance of this matter and his responsibility of
proceeding pro se; and (5) he brought the motion in good faith with the belief
that he had meritorious claims, and for the aforementioned reasons the case
should not be closed Id. at 2, 27-29. Caruthers specifically requested the court
to not close his case. On April 27, 2015, Caruthers filed a motion for the
postconviction court to hold an evidentiary hearing on his PCR petition, and he
requested a transport order to attend the hearing. The postconviction court did
not rule on these motions.
[7] On May 8, 2015, the postconviction court issued an order dismissing
Caruthers’s PCR petition along with 106 other cases for failure to prosecute
pursuant to Trial Rule 41(E). Although the court’s March 19, 2015, order
stated that it would hold a hearing, the chronological case summary (“CCS”)
does not show that the court in fact held that hearing before it dismissed
Caruthers’s petition. 2 This appeal ensued.
Discussion and Decision
[8] Caruthers argues that the postconviction court erred in dismissing his PCR
petition pursuant to Indiana Trial Rule 41(E) without holding a hearing prior to
2
The State does not contend that the postconviction court actually held a hearing but suggests that because
of the large number of cases that were dismissed that day, “it is more than possible that some notations did
not make [it] into the CCS on some cases.” Appellee’s Br. at 11. The CCS is the “official record of the trial
court,” Indiana Trial Rule 77(B), and it is well settled that “a trial court speaks through its docket.” Young v.
State, 765 N.E.2d 673, 678 n. 6 (Ind. Ct. App. 2002). We will not assume that a hearing was held when it
was not entered into the CCS.
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dismissal. We will reverse a Trial Rule 41(E) dismissal for failure to prosecute
“only for a clear abuse of discretion.” Robertson v. State, 687 N.E.2d 223, 224
(Ind. Ct. App. 1997), trans. denied, (1998). “An abuse of discretion occurs if the
decision of the trial court is against the logic and effect of the facts and
circumstances before it.” Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes
Indiana, LLP, 929 N.E.2d 853, 856 (Ind. Ct. App. 2010).
[9] Indiana Trial Rule 41(E) provides,
Whenever there has been a failure to comply with these rules or
when no action has been taken in a civil case[ 3] for a period of
sixty [60] days, the court, on motion of a party or on its own motion
shall order a hearing for the purpose of dismissing such case. The court
shall enter an order of dismissal at plaintiff’s costs if the plaintiff shall not
show sufficient cause at or before such hearing. Dismissal may be
withheld or reinstatement of dismissal may be made subject to
the condition that the plaintiff comply with these rules and
diligently prosecute the action and upon such terms that the court
in its discretion determines to be necessary to assure such diligent
prosecution.
(Emphasis added.)
[10] The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently
pursue their claims’” and to provide “‘an enforcement mechanism whereby a
defendant, or the court, can force a recalcitrant plaintiff to push his case to
3
“Post-conviction proceedings are governed by the same rules ‘applicable in civil proceedings including pre-
trial and discovery procedures.’” Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013) (quoting Post-Conviction
Rule 1(5)).
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resolution.’” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003)
(quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993)), trans.
denied. “‘The burden of moving the litigation is upon the plaintiff, not the
court. It is not the duty of the trial court to contact counsel and urge or require
him to go to trial, even though it would be within the court’s power to do so.’”
Id. (quoting Benton, 622 N.E.2d at 1006). “‘Courts cannot be asked to carry
cases on their dockets indefinitely and the rights of the adverse party should
also be considered. [The adverse party] should not be left with a lawsuit
hanging over his [or her] head indefinitely.’” Id. (quoting Hill v. Duckworth, 679
N.E.2d 938, 939-40 (Ind. Ct. App. 1997)). “Although Indiana does not require
trial courts to impose lesser sanctions before applying the ultimate sanctions of
default judgment or dismissal, we view dismissals with disfavor, and dismissals
are considered extreme remedies that should be granted only under limited
circumstances.” Am. Family Ins., 929 N.E.2d at 857.
[11] Caruthers argues that Trial Rule 41(E) requires a court to hold a hearing prior
to dismissing a case for failure to prosecute. We agree, based on our supreme
court’s decision in Rumfelt v. Himes, 438 N.E.2d 980 (Ind. 1982). In that case,
the Rumfelts filed a nuisance claim against multiple defendants. The
defendants filed a motion to dismiss for failure to comply with rules pursuant to
Trial Rule 41(E). The trial court ordered the Rumfelts to show cause, in
writing, why the motion to dismiss should not be granted. The order specifically
stated,
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Unless adequate cause is shown pursuant to the foregoing order,
the Court will enter an order of dismissal of this action
immediately after July 25. If, however, some cause is shown
upon which the Court desires hearing whether argumentative or
evidentiary, the Court will then set the matter for hearing.
Id. at 982. The Rumfelts filed a response to the court’s order, averring that they
had complied with the court’s rules and setting forth reasons why the case
should not be dismissed. However, without holding a hearing, the trial court
granted the defendants’ motion and dismissed the case.
[12] On appeal, the Rumfelts argued that the trial court erred in ruling on the
defendants’ motion to dismiss without ordering a hearing as required by Rule
41(E). The defendants contended that the Rumfelts’ failure to object waived
any right to a hearing and that “no prejudice was demonstrated because [the
Rumfelts] responded in writing to the trial court’s show cause order.” Id. (emphasis
added). Our supreme court rejected the defendants’ argument, observing that
“[t]he language of Trial Rule 41(E) is explicit: ‘the court, on motion of a party
or on its own motion shall order a hearing for the purpose of dismissing such
case.’” Id. at 983. The court explained, “‘If the failure to obey the clear,
explicit dictates of the Indiana Rules of Procedure can be simply dismissed as
harmless error, then, the erosion of an orderly judicial system has begun.’” Id.
(quoting Otte v. Tessman, 426 N.E.2d 660, 662 (Ind. 1981)). The Rumfelt court
then discussed the conflict between the hearing requirement of Trial Rule 41(E)
and the provision of Trial Rule 73 allowing the trial court to direct the
submission and determination of motions without holding an oral hearing. The
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Rumfelt court noted that a specific rule controls over a general one on the same
subject matter and concluded, “Trial Rule 41(E) clearly requires a hearing on a
motion to dismiss which controls over Trial Rule 73 allowing the trial court to
expedite its business by directing the submission and determination of motions
without oral hearing.” Id. at 983-84. The Rumfelt court therefore concluded
that the trial court had not satisfied the requirements of Trial Rule 41(E),
reversed the trial court’s dismissal, and remanded with instructions to order a
hearing on the defendants’ motion to dismiss in accordance with Trial Rule
41(E).
[13] Justice Prentice, with Justice DeBruler concurring, issued a dissent in Rumfelt,
in which he specifically disagreed that Trial Rule 41(E) required a trial court to
hold a hearing. In his view,
The rule does not require that a hearing be held in open court. It
requires the judge to order a hearing for the purpose of dismissing
the case and mandates a dismissal, absent a showing of sufficient
cause as to why it should not, at or before the hearing. The
appellees submitted pleadings in opposition to the trial court’s
proposed action and Defendants’ motion to dismiss. The use of
the word “before” in the rule contemplates that the trial court
will or can dismiss the cause, based upon the submissions of the
parties, and without a hearing or oral argument in open court.
Id. at 984 (Prentice, J., dissenting). His dissent demonstrates that the Rumfelt
majority interpreted Trial Rule 41(E) to require that the trial court hold a
hearing and not merely schedule a hearing. See also Baker & Daniels, LLP v.
Coachmen Indus., Inc., 924 N.E.2d 130, 138 n.8 (Ind. Ct. App. 2010) (“Although
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the plain language of Rule 41(E) requires that the trial court order a hearing,
which the trial court did in this case, the majority decision in Rumfelt interprets
this language to require the trial court to hold a hearing. This interpretation is
emphasized by the Rumfelt dissent’s disagreement with that interpretation.”)
(citing Rumfelt, 438 N.E.2d at 984), trans. denied.
[14] Rumfelt was cited with approval in Wright v. Miller, 989 N.E.2d 324 (Ind. 2013),
wherein our supreme court stated,
We note that the trial court did not order or hold a hearing to
dismiss as required by Trial Rule 41(E). See Rumfelt, 438 N.E.2d
at 984. Although the absence of a hearing is not determinative in
this case, in light of the gravity of the sanction of dismissal, we
believe that the hearing required by Trial Rule 41(E) should
henceforth likewise be held when a case dismissal is sought or
contemplated under Trial Rule 37.
Id. at 328 n.3 (emphases added). Also, this Court has recognized that Trial
Rule 41(E) requires the trial court to hold a hearing prior to dismissal. See
Somerville Auto Transp. Serv., Inc. v. Auto. Fin. Corp., 12 N.E.3d 955, 961-63 (Ind.
Ct. App. 2014) (holding that Trial Rule 41(E) hearing requirement was not
satisfied where parties appeared by counsel for hearing but trial court did not
hear their arguments and that trial court was required to hold hearing prior to
dismissing case), trans. denied, and cases cited therein. 4
4
Somerville involved the defendants’ appeal of the trial court’s grant of the plaintiff’s motion for
reinstatement following the Trial Rule 41(E) dismissal of the plaintiff’s case and summary judgment in the
plaintiff’s favor. Although Somerville is procedurally different from this case, the issue underlying the
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[15] However, in Metcalf v. Estate of Hastings, 726 N.E.2d 372 (Ind. Ct. App. 2000),
trans. denied, the majority stated that “when the court orders a hearing and
notice of the hearing date is sent to the plaintiff, the hearing requirement of
T.R. 41(E) is satisfied, regardless of whether the plaintiff or his counsel attends
the hearing.” 5 Id. at 374. We believe that this statement conflicts with Rumfelt.
In fact, it is arguably overbroad even when applied solely to the specific
circumstances of that case. Metcalf brought a personal injury action against the
Estate of Hastings. The Estate moved to dismiss pursuant to Trial Rule 41(E)
for failure to prosecute. Metcalf requested a pretrial conference. The trial court
scheduled a conference and hearing on the 41(E) motion. After a series of
continuances granted to both sides, the trial court agreed to conduct the hearing
on the motion to dismiss by telephone. The telephone conference was initiated
at 1:00 p.m. on the scheduled date, but Metcalf’s counsel was unable to reach a
telephone until 1:30 p.m. By that time, the trial judge was unavailable to
participate in the conference call. Metcalf made no attempt to reschedule the
hearing. Sixty days after the date of the scheduled telephone conference, the
trial court granted the Estate’s Trial Rule 41(E) motion to dismiss.
reinstatement of the plaintiff’s action in Somerville–whether dismissal without holding a hearing was in
compliance with Trial Rule 41(E)–is the same.
5
The denial of transfer does not mean that our supreme court agrees with the Court of Appeals’ decision.
See Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 481 n.7 (Ind. 1999) (“Because of various factors
including the burden of other pending cases, particularly criminal cases for which this Court has exclusive
constitutional responsibility, the denial of transfer does not necessarily reflect Supreme Court approval of
decisions of the Court of Appeals in which transfer is sought.”); Ind. Appellate Rule 58(B) (“The denial of a
Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the
Supreme Court.”).
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[16] On appeal, Metcalf argued that the trial court abused its discretion by granting
the Trial Rule 41(E) motion to dismiss without holding a hearing. The Metcalf
majority upheld the dismissal of the case with the following analysis:
The plain language of T.R. 41(E) requires the trial court to order
a hearing once a party has moved to dismiss a case for failure to
prosecute. See Rumfelt[, 438 N.E.2d at 983]. However, when the
court orders a hearing and notice of the hearing date is sent to the
plaintiff, the hearing requirement of T.R. 41(E) is satisfied,
regardless of whether the plaintiff or his counsel attends the
hearing. Lake County Trust v. Highland Plan Com’n, 674 N.E.2d
626, 629 (Ind. Ct. App. 1996), trans. denied [(1997)].
Here, the court ordered a hearing on the Estate’s T.R. 41(E)
motion, and Metcalf received notice of that scheduled hearing
date. Metcalf’s attorney made arrangements to hold the hearing
by telephone. However, he was unable to take part in the
telephone conference at the time that had been arranged. Despite
the attorney’s failure to participate in the hearing, he made no effort
to reschedule the hearing. After sixty days had passed following the
date of the scheduled telephone hearing, the trial court entered an
order granting the Estate’s motion to dismiss.
Metcalf argues that the trial court erred by ruling on the Estate’s
motion without holding a hearing. However, the trial court
ordered a hearing on the T.R. 41(E) motion to dismiss and
Metcalf had an opportunity to respond; this was sufficient to satisfy
the hearing requirement of T.R. 41(E). See Lake County, 674
N.E.2d at 629. Therefore, we hold that the trial court did not err
by dismissing the case without holding an adversarial hearing.
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Id. (emphases added). 6
[17] In concluding that the trial court did not abuse its discretion in dismissing
Metcalf’s action, it is significant that the Metcalf court considered more than the
trial court’s simple action of scheduling a hearing and providing notice thereof
to the plaintiff. The Metcalf court also considered that Metcalf had an
opportunity to respond to the motion to dismiss at the teleconference. In other
words, the trial court was prepared to hold the telephone conference and would
have heard Metcalf’s argument had his counsel been present. Simply put, the
trial court attempted to hold a hearing. Also, the Metcalf court noted that
Metcalf made no attempt to reschedule the hearing even though the trial court
waited sixty days before it granted the motion to dismiss.
[18] Judge Sullivan dissented in Metcalf, opining that Trial Rule 41(E) “clearly
contemplate[s] that a hearing not only be scheduled, but that it be conducted
unless, and only unless the plaintiff has, prior to the hearing, been afforded
opportunity to demonstrate sufficient good cause for the delay and has in fact
done so.” Id. at 374-75 (Sullivan, J. dissenting). We believe that Judge
Sullivan’s dissent is not only a correct reading of the rule but is also consistent
with Rumfelt, which we are bound to follow as controlling supreme court
6
We disagree with the Metcalf majority that Lake County, 674 N.E.2d 626, stands for the proposition that the
trial court satisfies the hearing requirement of Trial Rule 41(E) by ordering a hearing and providing notice of
the hearing to the plaintiff regardless of whether the plaintiff or his or her counsel attends the hearing. Lake
County addressed whether a judgment of dismissal was void for lack of notice; it did not actually consider the
hearing requirement of Trial Rule 41(E). The Lake County court concluded that “the docket entry specifically
state[d] that notice was ordered to the attorney of record” and held that the “order of dismissal [was] not void
for lack of notice.” Id. at 629.
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precedent. See Minor v. State, 36 N.E.3d 1065, 1074 (Ind. Ct. App. 2015)
(“‘[W]e are bound to follow the precedent of our supreme court.’”) (quoting
Smith v. State, 777 N.E.2d 32, 38 n.2 (Ind. Ct. App. 2002), trans. denied (2003)),
trans. denied.
[19] Here, after the postconviction court issued its March 19, 2015 order to close the
case and set a status hearing for May 8, Caruthers filed motions for production
of documents and for transcript of partial trial proceedings, which the trial court
held in abeyance pending the May 8 hearing. Then, Caruthers responded
directly to the March 19, 2015 order with his April 20, 2015 motion/notice of
case status to show cause why the case should not be closed. Trial Rule 41(E)
does not require the plaintiff to wait until the scheduled hearing to show cause
but clearly anticipates that a plaintiff may show cause at or before the hearing.
The trial court did not rule on his April 20, 2015 motion to show cause.
Caruthers also filed a motion for evidentiary hearing and a request for transport
order, which the trial court did not rule on. There were multiple mechanisms
that were available to the court to address Caruthers’s motions, such as
arranging a telephone conference or directing Caruthers to submit his case by
affidavit. However, the trial court dismissed his action without holding a
hearing as required by Trial Rule 41(E). 7 See Rumfelt, 438 N.E.2d at 983.
Accordingly, we reverse the postconviction court’s summary dismissal of
7
Although there may be circumstances where a trial court’s dismissal of an action without first holding a
hearing will not constitute reversible error, in this case strict compliance with Trial Rule 41(E)’s hearing
requirement is warranted.
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Caruthers’s PCR action and remand for either a Trial Rule 41(E) hearing or
reinstatement of his action.
[20] Reversed and remanded.
Najam, J., and Robb, J., concur.
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