MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 29 2020, 8:27 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Travis A. Van Winkle
Law Office of Travis Van Winkle, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of October 29, 2020
T.G.; Court of Appeals Case No.
20A-JP-1143
Terrance Gray, Jr.,
Appeal from the Marion Circuit
Appellant-Respondent, Court
v. The Honorable Sheryl L. Lynch,
Judge
Devika Naicker, The Honorable Melissa Hayden
Kramer, Commissioner
Appellee-Petitioner.
Trial Court Cause No.
49C01-1502-JP-93
Najam, Judge.
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Statement of the Case
[1] Terrance Gray, Jr. appeals the trial court’s denial of his second motion to
correct error. Gray raises two issues for our review:
1. Whether Indiana Trial Rule 59 permitted him to file a
second motion to correct error following the trial court’s
order on his first motion to correct error, which order
modified the original final judgment.
2. Whether the trial court erred when it dismissed Devika
Naicker’s petition to modify child custody for failure to
prosecute without first holding a hearing on its intent to
dismiss her petition.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] On June 18, 2019, Naicker filed a petition to modify custody with respect to a
minor child she had had with Gray. In January of 2020, the court held a
hearing on Naicker’s petition, but she did not appear. Gray then requested that
the court deem admitted his request for admissions to Naicker, to which she
had not responded. The court denied that request and dismissed Naicker’s
petition.
[4] On February 14, Gray filed his first motion to correct error. In that motion, he
reiterated his position that the unresponded-to admissions should be deemed
admitted. On March 13, the court entered its order on Gray’s first motion to
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correct error. In that order, the court deemed the admissions admitted and then
affirmed its dismissal of Naicker’s petition.
[5] On April 13, Gray filed a second motion to correct error on the ground that
dismissal of Naicker’s petition was not a proper remedy. The trial court
dismissed Gray’s second motion as untimely on May 13. On June 11, Gray
filed his notice of appeal, and this appeal ensued.
Discussion and Decision1
Issue One: Gray’s Second Motion to Correct Error
[6] On appeal, Gray first asserts that the trial court erred when it denied his second
motion to correct error as untimely. The trial court entered its final judgment in
this matter in January of 2020 when it denied Gray’s request to have the
admissions deemed admitted and dismissed Naicker’s petition. Gray timely
filed his first motion to correct error from that judgment on February 14, 2020.
As our trial rules make clear, a motion to correct error “shall be filed not later
than thirty (30) days after the entry of a final judgment . . . .” Ind. Trial Rule 59(C)
(emphasis added).
1
Naicker has not filed an appellee’s brief and, as such, we review Gray’s arguments on appeal for prima facie
error. Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020).
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[7] On March 13, the court entered its order granting Gray’s motion to correct
error in part by deeming the admissions admitted. Thus, in that order, the court
modified the original final judgment.
[8] Our Supreme Court has held that such an order permits the parties to file an
additional motion to correct error. As the Court has held:
after one motion to correct error has been filed and the trial court
has subsequently altered, amended, or supplemented its findings
and/or judgment, the parties have the discretion to appeal
immediately or to file a new motion to correct error directed to
the changed findings and/or judgment. This liberal
interpretation provides the needed flexibility in our trial rule and
gives an equitable opportunity for appeal to all parties. This
holding is consistent with our present T[.]R. 59.
Breeze v. Breeze, 421 N.E.2d 647, 650 (Ind. 1981) (footnote omitted). Although
Breeze is nearly four decades old, it is still good law. Accordingly, the trial court
erred when it denied Gray’s second motion to correct error as untimely.
Issue Two: Whether Dismissal Was Proper
[9] We thus turn to the merits of Gray’s argument on appeal, namely, that the trial
court erred when it dismissed Naicker’s petition. The trial court dismissed
Naicker’s petition sua sponte for failure to prosecute under Indiana Trial Rule
41(E). Trial Rule 41(E) permits a trial court to dismiss a matter on its own
motion, but only after the trial court orders and holds a hearing on dismissal
with notice of the hearing date having been sent to the plaintiff. See Caruthers v.
State, 58 N.E.3d 207, 211-12 (Ind. Ct. App. 2016). The trial court did not set a
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hearing date or hold a hearing on its intent to dismiss Naicker’s petition and did
not serve her with notice of that hearing date. Accordingly, we agree with Gray
that the trial court erred when it sua sponte dismissed Naicker’s petition.
[10] Gray further asserts on appeal that the proper remedy is to deny Naicker’s
petition on its merits based on Naicker’s admissions. But it is not our place to
make that call in the first instance. Rather, we conclude that the proper
resolution of this appeal is to remand with instructions for the trial court either
to set a hearing date on its intent to dismiss Naicker’s petition and serve
Naicker with notice of that date or, alternatively, the court on remand may
consider Gray’s argument to deny Naicker’s petition on its merits.
[11] Thus, we reverse the trial court’s denial of Gray’s second motion to dismiss and
remand with instructions.
[12] Reversed and remanded.
Bradford, C.J., and Mathias, J., concur.
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