Court of Appeals of Indiana | Memorandum Decision 20A

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- 1143 | October 29, 2020 Page 1 of 5 

### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT 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 T.G.; Terrance Gray, Jr. , Appellant

- Respondent ,
v. 

### Devika Naicker , Appellee

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etitioner. October 29, 2020 Court of Appeals Ca se No. 20A

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- 1143 Appeal from the Marion Circuit Court The Honorable Sheryl L. Lynch, Judge The Honorable Melissa Hayden Kramer, Commissioner Trial Court Cause No. 49C01

- 1502

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Najam , Judge .Court of Appeals of Indiana | Memorandum Decision 20A

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- 1143 | October 29, 2020 Page 2 of 5 

### Statement of the Case
[1] Terrance Gray, Jr. appeal s 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

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### 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 1 3, the court entered its order on Gray’s first motion toCourt of Appeals of Indiana | Memorandum Decision 20A

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- 1143 | October 29, 2020 Page 3 of 5 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 t hat 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 Decisio n 1 

### 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 reque st 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 th an 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).Court of Appeals of Indiana | Memorandum Decision 20A

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- 1143 | October 29, 2020 Page 4 of 5 [7] O n 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 prov ides 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, namel y, 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
mot ion, 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 aCourt of Appeals of Indiana | Memorandum Decision 20A

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- 1143 | October 29, 2020 Page 5 of 5 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 appea l 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 instructi ons 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 den y 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

.