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.

ATTORNEY FOR APPELLANTS:

G. JAYSON MARKSBERRY

Marksberry Law Office

Danville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL and BRENDA GRALIA, )

)

Appellants-Plaintiffs, )

)

vs. ) No. 67A01-1301-CT-26

)

BUTLER GARDEN CENTER, )

) 

Appellee-Defendant. )

APPEAL FROM THE PUTNAM CIRCUIT COURT

The Honorable Matthew L. Headley, Judge

Cause No. 67C01-1108-CT-362

May 30, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
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Appellants-Plaintiffs Michael and Brenda Gralia filed a complaint against AppelleeDefendant Butler Garden Center alleging that Butler breached a contract entered into by the 

parties for the completion of certain landscaping services. On December 10, 2012, Butler 

filed a motion to dismiss. On December 12, 2012, the Gralias filed a request for a hearing on 

Butler’s motion. Also on December 12, 2012, the trial court awarded the Gralias thirty days 

to respond to Butler’s motion. The trial court subsequently granted Butler’s motion and 

dismissed the Gralias’ lawsuit prior to the expiration of those thirty days. On appeal, the 

Gralias contend that the trial court erred by dismissing their complaint before the expiration 

of the time which the trial court had awarded them to respond. We agree. Accordingly, we 

reverse the trial court’s order and remand for further proceedings consistent with this 

memorandum decision. 

FACTS AND PROCEDURAL HISTORY

On or about August 26, 2011, the Gralias filed suit against Butler alleging that Butler

had breached a contract entered into by the parties for the completion of certain landscaping 

services.

1

 On December 10, 2012, Butler filed a motion to dismiss, arguing that the Gralias 

had failed to name the proper party as the defendant. On December 12, 2012, the Gralias 

filed a request for a hearing on Butler’s motion. Also on December 12, 2012, the trial court, 

by an entry on the Chronological Case Summary (“CCS”), awarded the Gralias thirty days to 

 

1

 The parties filed multiple procedural motions before the trial court during the approximately fifteen 

to sixteen months after the Gralias initiated the underlying lawsuit, none of which are relevant to the instant 

appeal. 
3

respond to Butler’s motion. Six days later, on December 18, 2012, the trial court issued an 

order granting Butler’s motion and dismissing the Gralias’ complaint. This appeal follows.

DISCUSSION AND DECISION

Initially, we note that Butler did not file an appellee’s brief. 

When an appellee fails to file a brief, we apply a less stringent standard of 

review. McKinney v. McKinney, 820 N.E.2d 682, 685 (Ind. Ct. App. 2005). 

We are under no obligation to undertake the burden of developing an argument 

for the appellee. Id. We may, therefore, reverse the trial court if the appellant 

establishes prima facie error. Id. “Prima facie” is defined as “at first sight, on 

first appearance, or on the face of it.” Id.

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006).

The Gralias appeal following the dismissal of their complaint against Butler. Below, 

Butler sought dismissal of the Gralias’ complaint, alleging that the Gralias had failed to state 

a claim upon which relief could be granted. Specifically, Butler argued that the Gralias had 

failed to name the real party in interest as required by Trial Rule 17. 

Trial Rule 12 authorizes a party to present by motion certain defenses, one of 

which is specified by subsection 12(B)(6): “Failure to state a claim upon which 

relief can be granted, which shall include failure to name the real party in 

interest under Rule 17.” A motion to dismiss asserting Rule 12(B)(6) 

challenges the legal sufficiency of a complaint. Trail v. Boys and Girls Clubs 

of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). In ruling on such a 

motion to dismiss, “a court is required to take as true all allegations upon the 

face of the complaint and may only dismiss if the plaintiff would not be 

entitled to recover under any set of facts admissible under the allegations of the 

complaint.” Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806, 814 

(Ind. 2004). In reviewing such motions, all reasonable inferences must be 

drawn in favor of the non-moving party. Id.; Trail, 845 N.E.2d at 134.

Meyers v. Meyers, 861 N.E.2d 704, 705-06 (Ind. 2007).

On appeal, the Gralias argue that the trial court erred in dismissing their complaint 
4

against Butler because the trial court failed to provide them with a reasonable time to respond 

pursuant to Trial Rule 17, and also because the trial court granted Butler’s motion and 

dismissed their complaint before the thirty days awarded to them by the trial court to respond 

to Butler’s motion had expired. Trial Rule 17 provides, in relevant part, that “No action shall 

be dismissed on the ground that it is not prosecuted in the name of the real party in interest 

until a reasonable time after objection has been allowed for the real party in interest to ratify 

the action, or to be joined or substituted in the action.” (Emphasis added). The procedural 

history of the case at issue indicates that the trial court granted Butler’s motion to dismiss 

without first granting the Gralias a reasonable amount of time to respond. 

Again, Butler filed its motion on December 10, 2012. On December 12, 2012, the 

Gralias requested a hearing on Butler’s motion. Also on December 12, 2012, the trial court 

made order by entry on the CCS indicating that it was awarding the Gralias thirty days to 

respond to Butler’s motion. The trial court, however, did not wait for this thirty-day period 

to expire before it granted Butler’s motion on December 18, 2012, only six days after its 

December 12, 2012 order. 

The trial court did not provide any justifiable reason why, after awarding the Gralias 

thirty days to respond to Butler’s motion to dismiss, it granted Butler’s motion before the 

Gralias had a reasonable opportunity to file a timely response. In light of the requirement 

that a party have a reasonable period of time to respond to a Trial Rule 17 motion to dismiss 

before such motion can be granted, and the trial court’s failure to allow for a timely response 

in accordance with the trial court’s own orders, we conclude that the trial court erroneously 
5

granted Butler’s motion to dismiss. Moreover, the trial court’s error cannot be considered 

harmless as it denied the Gralias the opportunity to seek a determination of their claims 

against Butler on the merits.2 As such, we reverse the trial court’s order and remand to the 

trial court for further proceedings. On remand, the trial court should grant the Gralias an 

opportunity to respond to Butler’s motion to dismiss before making any ruling on said 

motion.

The judgment of the trial court is reversed and remanded with instructions.

RILEY, J., and BROWN, J., concur.

 

2

 The Gralias could not, after dismissal, re-file the instant action because the statute of limitations has 

apparently run.