Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cit ed before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT S :

G. JAYSON MARKSBERRY Marksberry Law Office Danville , Indiana



## IN THE

COURT OF APPEALS OF INDIANA

MICHAEL and BRENDA GRALIA
, ) ) Appellant s

- Plaintiff

s , ) )

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 PUBLICATIO N

BRADFORD , Judge2

Appellant s

- Plaintiffs Michael and Brenda Gralia filed a complaint against Appellee

Defendant 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 t rial 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 whic h 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 th e 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 o n 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

res pond 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 app ellee’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 ap pellee. 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, B utler 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 u pon 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 Indian a , 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 ad missible 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 complaint4

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

pursuant to T rial 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 ac tion 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 ac tion.” (Emphasis added). T he 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 tri al 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 it s
December 12, 2012 order

. The trial court did not provid e 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 T rial 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 erroneously5

granted Butler’s motion to dismiss. Moreover, t he 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.