                                                                                   FILED
                                                                               Apr 29 2020, 9:47 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT
Alex M. Beeman
Reminger Co., L.P.A.
Indianapolis, Indiana
Kyle F. Noone
Anderson, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Larry D. Penley,                                           April 29, 2020
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           19A-DN-1918
        v.                                                 Appeal from the Tipton Circuit
                                                           Court
Kelly R. Penley,                                           The Honorable Thomas R. Lett,
Appellee-Petitioner.                                       Judge
                                                           Trial Court Cause No.
                                                           80C01-1708-DN-273




Pyle, Judge.




Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020                         Page 1 of 13
                                        Statement of the Case
[1]   Larry Penley (“Husband”) appeals the trial court’s order denying his motion for

      leave to file a belated motion to correct error, pursuant to Indiana Trial Rule

      72(E), to challenge his final dissolution decree. Husband argues that he showed

      good cause pursuant to Indiana Trial Rule 72(E) where he did not receive

      notice of the dissolution decree and there is no notation in the trial court’s

      chronological case summary indicating that a copy of the dissolution decree

      was provided to him. Concluding that the trial court abused its discretion by

      denying Husband’s request for leave to file a belated motion to correct error, we

      reverse and remand to the trial court for further proceedings.


[2]   We reverse.


                                                       Issue
              Whether the trial court abused its discretion by denying Husband’s
              motion for leave to file a belated motion to correct error pursuant
              Trial Rule 72.

                                                      Facts
[3]   Husband and Kelly Penley (“Wife”) were married in 1988. In August 2017,

      Wife filed a petition for dissolution of their marriage. On December 18, 2017,

      the trial court issued a dissolution decree, dissolving the parties’ marriage. The

      trial court also set a final hearing to determine distribution of the marital estate.

      The chronological case summary (“CCS”) contains an entry to show that the



      Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020          Page 2 of 13
      trial court clerk sent electronic notice of this dissolution decree to the parties’

      named attorneys.1


[4]   On September 18, 2018, the trial court held the final dissolution hearing.

      During the hearing, the parties discussed their marital assets and debts. One of

      their assets was their house, which they had already sold for over $97,000.00.

      The parties put the proceeds in a trust account pending the final dissolution

      decree. One of their debts was a personal loan (“personal home loan”) that the

      couple had obtained from a friend, Gracie Hamilton (“Hamilton”), when they

      had purchased their home. Wife testified that she and Husband had borrowed

      $65,000.00 from Hamilton in September 2011 or 2012 and that they had made

      monthly payments to Hamilton through the time of the provisional dissolution

      hearing in December 2017. Husband testified that he and Wife had signed a

      contract with Hamilton and that Hamilton had a copy of the contract.

      Hamilton did not appear for the hearing or submit anything to show the

      amount that Husband and Wife still owed her on the personal home loan.


[5]   The balance owed on the personal home loan was disputed by the parties

      during the final dissolution hearing. Wife testified and presented exhibits,




      1
        The CCS entry for this provisional dissolution decree contains the following notes: “Copy of Decree to
      counsel by Clerk. Notice ordered.” (App. Vol. 2 at 4). The CCS also indicates that the dissolution decree
      was entered into the RJO on December 18, 2017 and that on December 19, 2017, “Automated ENotice [was]
      Issued to [the] Parties” for the “Decree Issued [on] 12/18/2017” to the two named attorneys for the parties.
      (App. Vol. 2 at 4).

      Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020                             Page 3 of 13
      suggesting that the amount owed was either $13,190.00 or $6,580.00.2 Husband

      testified that he disagreed with the two amounts submitted by Wife. Instead, he

      asserted that the amount owed was closer to $14,000.00, and he based that

      amount on a conversation that he said he had had with Hamilton. At the end

      of the hearing, counsel for both parties addressed the personal home loan and

      suggested that the trial court should incorporate payment of the personal loan

      into the final dissolution order. The trial judge told the parties that he would

      “take it under advisement, take a look at it, and . . . get a decree out just as soon

      as [he] c[ould].” (Tr. Vol. 2 at 51).


[6]   Thereafter, on November 8, 2018, the trial court issued the final dissolution

      decree (“November 2018 Decree). The trial court ordered, in part, for the

      proceeds from the sale of the parties’ house to be used to “pay the Gracie

      Hamilton Loan in the amount of $13,190.00,” to reimburse Wife for some

      previous payments she had made on behalf of Husband, and to cover other

      debt, including Wife’s $19,000.00 student loan. (App. Vol. 2 at 22). The trial

      court also determined that Husband had dissipated marital assets during the

      course of the marriage and ordered that, due to this dissipation, the remaining




      2
        Wife submitted property/debt worksheet as her Exhibit 2, and this worksheet indicated that the parties
      owed $13,190.00 on their personal home loan. This amount had apparently been previously submitted by
      Husband’s counsel to Wife’s counsel. Wife also submitted Exhibit 1, which was a photograph of a phone
      that contained a screenshot of a piece of paper with the amount of $6,580.00 handwritten on the paper. Wife
      testified that Hamilton had written that amount on the piece of paper in May 2017.

      Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020                             Page 4 of 13
      proceeds from the house sale, totaling close to $60,000.00, be distributed 70% to

      Wife and 30% to Husband.


[7]   The CCS, however, does not contain any notation to indicate that this

      November 2018 Decree was sent to the parties. While the CCS entry for the

      final dissolution decree correctly indicates that it was signed on November 8,

      2018, the date listed for the CCS entry incorrectly indicates that the decree was

      entered into the CCS on September 18, 2018, which was the day of the final

      dissolution hearing. The CCS entry for the final dissolution decree contains the

      following note: “Notice ordered.” (App. Vol. 2 at 6). The CCS also indicates

      that the final dissolution decree was entered into the Record of Judgments and

      Orders (“RJO”) on November 9, 2018. The CCS, however, does not indicate

      that automated ENotice was sent to the parties.


[8]   Three months later, on February 11, 2019, Husband filed a copy of a release of

      general claims. This release was signed by Hamilton and indicated that she had

      released Husband and Wife for the personal home loan for $10,000.00.


[9]   On March 25, 2019, Wife’s counsel notified Husband’s counsel that the CCS

      indicated that the trial court had entered the final dissolution decree. The

      following day, on March 26, 2019, Husband filed a “Motion for Leave and to

      Reconsider,” which he treated as a motion seeking leave to file a belated

      motion to correct error. (App. Vol. 2 at 23) (capitalization edited). Husband

      asserted that he had received neither written nor electronic notice of the

      November 2018 Decree as required by Trial Rule 72, and he asked the trial


      Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020       Page 5 of 13
       court to reconsider “items entered into the decree of dissolution.” (App. Vol. 2

       at 23). Husband asked the trial court to change the November 2018 Decree to

       indicate that the amount required to be paid to Hamilton was $10,000.00 rather

       than $13,190.00. Husband also asked the trial court to reconsider its order

       regarding payment of the student loan debt and whether there should be a fifty-

       fifty split of the remaining house proceeds.


[10]   The trial court held a hearing on Husband’s motion on May 16, 2019. During

       the hearing, the trial court asked Husband what authority it had to change the

       November 2018 Decree when Husband had failed to file a motion to correct

       error within thirty days of that final decree. The trial court allowed the parties

       to make their arguments in the hearing and in post-hearing briefs. Husband’s

       counsel asserted that, pursuant to Trial Rule 72(E), the trial court could extend

       his time to file a motion to correct error because the trial court clerk had not

       provided written or electronic notice of the final decree. Husband’s counsel

       stated that he had “checked religiously” and had been “continuously searching

       the CCS to look for [the] order because [he] hadn’t received it.” (Tr. Vol. 2 at

       56). Husband’s counsel further asserted that there was good cause for the trial

       court to extend the deadline because neither party had received the November

       2018 Decree, there was no “proof from court records and the Odyssey system

       that notices were actually generated to both parties,” and counsel was not

       aware of the decree until he had been notified by opposing counsel on March

       25, 2019. (App. Vol. 2 at 27).




       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020         Page 6 of 13
[11]   Wife’s counsel acknowledged that the trial court clerk had not served a copy of

       the November 2018 Decree to the parties as required by Trial Rule 72(D). Wife

       argued that the trial court did not have authority to modify the decree or to

       allow a belated motion to correct error where the CCS contained entries for the

       November 2018 Decree and corresponding RJO. Wife asserted that, under

       Trial Rule 59(C), Husband was required to file a motion to correct error not

       later than thirty days after entry of the final judgment was noted in the CCS and

       that, pursuant to Trial Rule 6(B)(2), the trial court was prohibited from

       extending the time for filing a motion to correct error under Trial Rule 59(C).

       Wife argued that because the dissolution decree had been noted in the CCS,

       Husband had the information necessary to file a motion to correct error, and

       the trial court had “los[t] [its] ability to execute any orders to the contrary[.]”

       (Tr. Vol. 2 at 55).


[12]   While reviewing the CCS, the trial court noted that the dissolution decree was

       dated November 8, 2018 but contained a CCS entry date of September 18, 2018

       and that the RJO had a CCS entry date of November 9, 2018. The trial court

       could not explain why the CCS entry date for the November 2018 Decree was

       incorrectly entered as the date of the final dissolution hearing. Based on the

       CCS entries for the November 2018 Decree, the trial court “d[id]n’t know if it

       [had been] properly distributed to counsel.” (Tr. Vol. 2 at 57). The trial judge

       stated, “If it wasn’t distributed out by the Clerk’s Office in November I don’t

       know why. And I apologize for that. I have no idea.” (Tr. Vol. 2 at 57). The




       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020          Page 7 of 13
       trial court added that there was “a new clerk now and things are going much

       better in this regard[.]” (Tr. Vol. 2 at 57).


[13]   Wife’s counsel asserted that, under Trial Rule 59, the clerk’s failure to send

       notice of the order did not matter because the order itself was noted on the CCS

       and Husband’s counsel had the responsibility to check the CCS and file his

       motion to correct error within thirty days of the order being noted on the CCS.

       The trial court seemed to agree, stating that “once that decree is put on the, in

       the RJO entry book, then that’s public record and if you didn’t receive a copy

       obviously that should have happened but it’s everyone’s responsibility I guess to

       continue looking at the case and see did the Judge issue a decree yet.” (Tr. Vol.

       2 at 58). Husband’s counsel again informed the trial court that he had

       “continually checked the CCS for [the] order and it did not appear.” (Tr. Vol. 2

       at 58).


[14]   Thereafter, on July 18, 2019, the trial court issued an order, finding that

       Husband had failed to timely file a motion to correct error and that “no good

       cause ha[d] been shown [that] would justify relief from the Trial Rules.” (App.

       Vol. 2 at 33). The trial court denied Husband’s request for leave to file a belated

       motion to correct error. The CCS contains an entry to show that the trial court




       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020        Page 8 of 13
       clerk sent electronic notice of this order to the parties’ named attorneys.3

       Husband now appeals.


                                                     Decision
[15]   Before we address Husband’s argument that the trial court abused its discretion

       by denying his motion for leave to file a belated motion to correct error

       pursuant to Trial Rule 72, we note that Wife did not file an Appellee’s brief.

       When an appellee fails to submit an appellate brief, “‘we need not undertake

       the burden of developing an argument on the [A]ppellee’s behalf.’” Front Row

       Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014) (quoting Trinity Homes, LLC

       v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). Rather, “‘we will reverse the trial

       court’s judgment if the appellant’s brief presents a case of prima facie error.’” Id.

       (quoting Trinity Homes, 848 N.E.2d at 1068). “Prima facie error in this context

       is defined as, at first sight, on first appearance, or on the face of it.” Id. (internal

       quotation marks and citation omitted).


[16]   Our supreme court has held that Indiana Trial Rule 72 is the “sole vehicle” for

       a party to obtain relief when seeking to extend a filing deadline based upon a

       claim of failure to receive notice of a final judgment. Collins v. Covenant Mut.

       Ins. Co., 644 N.E.2d 116, 117 (Ind. 1994). We review a trial court’s ruling

       concerning Trial Rule 72(E) for an abuse of discretion. Atkins v. Veolia Water




       3
        The CCS entry for this July 18, 2019 order contains the following note: “Notice ordered.” (App. Vol. 2 at
       7). The CCS also indicates that, on July 19, 2019, “Automated ENotice [was] Issued to [the] Parties” for the
       “Order Issued [on] 7/18/2019” to the two named attorneys for the parties. (App. Vol. 2 at 7).

       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020                              Page 9 of 13
       Indianapolis, LLC, 994 N.E.2d 1287, 1288 (Ind. Ct. App. 2013). An abuse of

       discretion occurs if the trial court’s ruling is clearly against the logic and effect

       of the facts and circumstances or when the trial court has misinterpreted the

       law. Id.


[17]   Trial Rule 72(D) imposes two duties on trial court clerks: (1) “[i]mmediately

       upon the notation in the Chronological Case Summary of a ruling upon a

       motion, an order or judgment, the clerk shall serve a copy of the entry in the

       manner provided for in Rule 5(B)[4] upon each party[;]” and (2) the clerk “shall

       make a record of such service.” Trial Rule 72(D). See also Collins, 644 N.E.2d

       at 117. The CCS constitutes that record. Collins, 644 N.E.2d at 117. See

       also Verta v. Pucci, 14 N.E.3d 749, 752 (Ind. Ct. App. 2014) (explaining that a

       trial court speaks through its CCS).


[18]   The “proper method” for challenging an order not served by a trial court is

       through Indiana Trial Rule 72(E). In re Sale of Real Prop. with Delinquent Taxes or

       Special Assessments, 822 N.E.2d 1063, 1069 (Ind. Ct. App. 2005), reh’g denied,

       trans. denied. Trial Rule 72(E) provides:


                  Lack of notice, or the lack of the actual receipt of a copy of the
                  entry from the Clerk shall not affect the time within which to
                  contest the ruling, order or judgment, or authorize the Court to
                  relieve a party of the failure to initiate proceedings to contest
                  such ruling, order or judgment, except as provided in this section.
                  When the service of a copy of the entry by the Clerk is not



       4
           Trial Rule 5(B) provides for service by personal delivery, by mail, or by fax or e-mail.


       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020                             Page 10 of 13
               evidenced by a note made by the Clerk upon the Chronological
               Case Summary, the Court, upon application for good cause
               shown, may grant an extension of any time limitation within
               which to contest such ruling, order or judgment to any party who
               was without actual knowledge, or who relied upon incorrect
               representations by Court personnel. Such extension shall
               commence when the party first obtained actual knowledge and
               not exceed the original time limitation.


       (Emphasis added). Trial Rule 72(E) applies where the CCS does not contain

       evidence that a copy of the trial court’s order was sent to each party. See

       Collins, 644 N.E.2d at 117-18 (explaining that “Trial Rule 72(E) plainly states

       that only if the CCS does not contain evidence that a copy of the court’s entry

       was sent to each party may a party claiming not to have received such notice

       petition the trial court for an extension of time to initiate an appeal”).


[19]   Here, the trial court held the final dissolution hearing on September 18, 2019

       and then issued the final dissolution order on November 8, 2019. Thereafter,

       the trial court clerk made the following entries regarding this November 2018

       Decree into the CCS:




       (App. Vol. 2 at 6). Under Trial Rule 72(D), the clerk, upon noting the decree in

       the CCS, had a duty to both “immediately” serve a copy of the decree on the

       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020           Page 11 of 13
       parties and “make a record of such service.” Here, it is undisputed that

       Husband did not receive notice of the November 2018 Decree. Indeed, Wife

       did not receive notice either. Additionally, the CCS contains no indication or

       record that the clerk served a copy—either by mail or electronically—of the

       November 2018 Decree. Indeed, a review of the remaining CCS reveals that,

       for other orders issued by the trial court, there is a clear record of the service of

       notice (usually “Automated ENotice”), including a listing of the order being

       served and the parties to whom the order was served. For the November 2018

       Decree, there is no such record. Indeed, the trial judge recognized as much

       during the hearing when he reviewed the CCS entries for the November 2018

       Decree, noting that he “d[id]n’t know if it [had been] properly distributed to

       counsel” and that he had “no idea.” (Tr. Vol. 2 at 57).


[20]   Because it is undisputed that Husband did not receive notice of the November

       2018 Decree and the CCS contains no record that the clerk had served notice of

       the decree to him, we conclude that the trial court abused its discretion by

       denying Husband’s request for leave to file a belated motion to correct error.

       See, e.g., In re Sale of Real Prop. with Delinquent Taxes or Special Assessments, 822

       N.E.2d at 1069 (explaining that, pursuant to Trial Rule 72(E), a party was

       entitled to an extension of time to file a motion to correct error where the party

       did not receive notice of an order and the CCS did not contain evidence that the

       clerk had mailed the order). See also Markle v. Ind. State Teachers Ass’n, 514

       N.E.2d 612 (Ind.1987) (holding that a CCS entry with a handwritten notation

       listing of three attorneys involved in litigation was not sufficient to show that


       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020            Page 12 of 13
       both orders were mailed because it did not specifically relate what was

       mailed), reh’g denied; Verta, 14 N.E.3d at 752 (remanding the case to the trial

       court for further proceedings where the CCS contained no indication that the

       party had been served with an order). Cf. Collins, 644 N.E.2d at 118 (denying

       requested relief because the CCS contained the clerk’s notation showing that

       the trial court’s order was mailed to the parties). Because Husband has made a

       prima facie showing of error, we reverse the trial court’s order denying

       Husband’s motion for leave to file a belated motion to correct error to challenge

       the final dissolution decree and remand to the trial court with instructions to

       allow Husband to file a motion to correct error within thirty days of this

       opinion being certified.


[21]   Reversed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-DN-1918 | April 29, 2020        Page 13 of 13
