MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Nov 08 2019, 6:17 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Amy P. Gutierrez                                        Jason M. Kuchmay
Fort Wayne, Indiana                                     Fort Wayne, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Amy P. Gutierrez,                                       November 8, 2019
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        19A-EU-667
        v.                                              Appeal from the Allen Superior
                                                        Court
The Estate of Geoffrey S. Riske,                        The Honorable Craig J. Bobay,
et al.,                                                 Judge
Appellees-Petitioners                                   The Honorable Phillip E. Houk,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        02D02-1708-EU-369



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019              Page 1 of 21
[1]   Belinda Romine is the personal representative of the Estate of Geoffrey Riske

      (the Estate). After opening the Estate, Romine filed a petition for recovery of

      estate property, seeking to recover real and personal property that Romine

      contended was being improperly withheld from the Estate by Amy Gutierrez,

      one of Riske’s adult children. Gutierrez disregarded her discovery obligations,

      failed to timely and fully comply with a subsequent order to compel discovery

      responses, and did not timely file her witness and exhibit list. As a result, the

      trial court entered an order precluding Gutierrez from presenting witnesses or

      exhibits at trial and recognized, at the evidentiary hearing, that Romine’s

      requests for admission, which were served upon Gutierrez and untimely

      responded to, were deemed admitted. A brief evidentiary hearing then

      occurred regarding certain personal property not covered by the admissions.


[2]   After the evidentiary hearing, the trial court granted the Estate’s petition to

      recover estate property with respect to both real and personal property. The

      court, thereafter, denied multiple motions to correct error filed by Gutierrez. In

      her pro-se appeal, Gutierrez presents six issues that we consolidate and restate

      as the following three issues:


              1.      Did the trial court properly determine that the matters
                      covered in the request for admissions were deemed
                      admitted by operation of law and, thus, conclusively
                      established for purposes of trial?


              2.      Did the trial court abuse its discretion by precluding
                      Gutierrez from presenting witnesses and exhibits at trial as
                      a discovery sanction?

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 2 of 21
              3.       Did the trial court abuse its discretion by denying
                       Gutierrez’s motions to correct error?


[3]   We affirm.


                                        Facts & Procedural History


[4]   Romine was Riske’s companion for over twenty years leading up to his death

      from metastatic laryngeal cancer on July 29, 2017. 1 They had lived together for

      about the last eight years in Riske’s home located on Huestis Avenue in Fort

      Wayne (the Real Estate). Romine owned another residence across the street

      from the Real Estate.


[5]   On August 7, 2017, Gutierrez recorded a quit-claim deed, pursuant to which

      the Real Estate was purportedly transferred from Riske to Gutierrez on July 7,

      2013 (the Quit-Claim Deed). Gutierrez then had Romine removed from the

      Real Estate with the assistance of police officers. Over the next several days,

      Romine watched and video recorded as Gutierrez and others removed personal

      property from the Real Estate that had been acquired by Riske and Romine

      either jointly or separately over the years.




      1
       Although his diagnosis was terminal, Riske underwent chemotherapy in September and October 2016. He
      was admitted to the hospital from October 19 to October 23, 2016, via the emergency department, and was
      discharged, upon his own insistence, the day after a feeding tube had been placed. Riske was given only a
      period of months to live.

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019               Page 3 of 21
[6]   Romine filed two petitions with the trial court on August 15, 2017, one to

      probate a will executed by Riske in May 2017 (the Will) 2 and another for

      appointment of herself as personal representative of the Estate. The trial court

      admitted the Will to probate the following day and appointed Romine as

      personal representative. Under the Will, the Real Estate and much of Riske’s

      personal property was bequeathed to Romine.


[7]   On August 21, 2017, Romine, as personal representative of the Estate, filed a

      petition for recovery of estate property (the Recovery Petition). Romine alleged

      that the Quit-Claim Deed filed by Gutierrez was fraudulent on its face and

      recorded to circumvent the probate proceedings. She asked that the Quit-Claim

      Deed be set aside and the Real Estate returned to the Estate. As evidence of

      fraud, Romine observed in the Recovery Petition that the Quit-Claim Deed was

      purportedly executed on July 7, 2013, but that the notary public stamp

      indicated a commission expiration date of January 20, 2024. 3 The term of a

      notary public’s commission is eight years. Ind. Code § 33-42-12-1 (formerly

      I.C. § 33-42-2-1(b)). Thus, as Romine observed, it was not possible for the Quit-

      Claim Deed to have been notarized in 2013 by a notary public whose

      commission was set to expire in 2024. Romine also alleged in the Recovery




      2
          The Will’s precise date of execution is indecipherable, but the month and year are clear.
      3
       The Quit-Claim Deed indicates that it was prepared by attorney Harry W. Foster III (Attorney Foster) and
      notarized by his wife, Linda Sue Foster (Notary Foster). Notary Foster’s current commission as a notary
      public began on January 21, 2016 and expires on January 20, 2024. She had a prior commission from
      December 18, 2007 to December 17, 2015.

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                 Page 4 of 21
      Petition that she had personally witnessed the removal from the Real Estate of

      personal property belonging to the Estate and that Gutierrez was withholding

      motorcycles titled in Romine’s name.


[8]   Gutierrez obtained counsel, Kingsley G. Regnier, on September 11, 2017, 4 and

      a status conference was held on October 2, 2017, after which the parties were

      ordered to mediate the dispute over ownership of the Real Estate. With respect

      to the personal property, Gutierrez agreed to provide a complete list of items

      that had been removed from the garage by October 20, 2017, and to allow

      Romine, on October 21, 2017, along with her counsel, to enter the Real Estate

      to make an inventory of the personal property therein. The parties also agreed

      that three motorcycles that were in the garage and belonged to Romine were to

      be returned to her. Romine, as personal representative of the Estate, agreed to

      sign the title to another motorcycle over to Riske’s son, pursuant to the terms of

      the Will. Finally, one of Riske’s other daughters agreed to transfer possession

      of a curio cabinet to Romine, as personal representative of the Estate. The trial

      court’s order, issued October 2, 2017, memorialized each of these agreements.


[9]   The parties failed to mediate the dispute regarding the Real Estate, and no

      activity is noted on the CCS again until February 2018, when Regnier moved to




      4
       Riske’s three other children also obtained counsel to jointly represent their interests. They do not
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                    Page 5 of 21
       withdraw his appearance, which was granted. The following month, one or

       more attorneys withdrew from representing other parties.


[10]   On July 17, 2018, new counsel for the Estate entered an appearance and sought

       to move along the stagnant proceedings with a motion for a case management

       conference, which was held on August 21, 2018. While it does not appear that

       Gutierrez, who was unrepresented at the time, received notice of the hearing,

       she was noticed with the resulting order that was issued the same day and

       provided in relevant part:


               Scheduling Conference is conducted as to the pending [Recovery
               Petition]. The Court hereby sets trial on this matter for January
               15, 2019 at 9:30 a.m. and a Pre-Trial Conference for January 8,
               2019 at 9:30 a.m. Failure to appear for the Pre-Trial Conference
               may result in a default judgment. Discovery in this matter is to
               be concluded on or before December 18, 2018. Witness and
               Exhibit Lists are to be filed and exchanged on or before January
               7, 2019.


       Appellant’s Appendix Vol. II at 63 (emphasis in original).


[11]   Romine deposed Attorney Foster, Notary Foster, and Gutierrez in September

       and, on November 8, 2018, served Gutierrez with written discovery requests,

       including interrogatories, request for production of documents, and request for

       admissions. When Gutierrez did not respond within thirty days, Romine, by

       counsel, sent a letter to Gutierrez on December 17, 2018, demanding full and

       complete responses to the interrogatories and request for production of

       documents within five days or Romine would file a motion to compel.


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 6 of 21
       Included within the correspondence were copies of these requests. The request

       for admissions was not included or referenced in the correspondence because

       the admissions had already been admitted by operation of law.


[12]   Also, on December 17, 2018, Romine filed with the trial court, and served upon

       Gutierrez, a motion for unilateral extension of the discovery deadline from

       December 18, 2018, to January 14, 2019. Romine noted Gutierrez’s failure to

       respond to the interrogatories and request for production of documents and

       indicated that an extension of the discovery deadline would allow Romine time

       for receipt of the outstanding discovery responses, to file a motion to compel if

       needed, and to take any necessary depositions after responses are received. The

       trial court granted the extension for Romine only.


[13]   On January 4, 2019, Romine filed a motion to compel, indicating that

       “Gutierrez had failed to provide any response to the discovery requests

       whatsoever.” Id. at 91. That same day, the trial court issued an order granting

       the motion to compel, which provided in relevant part:


               Gutierrez must provide to counsel for Romine, full and complete
               responses to the Interrogatories and Request for Production of
               Documents originally served upon her November 8, 2018….
               The full and complete responses must be produced so that they
               are received by counsel for Romine within five (5) days from the
               date of this Order.


               It is FURTHER ORDERED, ADJUDGED AND DECREED
               that Romine shall be permitted to amend her Witness & Exhibit
               List, as appropriate, upon receipt of the outstanding discovery
               responses. Petitioner is to notify all interested parties.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 7 of 21
       Id. at 107 (emphasis in original).


[14]   Romine timely filed her witness and exhibit list on the January 7, 2019

       deadline. Gutierrez did not, but on that date, Attorney Foster entered an

       appearance on her behalf and appeared the next day at the scheduled pre-trial

       conference. In an order dated January 8, 2019, the trial court continued the

       scheduled trial to February 12, 2019, and extended the discovery deadline for

       Romine only to February 5, 2019, as Gutierrez had yet to comply with the

       order to compel. Additionally, the trial court noted in the order: “Attorney

       Harry Foster indicates his intention to withdraw his appearance due to a

       conflict.” 5 Id. at 118. The trial was continued the next day to February 21,

       2019, due to a scheduling conflict.


[15]   On January 14, 2019, Romine filed a motion for an order precluding Gutierrez

       from presenting witnesses or exhibits at trial and compelling responses to

       discovery requests (the Motion to Preclude). In support, Romine noted that

       Gutierrez had still not responded to discovery and did not file a witness and

       exhibit list as required, which prejudiced Romine’s ability to prepare for trial.

       Romine also observed that Attorney Foster had continued to represent

       Gutierrez despite a clear conflict of interest. Romine sought the following relief

       in her motion:




       5
           Attorney Foster and his wife, Notary Foster, were both material witnesses in the case.


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019              Page 8 of 21
               16. In light of Gutierrez’s disregard of the trial rules, her
               disregard of this Court’s motion to compel order, and Foster’s
               ongoing representation of Gutierrez, additional sanctions against
               Gutierrez are warranted.


               17. Romine submits that an appropriate sanction against
               Gutierrez would be an Order precluding her from presenting
               witnesses or exhibits at the upcoming trial, in addition to an
               award of attorney’s fees.


       Id. at 124. The trial court set the Motion to Preclude for hearing.


[16]   On January 15, 2019, Attorney Foster filed a motion to withdraw his

       appearance, and Gutierrez filed a pro-se appearance. That same day, Gutierrez

       filed a motion for leave to file a witness and exhibit list and a notice of

       compliance, indicating that she had just delivered discovery responses to

       Romine’s counsel. Romine filed a written objection to the motion for leave to

       file a witness and exhibit list, noting that it had been filed in the eleventh hour

       and that Gutierrez’s discovery responses did not include a single document that

       she referenced in her exhibit list and were deficient in other respects.


[17]   Attorney Nathan D. Hoggatt filed an appearance on behalf of Gutierrez on

       January 28, 2019, and represented her on February 6, 2019, at the hearing on

       the Motion to Preclude. After the hearing, the court issued an order granting

       the Motion to Preclude (the Preclusion Order), pursuant to which the court

       precluded Gutierrez from presenting witnesses or evidence at trial. The court

       also ordered her to comply with all pending discovery requests by February 15,

       2019, and the court took the matter of attorney’s fees under advisement.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 9 of 21
[18]   The trial on the Recovery Petition took place on February 21, 2019, at which

       Attorney Hoggatt represented Gutierrez. 6 Pursuant to the Preclusion Order,

       Gutierrez was not permitted to present witnesses or exhibits, but was allowed to

       testify on her own behalf. Additionally, at the start of trial, Romine asked that

       the request for admissions, to which Gutierrez had not timely responded, be

       deemed admitted and conclusively established by operation of law. The

       admissions included, among other things, that: 1) the Will was signed by Riske,

       was in effect at the time of his death, and represented his wishes; 2) the Quit-

       Claim Deed was not signed by Riske, but rather his signature was forged, and

       the fraudulent deed should be set aside and the Real Estate titled to Romine;

       and 3) a will purportedly executed by Riske on October 24, 2016, was forged

       and fraudulent. The admissions also included a list of personal property that

       Gutierrez took from the Real Estate after Riske’s death without right and

       knowing that Riske intended such property to go to Romine upon his death.


[19]   Based on the admissions, Romine requested a directed verdict on the issues

       covered by the admissions, particularly bringing the Real Estate back into the

       Estate. Gutierrez objected to the motion for a directed verdict and asked for

       reconsideration of the Preclusion Order to allow her to present evidence. The

       trial court denied the request to set aside the Preclusion Order and noted that

       “the record is pretty clear” that Gutierrez “had every opportunity” to respond



       6
         Attorney Hoggatt filed a motion to withdraw from representing Gutierrez on February 16, 2019. Gutierrez
       filed a strenuous objection to the motion to withdraw, and the trial court denied the motion on February 18,
       2019, noting that it had come to the court’s attention less than 72 hours before trial.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                Page 10 of 21
       to the discovery requests and that “her due process rights were represented[.]”

       Transcript at 15. The trial court also concluded that the matters addressed in the

       request for admissions were deemed admitted. The trial court then allowed

       evidence to “go forward [] on issues relating to some personal property that is

       not covered by [the] admission.” Id. at 19. Romine and Gutierrez testified

       briefly in this regard, and Gutierrez acknowledged taking personal property

       from the Real Estate and indicated a willingness to return some of this property

       to the Estate.


[20]   On February 25, 2019, the trial court issued its final order (the Final Order)

       regarding the Recovery Petition. The court terminated any right to title or

       possession of the Real Estate by Gutierrez and ordered her to, within ten days,

       execute a quit-claim deed delivering the Real Estate to the Estate and vacate the

       property. Upon receipt of the quit-claim deed, the court indicated that the

       personal representative may then administer the Real Estate according to the

       terms of the Will and transfer title to Romine. Additionally, the court ordered

       that certain personal property be returned to Romine personally and other

       property be returned to the Estate to be distributed according to the Will. The

       trial court expressly entered the Final Order as a final judgment pursuant to

       Ind. Trial Rule 54(B).




       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 11 of 21
[21]   The day the Final Order was issued, Gutierrez, now proceeding pro se, filed a

       motion to correct error (the First MTCE). 7 In the First MTCE, Gutierrez

       challenged the Preclusion Order and asked the trial court to “allow her to

       present witnesses and exhibits at the trial … to clearly show the Court how

       Belinda Romine is attempting to perpetrate a hoax upon the Court.” Appellant’s

       Appendix Vol. II at 166. The trial court summarily denied the First MTCE on

       February 27, 2019. Thereafter, on March 8, 2019, Gutierrez filed another

       MTCE (the Second MTCE) based on alleged newly discovered evidence. In

       the Second MTCE, Gutierrez claimed that Romine had perpetrated a fraud

       upon the court by concealing evidence. Gutierrez also challenged the validity

       of the Will based on undue influence and incapacity. The trial court denied the

       Second MTCE on March 13, 2019.


[22]   Gutierrez, pro se, brings this timely appeal of the Final Order and the denial of

       her First and Second MTCE. Additional information will be provided below as

       needed.


                                              Discussion & Decision


                                                    1. Admissions


[23]   Gutierrez challenges the trial court’s determination that her failure to timely

       respond to the request for admissions resulted in them being deemed admitted




       7
        Gutierrez also filed an “Alternative Verified Motion to Correct Errors,” the denial of which is not at issue
       on appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                  Page 12 of 21
       by operation of law. Her arguments regarding her self-styled “supposed

       admissions” are muddled and difficult to follow. Appellant’s Brief at 17.

       Gutierrez appears to argue that she made a motion to withdraw the admissions,

       which the trial court improperly denied because the admissions went to the

       heart of the case and their withdrawal would not have prejudiced Romine.


[24]   There is no dispute that Gutierrez did not timely respond to the request for

       admissions, as she filed her response more than two months after they were

       served upon her. Thus, pursuant to Ind. Trial Rule 36, the matters covered by

       the request for admissions were deemed admitted and conclusively established

       by operation of law. See In re Marriage of Perez, 7 N.E.3d 1009, 1011 (Ind. Ct.

       App. 2014) (“The failure to respond in a timely manner to a request for

       admissions causes those matters to be admitted and conclusively established by

       operation of law.”) (citing Corby v. Swank, 670 N.E.2d 1322, 1324 (Ind. Ct.

       App. 1996)). Once the admissions are obtained, the need to prove those facts at

       trial are eliminated, and the trial court may not disregard the admissions. See

       Corby, 670 N.E.2d at 1324. Further, the party obtaining the admissions is under

       no obligation to move to have them deemed established. Id.


[25]   T.R. 36(B) governs the withdrawal of admissions and provides in part:


               Any matter admitted under this rule is conclusively established
               unless the court on motion permits withdrawal or amendment of
               the admission. Subject to the provisions of Rule 16 governing
               amendment of a pre-trial order, the court may permit withdrawal
               or amendment when the presentation of the merits of the action
               will be subserved thereby and the party who obtained the

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 13 of 21
               admission fails to satisfy the court that withdrawal or
               amendment will prejudice him in maintaining his action or
               defense on the merits….


       The party seeking withdrawal has the burden of establishing that the

       presentation of the merits will be subserved by withdrawal, and the party who

       has obtained the admissions has the burden of demonstrating that it will be

       prejudiced if the trial court permits withdrawal. Corby, 670 N.E.2d at 1326.

       When ruling on a motion to withdraw admissions, the trial court exercises

       discretion, and we will reverse only for an abuse of that discretion.” Costello v.

       Zavodnik, 55 N.E.3d 348, 352 (Ind. Ct. App. 2016).


[26]   The two-part test for determining if withdrawal is appropriate under the

       circumstances is not self-executing. Corby, 670 N.E.2d at 1327. Rather, “the

       party who has been deemed to have admitted whatever was requested has the

       burden of making a motion for withdrawal.” Id. In Corby, the defendant

       objected at trial when the plaintiffs sought to introduce deemed admissions. He

       argued that his answers were only one day late and that the requests addressed

       matters that were not proper subjects for requests for admission because they

       reached issues that the plaintiffs were required to prove at trial. Id. at 1324.

       The trial court sustained the objection. We reversed on appeal, concluding that

       the defendant never moved to withdraw his admissions and, therefore, the trial

       court erred when it refused to enter the admissions into evidence and deem

       them conclusively determined. Id. at 1327.




       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 14 of 21
[27]   Similarly, in the case at hand, Gutierrez did not move the trial court to obtain

       relief from the effect of her admissions. Accordingly, the test under T.R. 36(B)

       was never implicated, and Romine was entitled at trial to have those admissions

       entered into evidence and deemed conclusively established. See Corby, 670

       N.E.2d at 1327. The trial court did not err in this regard.


                                            2. Preclusion Order


[28]   Gutierrez also challenges the Preclusion Order, which was entered as a

       discovery sanction. She contends that the trial court abused its discretion by

       imposing such an “excessively harsh punishment” that was particularly “unjust

       given [her] filing of a notice of compliance stating that she had provided the

       requested discovery responses.” Appellant’s Brief at 10.


[29]   “Trial courts ‘stand much closer than an appellate court to the currents of

       litigation pending before them,’ so they are better positioned to assess and

       manage discovery matters.” Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d

       745, 757 (Ind. 2018) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind.

       2012)). Accordingly, they have wide discretion regarding discovery sanctions,

       and their orders carry a strong presumption of correctness. Care Grp., 93

       N.E.3d at 757. “We will not overturn a decision absent clear error and

       resulting prejudice.” Id. (citing Ind. Trial Rule 61).


[30]   The opportunity to be heard in court is a litigant’s most precious right and

       should be sparingly denied, but disregard for trial court’s orders will not be

       condoned. Prime Mortg. USA, Inc. v. Nichols, 885 N.E.2d 628, 649 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 15 of 21
       App. 2008) (affirming entry of a default judgment as a discovery sanction).

       “[U]nder the appropriate facts a trial court may enter an outright dismissal or

       default judgment when a party failed to respond to discovery requests on time,

       the trial court granted an order to compel discovery, and the party violated the

       order to compel by failing to respond.” Whitaker, 960 N.E.2d at 116. “A court

       may sometimes do likewise when a delinquent party did respond but did so in

       an incomplete or misleading way.” Id. Ultimately, the only limitation on the

       trial court in determining an appropriate sanction is that the sanction be just.

       Prime Mortg., 885 N.E.2d at 649.


[31]   Here, Romine served Gutierrez with discovery requests on November 8, 2018.

       Gutierrez did not respond in any manner – not even after counsel’s letter to her

       on December 17, 2018, which was sent a day before the discovery deadline set

       by the trial court. As a result of Gutierrez’s wholesale noncompliance with

       discovery, Romine filed a motion to compel on January 4, 2019, which the trial

       court granted that same day, giving Gutierrez five days from the date of the order

       to comply fully and completely with the discovery requests. 8 At this point,

       Gutierrez had obtained counsel and counsel appeared on her behalf for a pre-

       trial conference on January 8, 2019, where Attorney Foster acknowledged the

       outstanding discovery requests but did not provide responses. The deadline for

       filing Gutierrez’s witness and exhibit list had also expired with no filing.




       8
           Gutierrez’s assertion that she had until January 21, 2019 to respond is without merit.


       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019              Page 16 of 21
[32]   In light of Gutierrez’s complete failure to respond to discovery or file a witness

       and exhibit list, Romine filed, on January 14, 2019, the Motion to Preclude,

       claiming resulting prejudice to Romine’s ability to prepare for the upcoming

       trial. Romine sought as a sanction for Gutierrez to be precluded from

       presenting witnesses and exhibits at trial.


[33]   The following day, Gutierrez, pro se, served Romine with responses to the

       outstanding discovery requests (that are not included in the record before us)

       and filed a motion for leave to file a witness and exhibit list with the trial court.

       She also filed a notice of compliance with the trial court. Romine disputed that

       Gutierrez had complied because “along with other deficiencies,” Gutierrez “did

       not produce a single document” that she had listed in her exhibit list. Appellee’s

       Appendix Vol. II at 3.


[34]   The trial court held a hearing on the Motion to Preclude on February 6, 2019,

       at which Attorney Hoggatt represented Gutierrez. Because Gutierrez has not

       provided us with a transcript of the hearing, we cannot know the arguments

       asserted by the parties. However, it appears from Gutierrez’s various filings,

       including her First MTCE, that she claimed she never received the August 2018

       scheduling order, the November 2018 discovery requests, or the December 2018

       demand letter. Gutierrez also claimed that she did not learn of the order

       compelling discovery responses until January 9, 2019. The trial court was not

       required to accept these self-serving factual claims. Moreover, as noted above,

       the record indicates that the belated discovery responses filed by Gutierrez were

       still incomplete at the time of the hearing.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 17 of 21
[35]   After the hearing, the trial court issued the Preclusion Order. Specifically, the

       court precluded Gutierrez from presenting witnesses or exhibits at the February

       21, 2019 trial. The court took the additional request for attorney’s fees under

       advisement and ordered Gutierrez to “comply with all pending discovery

       requests on or before February 15, 2019[,]” which signifies to us that Gutierrez

       had not yet provided full and complete discovery responses. Appellant’s

       Appendix Vol. II at 143.


[36]   We flatly reject Gutierrez’s suggestion on appeal that her violations were trivial

       or insubstantial and did not prejudice Romine. Under the circumstances, where

       Gutierrez ignored the reminder letter, violated the order to compel, 9 and then

       belatedly delivered incomplete responses, all while providing dubious excuses

       for her noncompliance, we find that the trial court acted within its wide range

       of discretion in sanctioning Gutierrez.


                                    3. Denial of First and Second MTCE


[37]   Finally, Gutierrez challenges the denial of her First and Second MTCE. We

       review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. See Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). “An abuse of




       9
        As our Supreme Court has observed, an order to compel discovery – even one that does not warn of
       possible future sanctions – “essentially g[ives a party] one last chance before opening the door to all manner
       of unpleasant sanctions under Indiana Trial Rule 37(B).” Whitaker, 960 N.E.2d at 116 n.5.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                   Page 18 of 21
       discretion occurs when the trial court's decision is clearly against the logic and

       effect of the facts and circumstances before it.” Id.


[38]   With respect to the First MTCE, which sought reversal of the Preclusion Order,

       Gutierrez argues that the trial court “should have realized that its discovery

       sanction was inappropriate, for all the reasons mentioned previously.”

       Appellant’s Brief at 16. Having already upheld the Preclusion Order, we need

       not reconsider it under the First MTCE.


[39]   Turning to the Second MTCE, we observe that Gutierrez used it as a vehicle to

       present new evidence and arguments to the trial court. This new evidence

       included, among other things, a real estate contract (recorded in 2007 – ten

       years before Riske’s death) that Gutierrez obtained from the recorder’s office on

       March 4, 2019 (less than two weeks after trial), some of Riske’s medical records

       from 2017, two expert affidavits obtained by Gutierrez on March 6, 2019, and a

       quit-claim deed that was nearly identical to the Quit-Claim Deed entered into

       evidence at the trial but with a different notary public stamp and recording date

       (October 2017 rather than August 2017). Based on this evidence, Gutierrez

       argued in the Second MTCE that Romine perpetrated fraud upon the court and

       concealed assets of the Estate and that the Will was executed under undue

       influence and when Riske was incompetent. On appeal, Gutierrez asserts the

       trial court erred by ignoring this evidence of breach of fiduciary duties,

       constructive fraud, incapacity, and undue influence.




       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019   Page 19 of 21
[40]   On the contrary, the record establishes that the trial court did not ignore any

       evidence that was properly before it, which included none of the evidence

       submitted in support of the Second MTCE.


                The Indiana Rules of Trial Procedure provide two related
                procedures for addressing material evidence that remains
                undiscovered until after trial. Trial Rule 59(A)(1) permits a party
                to file a motion to correct error to address “[n]ewly discovered
                material evidence, including alleged jury misconduct, capable of
                production within thirty (30) days of final judgment which, with
                reasonable diligence, could not have been discovered and
                produced at trial.” Similarly, and incorporating the requirements
                of Trial Rule 59(A)(1), Trial Rule 60(B)(2) permits a party to
                move for relief on grounds of “newly discovered evidence, which
                by due diligence could not have been discovered in time to move
                for a motion to correct errors under Rule 59.”


       Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). To

       the extent the evidence included in the Second MTCE was unknown to

       Gutierrez before trial, this was clearly due to her own lack of due diligence,

       which she exhibited throughout the life of the case, rather than the result of an

       actual inability to gather said evidence before trial. The trial court properly

       denied the Second MTCE. 10




       10
          Romine correctly observes that a challenge to the validity of the Will, whether based on incapacity or
       undue influence, must be made through a statutory will contest pursuant to Ind. Code § 29-1-7-17, which
       requires a will challenge to be filed in a separate cause of action in the same court within three months of the
       will being admitted to probate. See In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) (“An action
       to set aside the probate of an alleged will is purely statutory and can only be brought and successfully
       maintained in the manner and within the limitations prescribed by statute.”). There is no indication in the

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                   Page 20 of 21
[41]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       record that Gutierrez ever filed a will contest but doing so in a MTCE from a ruling on the Recovery Petition
       is clearly not proper.

       Court of Appeals of Indiana | Memorandum Decision 19A-EU-667 | November 8, 2019                 Page 21 of 21
