                                                             FILED
                                                         Jul 29 2016, 8:44 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




      APPELLANT PRO SE                                              ATTORNEYS FOR APPELLEE
      Chawknee P. Caruthers                                         Gregory F. Zoeller
      Wabash Valley Correctional Facility                           Attorney General of Indiana
      Carlisle, Indiana
                                                                    Monika Prekopa Talbot
                                                                    Deputy Attorney General
                                                                    Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Chawknee P. Caruthers,                                        July 29, 2016
      Appellant-Petitioner,                                         Court of Appeals Case No.
                                                                    46A04-1512-PC-2194
              v.                                                    Appeal from the LaPorte Circuit
                                                                    Court
      State of Indiana,                                             The Honorable Thomas Alevizos,
      Appellee-Respondent.                                          Judge
                                                                    Trial Court Cause No.
                                                                    46C01-1008-PC-197



      Crone, Judge.



                                         Statement of the Case
[1]   Chawknee P. Caruthers appeals the postconviction court’s summary dismissal

      of his petition for postconviction relief (“PCR”). Caruthers argues that the

      postconviction court erred when it summarily dismissed his PCR petition for
      Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                    Page 1 of 14
      failure to prosecute without first holding a hearing. We agree that pursuant to

      Indiana Trial Rule 41(E), the trial court was required to hold a hearing before

      dismissing his petition. Therefore, we reverse the dismissal of Caruthers’s PCR

      petition and remand for further proceedings.


                                  Facts and Procedural History
[2]   On August 1, 2008, a jury found Caruthers guilty of murder and found him to

      be a habitual offender. In May 2010, our supreme court affirmed his conviction

      and habitual offender finding on direct appeal. Caruthers v. State, 926 N.E.2d

      1016 (Ind. 2010).


[3]   On August 27, 2010, Caruthers filed a pro se PCR petition. The State filed an

      answer and appearance form. In September 2010, a public defender filed an

      appearance on Caruthers’s behalf, and in July 2013, she withdrew her

      appearance. Caruthers did not take any further action to prosecute his case, the

      State did not move to dismiss it, and the postconviction court did not schedule

      a hearing on Caruthers’s petition.


[4]   On March 19, 2015, the postconviction court issued an order to close the case,

      which provided as follows:

              The Court, on its own Motion, moves to close the above
              captioned case. The Court has set a status hearing … for the 8th
              day of May, 2015, at 3:00 p.m. ….


              The purpose of this hearing is for the parties/attorneys herein to
              advise the Court as to the status of this case and to show cause
              why this case should not be closed.
      Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016     Page 2 of 14
               The above case shall be closed on the 8th day of May 2015,
               unless an objection to closing is granted.


      Appellant’s App. at 19.


[5]   On April 6, 2015, Caruthers filed two motions: one for production of

      documents and one for transcript of partial trial proceedings. On April 13,

      2015, the postconviction court issued an “Order Clarifying Status,” in which it

      stated that the case was subject to a May 8, 2015 hearing to dismiss pursuant to

      Trial Rule 41(E) and that the court would reserve Caruthers’s pending motions

      for the production of documents and for transcript of partial trial proceedings

      pending the outcome of the May 8, 2015 hearing. Id. at 34. The order also

      advised Caruthers that the Public Defender’s Office should have the documents

      he sought and that he was not precluded from requesting the Public Defender’s

      Office to provide him with copies of the documents.


[6]   On April 20, 2015, Caruthers filed a motion/notice of case status “to show

      cause why [the postconviction court] should not close this case,” 1 in which he

      stated that (1) because the issues were complex and he is unskilled in the law,

      he had been familiarizing himself with the postconviction rules for the past year

      and a half; (2) he was in no way attempting to gain an advantage by stalling the

      proceedings and due to his lack of skill needed time to investigate and research



      1
        The motion/notice was entered in the chronological case summary on May 4, 2015. See Ind. Trial Rule
      77(B) (“Notation of judicial events in the Chronological Case Summary shall be made promptly, and shall set
      forth the date of the event and briefly define any documents, orders, rulings, or judgments filed or entered in
      the case.”).

      Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                          Page 3 of 14
      in order to prosecute his case; (3) he intended to file an amended PCR petition;

      (4) he understood the importance of this matter and his responsibility of

      proceeding pro se; and (5) he brought the motion in good faith with the belief

      that he had meritorious claims, and for the aforementioned reasons the case

      should not be closed Id. at 2, 27-29. Caruthers specifically requested the court

      to not close his case. On April 27, 2015, Caruthers filed a motion for the

      postconviction court to hold an evidentiary hearing on his PCR petition, and he

      requested a transport order to attend the hearing. The postconviction court did

      not rule on these motions.


[7]   On May 8, 2015, the postconviction court issued an order dismissing

      Caruthers’s PCR petition along with 106 other cases for failure to prosecute

      pursuant to Trial Rule 41(E). Although the court’s March 19, 2015, order

      stated that it would hold a hearing, the chronological case summary (“CCS”)

      does not show that the court in fact held that hearing before it dismissed

      Caruthers’s petition. 2 This appeal ensued.


                                        Discussion and Decision
[8]   Caruthers argues that the postconviction court erred in dismissing his PCR

      petition pursuant to Indiana Trial Rule 41(E) without holding a hearing prior to



      2
        The State does not contend that the postconviction court actually held a hearing but suggests that because
      of the large number of cases that were dismissed that day, “it is more than possible that some notations did
      not make [it] into the CCS on some cases.” Appellee’s Br. at 11. The CCS is the “official record of the trial
      court,” Indiana Trial Rule 77(B), and it is well settled that “a trial court speaks through its docket.” Young v.
      State, 765 N.E.2d 673, 678 n. 6 (Ind. Ct. App. 2002). We will not assume that a hearing was held when it
      was not entered into the CCS.

      Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                             Page 4 of 14
       dismissal. We will reverse a Trial Rule 41(E) dismissal for failure to prosecute

       “only for a clear abuse of discretion.” Robertson v. State, 687 N.E.2d 223, 224

       (Ind. Ct. App. 1997), trans. denied, (1998). “An abuse of discretion occurs if the

       decision of the trial court is against the logic and effect of the facts and

       circumstances before it.” Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes

       Indiana, LLP, 929 N.E.2d 853, 856 (Ind. Ct. App. 2010).


[9]    Indiana Trial Rule 41(E) provides,

                Whenever there has been a failure to comply with these rules or
                when no action has been taken in a civil case[ 3] for a period of
                sixty [60] days, the court, on motion of a party or on its own motion
                shall order a hearing for the purpose of dismissing such case. The court
                shall enter an order of dismissal at plaintiff’s costs if the plaintiff shall not
                show sufficient cause at or before such hearing. Dismissal may be
                withheld or reinstatement of dismissal may be made subject to
                the condition that the plaintiff comply with these rules and
                diligently prosecute the action and upon such terms that the court
                in its discretion determines to be necessary to assure such diligent
                prosecution.


       (Emphasis added.)


[10]   The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently

       pursue their claims’” and to provide “‘an enforcement mechanism whereby a

       defendant, or the court, can force a recalcitrant plaintiff to push his case to




       3
          “Post-conviction proceedings are governed by the same rules ‘applicable in civil proceedings including pre-
       trial and discovery procedures.’” Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013) (quoting Post-Conviction
       Rule 1(5)).

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                         Page 5 of 14
       resolution.’” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003)

       (quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993)), trans.

       denied. “‘The burden of moving the litigation is upon the plaintiff, not the

       court. It is not the duty of the trial court to contact counsel and urge or require

       him to go to trial, even though it would be within the court’s power to do so.’”

       Id. (quoting Benton, 622 N.E.2d at 1006). “‘Courts cannot be asked to carry

       cases on their dockets indefinitely and the rights of the adverse party should

       also be considered. [The adverse party] should not be left with a lawsuit

       hanging over his [or her] head indefinitely.’” Id. (quoting Hill v. Duckworth, 679

       N.E.2d 938, 939-40 (Ind. Ct. App. 1997)). “Although Indiana does not require

       trial courts to impose lesser sanctions before applying the ultimate sanctions of

       default judgment or dismissal, we view dismissals with disfavor, and dismissals

       are considered extreme remedies that should be granted only under limited

       circumstances.” Am. Family Ins., 929 N.E.2d at 857.


[11]   Caruthers argues that Trial Rule 41(E) requires a court to hold a hearing prior

       to dismissing a case for failure to prosecute. We agree, based on our supreme

       court’s decision in Rumfelt v. Himes, 438 N.E.2d 980 (Ind. 1982). In that case,

       the Rumfelts filed a nuisance claim against multiple defendants. The

       defendants filed a motion to dismiss for failure to comply with rules pursuant to

       Trial Rule 41(E). The trial court ordered the Rumfelts to show cause, in

       writing, why the motion to dismiss should not be granted. The order specifically

       stated,




       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016   Page 6 of 14
               Unless adequate cause is shown pursuant to the foregoing order,
               the Court will enter an order of dismissal of this action
               immediately after July 25. If, however, some cause is shown
               upon which the Court desires hearing whether argumentative or
               evidentiary, the Court will then set the matter for hearing.


       Id. at 982. The Rumfelts filed a response to the court’s order, averring that they

       had complied with the court’s rules and setting forth reasons why the case

       should not be dismissed. However, without holding a hearing, the trial court

       granted the defendants’ motion and dismissed the case.


[12]   On appeal, the Rumfelts argued that the trial court erred in ruling on the

       defendants’ motion to dismiss without ordering a hearing as required by Rule

       41(E). The defendants contended that the Rumfelts’ failure to object waived

       any right to a hearing and that “no prejudice was demonstrated because [the

       Rumfelts] responded in writing to the trial court’s show cause order.” Id. (emphasis

       added). Our supreme court rejected the defendants’ argument, observing that

       “[t]he language of Trial Rule 41(E) is explicit: ‘the court, on motion of a party

       or on its own motion shall order a hearing for the purpose of dismissing such

       case.’” Id. at 983. The court explained, “‘If the failure to obey the clear,

       explicit dictates of the Indiana Rules of Procedure can be simply dismissed as

       harmless error, then, the erosion of an orderly judicial system has begun.’” Id.

       (quoting Otte v. Tessman, 426 N.E.2d 660, 662 (Ind. 1981)). The Rumfelt court

       then discussed the conflict between the hearing requirement of Trial Rule 41(E)

       and the provision of Trial Rule 73 allowing the trial court to direct the

       submission and determination of motions without holding an oral hearing. The

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016      Page 7 of 14
       Rumfelt court noted that a specific rule controls over a general one on the same

       subject matter and concluded, “Trial Rule 41(E) clearly requires a hearing on a

       motion to dismiss which controls over Trial Rule 73 allowing the trial court to

       expedite its business by directing the submission and determination of motions

       without oral hearing.” Id. at 983-84. The Rumfelt court therefore concluded

       that the trial court had not satisfied the requirements of Trial Rule 41(E),

       reversed the trial court’s dismissal, and remanded with instructions to order a

       hearing on the defendants’ motion to dismiss in accordance with Trial Rule

       41(E).


[13]   Justice Prentice, with Justice DeBruler concurring, issued a dissent in Rumfelt,

       in which he specifically disagreed that Trial Rule 41(E) required a trial court to

       hold a hearing. In his view,


                The rule does not require that a hearing be held in open court. It
                requires the judge to order a hearing for the purpose of dismissing
                the case and mandates a dismissal, absent a showing of sufficient
                cause as to why it should not, at or before the hearing. The
                appellees submitted pleadings in opposition to the trial court’s
                proposed action and Defendants’ motion to dismiss. The use of
                the word “before” in the rule contemplates that the trial court
                will or can dismiss the cause, based upon the submissions of the
                parties, and without a hearing or oral argument in open court.


       Id. at 984 (Prentice, J., dissenting). His dissent demonstrates that the Rumfelt

       majority interpreted Trial Rule 41(E) to require that the trial court hold a

       hearing and not merely schedule a hearing. See also Baker & Daniels, LLP v.

       Coachmen Indus., Inc., 924 N.E.2d 130, 138 n.8 (Ind. Ct. App. 2010) (“Although

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016   Page 8 of 14
       the plain language of Rule 41(E) requires that the trial court order a hearing,

       which the trial court did in this case, the majority decision in Rumfelt interprets

       this language to require the trial court to hold a hearing. This interpretation is

       emphasized by the Rumfelt dissent’s disagreement with that interpretation.”)

       (citing Rumfelt, 438 N.E.2d at 984), trans. denied.


[14]   Rumfelt was cited with approval in Wright v. Miller, 989 N.E.2d 324 (Ind. 2013),

       wherein our supreme court stated,


               We note that the trial court did not order or hold a hearing to
               dismiss as required by Trial Rule 41(E). See Rumfelt, 438 N.E.2d
               at 984. Although the absence of a hearing is not determinative in
               this case, in light of the gravity of the sanction of dismissal, we
               believe that the hearing required by Trial Rule 41(E) should
               henceforth likewise be held when a case dismissal is sought or
               contemplated under Trial Rule 37.


       Id. at 328 n.3 (emphases added). Also, this Court has recognized that Trial

       Rule 41(E) requires the trial court to hold a hearing prior to dismissal. See

       Somerville Auto Transp. Serv., Inc. v. Auto. Fin. Corp., 12 N.E.3d 955, 961-63 (Ind.

       Ct. App. 2014) (holding that Trial Rule 41(E) hearing requirement was not

       satisfied where parties appeared by counsel for hearing but trial court did not

       hear their arguments and that trial court was required to hold hearing prior to

       dismissing case), trans. denied, and cases cited therein. 4




       4
         Somerville involved the defendants’ appeal of the trial court’s grant of the plaintiff’s motion for
       reinstatement following the Trial Rule 41(E) dismissal of the plaintiff’s case and summary judgment in the
       plaintiff’s favor. Although Somerville is procedurally different from this case, the issue underlying the

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                         Page 9 of 14
[15]   However, in Metcalf v. Estate of Hastings, 726 N.E.2d 372 (Ind. Ct. App. 2000),

       trans. denied, the majority stated that “when the court orders a hearing and

       notice of the hearing date is sent to the plaintiff, the hearing requirement of

       T.R. 41(E) is satisfied, regardless of whether the plaintiff or his counsel attends

       the hearing.” 5 Id. at 374. We believe that this statement conflicts with Rumfelt.

       In fact, it is arguably overbroad even when applied solely to the specific

       circumstances of that case. Metcalf brought a personal injury action against the

       Estate of Hastings. The Estate moved to dismiss pursuant to Trial Rule 41(E)

       for failure to prosecute. Metcalf requested a pretrial conference. The trial court

       scheduled a conference and hearing on the 41(E) motion. After a series of

       continuances granted to both sides, the trial court agreed to conduct the hearing

       on the motion to dismiss by telephone. The telephone conference was initiated

       at 1:00 p.m. on the scheduled date, but Metcalf’s counsel was unable to reach a

       telephone until 1:30 p.m. By that time, the trial judge was unavailable to

       participate in the conference call. Metcalf made no attempt to reschedule the

       hearing. Sixty days after the date of the scheduled telephone conference, the

       trial court granted the Estate’s Trial Rule 41(E) motion to dismiss.




       reinstatement of the plaintiff’s action in Somerville–whether dismissal without holding a hearing was in
       compliance with Trial Rule 41(E)–is the same.
       5
         The denial of transfer does not mean that our supreme court agrees with the Court of Appeals’ decision.
       See Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 481 n.7 (Ind. 1999) (“Because of various factors
       including the burden of other pending cases, particularly criminal cases for which this Court has exclusive
       constitutional responsibility, the denial of transfer does not necessarily reflect Supreme Court approval of
       decisions of the Court of Appeals in which transfer is sought.”); Ind. Appellate Rule 58(B) (“The denial of a
       Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the
       Supreme Court.”).

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                            Page 10 of 14
[16]   On appeal, Metcalf argued that the trial court abused its discretion by granting

       the Trial Rule 41(E) motion to dismiss without holding a hearing. The Metcalf

       majority upheld the dismissal of the case with the following analysis:

               The plain language of T.R. 41(E) requires the trial court to order
               a hearing once a party has moved to dismiss a case for failure to
               prosecute. See Rumfelt[, 438 N.E.2d at 983]. However, when the
               court orders a hearing and notice of the hearing date is sent to the
               plaintiff, the hearing requirement of T.R. 41(E) is satisfied,
               regardless of whether the plaintiff or his counsel attends the
               hearing. Lake County Trust v. Highland Plan Com’n, 674 N.E.2d
               626, 629 (Ind. Ct. App. 1996), trans. denied [(1997)].


               Here, the court ordered a hearing on the Estate’s T.R. 41(E)
               motion, and Metcalf received notice of that scheduled hearing
               date. Metcalf’s attorney made arrangements to hold the hearing
               by telephone. However, he was unable to take part in the
               telephone conference at the time that had been arranged. Despite
               the attorney’s failure to participate in the hearing, he made no effort
               to reschedule the hearing. After sixty days had passed following the
               date of the scheduled telephone hearing, the trial court entered an
               order granting the Estate’s motion to dismiss.


               Metcalf argues that the trial court erred by ruling on the Estate’s
               motion without holding a hearing. However, the trial court
               ordered a hearing on the T.R. 41(E) motion to dismiss and
               Metcalf had an opportunity to respond; this was sufficient to satisfy
               the hearing requirement of T.R. 41(E). See Lake County, 674
               N.E.2d at 629. Therefore, we hold that the trial court did not err
               by dismissing the case without holding an adversarial hearing.




       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016    Page 11 of 14
       Id. (emphases added). 6


[17]   In concluding that the trial court did not abuse its discretion in dismissing

       Metcalf’s action, it is significant that the Metcalf court considered more than the

       trial court’s simple action of scheduling a hearing and providing notice thereof

       to the plaintiff. The Metcalf court also considered that Metcalf had an

       opportunity to respond to the motion to dismiss at the teleconference. In other

       words, the trial court was prepared to hold the telephone conference and would

       have heard Metcalf’s argument had his counsel been present. Simply put, the

       trial court attempted to hold a hearing. Also, the Metcalf court noted that

       Metcalf made no attempt to reschedule the hearing even though the trial court

       waited sixty days before it granted the motion to dismiss.


[18]   Judge Sullivan dissented in Metcalf, opining that Trial Rule 41(E) “clearly

       contemplate[s] that a hearing not only be scheduled, but that it be conducted

       unless, and only unless the plaintiff has, prior to the hearing, been afforded

       opportunity to demonstrate sufficient good cause for the delay and has in fact

       done so.” Id. at 374-75 (Sullivan, J. dissenting). We believe that Judge

       Sullivan’s dissent is not only a correct reading of the rule but is also consistent

       with Rumfelt, which we are bound to follow as controlling supreme court



       6
          We disagree with the Metcalf majority that Lake County, 674 N.E.2d 626, stands for the proposition that the
       trial court satisfies the hearing requirement of Trial Rule 41(E) by ordering a hearing and providing notice of
       the hearing to the plaintiff regardless of whether the plaintiff or his or her counsel attends the hearing. Lake
       County addressed whether a judgment of dismissal was void for lack of notice; it did not actually consider the
       hearing requirement of Trial Rule 41(E). The Lake County court concluded that “the docket entry specifically
       state[d] that notice was ordered to the attorney of record” and held that the “order of dismissal [was] not void
       for lack of notice.” Id. at 629.

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                          Page 12 of 14
       precedent. See Minor v. State, 36 N.E.3d 1065, 1074 (Ind. Ct. App. 2015)

       (“‘[W]e are bound to follow the precedent of our supreme court.’”) (quoting

       Smith v. State, 777 N.E.2d 32, 38 n.2 (Ind. Ct. App. 2002), trans. denied (2003)),

       trans. denied.


[19]   Here, after the postconviction court issued its March 19, 2015 order to close the

       case and set a status hearing for May 8, Caruthers filed motions for production

       of documents and for transcript of partial trial proceedings, which the trial court

       held in abeyance pending the May 8 hearing. Then, Caruthers responded

       directly to the March 19, 2015 order with his April 20, 2015 motion/notice of

       case status to show cause why the case should not be closed. Trial Rule 41(E)

       does not require the plaintiff to wait until the scheduled hearing to show cause

       but clearly anticipates that a plaintiff may show cause at or before the hearing.

       The trial court did not rule on his April 20, 2015 motion to show cause.

       Caruthers also filed a motion for evidentiary hearing and a request for transport

       order, which the trial court did not rule on. There were multiple mechanisms

       that were available to the court to address Caruthers’s motions, such as

       arranging a telephone conference or directing Caruthers to submit his case by

       affidavit. However, the trial court dismissed his action without holding a

       hearing as required by Trial Rule 41(E). 7 See Rumfelt, 438 N.E.2d at 983.

       Accordingly, we reverse the postconviction court’s summary dismissal of



       7
         Although there may be circumstances where a trial court’s dismissal of an action without first holding a
       hearing will not constitute reversible error, in this case strict compliance with Trial Rule 41(E)’s hearing
       requirement is warranted.

       Court of Appeals of Indiana | Opinion 46A04-1512-PC-2194 | July 29, 2016                          Page 13 of 14
       Caruthers’s PCR action and remand for either a Trial Rule 41(E) hearing or

       reinstatement of his action.


[20]   Reversed and remanded.


       Najam, J., and Robb, J., concur.




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