MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Mar 23 2018, 8:37 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         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                                         APPELLEE PRO SE
Annamalai Annamalai                                      Vishal Kalyani
Atlanta, Georgia                                         Coimbatore, Tamil Nadu, India



                                          IN THE
    COURT OF APPEALS OF INDIANA

Annamalai Annamalai,                                     March 23, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         84A01-1710-MI-2520
        v.                                               Appeal from the Vigo Superior
                                                         Court
Vishal Kalyani,                                          The Honorable Lakshmi Reddy,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         84D02-1704-MI-2768




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018            Page 1 of 8
                                             Case Summary
[1]   Annamalai Annamalai (“Annamalai”), a federal prisoner, filed a pro se

      complaint against Vishal Kalyani (“Kalyani”) alleging breach of contract.

      Without a hearing, the trial court dismissed the action sua sponte, concluding—

      among other things—that Annamalai had failed to serve Kalyani. Annamalai

      now appeals, pro se, presenting several issues, which we consolidate and restate

      as whether the trial court erred in dismissing the action.


[2]   We reverse and remand for a hearing.



                             Facts and Procedural History                                    1




[3]   On April 18, 2017, Annamalai—at that time incarcerated in Vigo County—

      initiated litigation against Kalyani. Annamalai’s pro se complaint alleged that

      Annamalai and Kalyani entered a contract that Kalyani subsequently breached.

      Annamalai sought an order compelling arbitration, in accordance with a term

      of the alleged agreement. At the time Annamalai filed his complaint, he filed a

      pauper’s affidavit, and requested that the court clerk serve Kalyani by mail.


[4]   The clerk attempted to serve Kalyani by mail at an address in Texas. Several

      weeks later, the court received a document—purportedly from Kalyani—in




      1
       This Court entered an order excusing Annamalai from preparing an appendix. We have discerned the
      pertinent facts and procedural history from our review of the trial court’s record as reflected on Odyssey. See
      Ind. Appellate Rule 27 (providing that the “Record on Appeal . . . consist[s] of the Clerk’s Record and all
      proceedings before the trial court . . . whether or not transcribed or transmitted to the Court on Appeal”).

      Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018               Page 2 of 8
      which Kalyani seemingly acknowledged receipt of the summons and complaint.

      This purported acknowledgment led to a docket entry indicating that Kalyani

      had been served. However, the following week, the mailing originally sent to

      Kalyani was returned to the clerk’s office, marked unclaimed. This resulted in

      a conflicting docket entry indicating that Kalyani had not been served.

      Meanwhile, Annamalai filed a request under Trial Rule 68 asking the clerk to

      enter a consent judgment, based upon a purported agreement between the

      parties. The clerk did not enter the judgment. Thereafter, the trial court

      entered an order declining to set any hearing until Kalyani had been served.

      Later, a filing was purportedly made by Kalyani, pro se, acknowledging receipt

      of the summons and complaint, and seeking entry of a consent judgment.


[5]   Eventually, the case was transferred to a different judge so the court could

      consolidate Annamalai’s pending cases. Without holding a hearing, the trial

      court dismissed the instant action on September 27, 2017. In its order of

      dismissal, the trial court stated that it “lacks personal jurisdiction over the

      defendant, lacks subject matter jurisdiction, cannot provide Mr. Annamalai the

      relief he is requesting, and the Court believes that he is seeking to relitigate

      issues over complicated matters that have been addressed by courts in Georgia

      or on appeal with the 11th Circuit.” Order of Dismissal at 3 (Sep. 27, 2017).


[6]   Annamalai now appeals.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018   Page 3 of 8
                                        Standard of Review
[7]   At the outset, we observe that the trial court’s decision was not based upon a

      development of the facts, as the court did not hold a hearing. In general, when

      the trial court renders a decision relying solely on a paper record, we are in as

      good a position as the trial court, and engage in de novo review. See, e.g., GKN

      Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). Moreover, this appeal

      ultimately requires us to determine whether the court complied with Trial Rule

      41(E) in dismissing the action. Interpretation of our trial rules is a question of

      law that we review de novo. Miller v. Danz, 36 N.E.3d 455, 457 (Ind. 2015).2



                                   Discussion and Decision
[8]   Annamalai argues that the trial court erred in dismissing the case sua sponte,

      without a hearing.3 The trial court articulated several grounds for dismissal,

      which we address in turn.




      2
        We note that when an appellee has failed to file a brief, we may reverse if the appellant presents a case of
      prima facie error. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Here, we have a brief
      designated as an Appellee’s Brief, although it is not responsive to Annamalai’s appellate contentions. Rather,
      the brief was postmarked on the same day as the Appellant’s Brief, and appears to be identical to the
      Appellant’s Brief in every respect except for certain aspects of the cover sheet and signature pages.
      3
        Annamalai also asserts that the court clerk should have entered judgment upon his Trial Rule 68 request,
      and asks that we direct the clerk to enter judgment. See Ind. Trial Rule 68 (providing that upon a properly
      documented request reflecting an offer and acceptance of judgment, “the clerk shall enter judgment”). What
      Annamalai seeks is a writ of mandate based upon the clerk’s allegedly improper failure to act, but the Indiana
      Supreme Court has exclusive jurisdiction over such matters, which are to be filed as original actions. See Ind.
      Const. art. 7, § 4; App. R. 4(B); App. R. 60; Ind. Original Action Rule 1(A); see also Ind. Code § 34-27-1-3.
      Next, Annamalai argues that the trial court was deprived of subject matter jurisdiction because of the clerk’s
      alleged error. In so arguing, Annamalai relies on federal cases evaluating the existence vel non of subject
      matter jurisdiction in light of the jurisdictional restraints set forth in Article III of the United States

      Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018              Page 4 of 8
                                   Subject Matter Jurisdiction
[9]    “Subject matter jurisdiction is the power to hear and determine cases of the

       general class to which any particular proceeding belongs.” K.S. v. State, 849

       N.E.2d 538, 540 (Ind. 2006). Indiana state courts have subject matter

       jurisdiction only to the extent granted by the Indiana Constitution or by statute.

       State v. Sproles, 672 N.E.2d 1353, 1356 (Ind. 1996). Moreover, a trial court has

       the inherent authority to dismiss a case at any time for lack of subject matter

       jurisdiction. Warrick Cty. v. Weber, 714 N.E.2d 685, 687 (Ind. Ct. App. 1999);

       Santiago v. Kilmer, 605 N.E.2d 237, 240 (Ind. Ct. App. 1992), trans. denied.


[10]   As to the Vigo Superior Court, the legislature generally conferred original and

       concurrent jurisdiction in all civil cases and in all criminal cases. I.C. §§ 33-29-

       1.5-2, 33-33-84-1, 33-33-84-3. But see I.C. § 33-26-3-1 (providing that the tax

       court “has exclusive jurisdiction” in certain tax-related cases). Thus, we readily

       conclude that the trial court had subject matter jurisdiction to resolve this case.


                                      Inability to Grant Relief
[11]   The court stated that it “cannot provide Mr. Annamalai the relief he is

       requesting.” Order of Dismissal at 3 (Sep. 27, 2017). Yet, Annamalai alleged




       Constitution. Yet, Indiana courts are not bound by Article III, and “the Indiana Constitution does not
       contain any similar restraint” on subject matter jurisdiction. Matter of Lawrance, 579 N.E.2d 32, 37 (Ind.
       1991). To the extent Annamalai is suggesting that the case was rendered moot by the filing of a purported
       offer and acceptance of judgment on June 26, 2017, Annamalai failed to present this argument to the trial
       court; at most, Annamalai baldly asserted that there was “no more justiciable controversy.” Plaintiff’s
       Motion at 2 (August 1, 2017). We conclude that Annamalai has waived his mootness argument, and decline
       to consider it on appeal. See, e.g., In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016).

       Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018          Page 5 of 8
       that his agreement with Kalyani provided for arbitration, and that Kalyani

       refused to proceed to an arbitration forum. Ultimately, Annamalai sought an

       order compelling arbitration, and the trial court could so order. See I.C. § 34-

       57-2-3 (“On application of a party showing an agreement [to arbitrate], and the

       opposing party’s refusal to arbitrate, the court shall order the parties to proceed

       with arbitration.”). Thus, dismissal was improper on this asserted basis.


                                         Abusive Litigation
[12]   The court also expressed concern that Annamalai was abusing the judicial

       process, “seeking to relitigate issues over complicated matters that have been

       addressed by courts in Georgia or on appeal with the 11th Circuit.” Order of

       Dismissal at 3 (Sep. 27, 2017). The trial court took judicial notice of two orders

       from the Northern District of Georgia, one of which concluded that Annamalai

       had abused the judicial process and attempted to relitigate his claims. The trial

       court also observed that Annamalai had filed five complaints in Vigo County,

       three of which had already been dismissed.


[13]   “There is no right to engage in abusive litigation, and the state has a legitimate

       interest in the preservation of valuable judicial and administrative resources.”

       Zavodnik v. Harper, 17 N.E.3d 259, 264 (Ind. 2014). To that end, both the

       Indiana General Assembly and the Indiana Supreme Court “have given the

       courts of this state tools to deal with abusive litigation practices.” Id. Among

       them are procedures to prevent abusive civil litigation by those who are

       incarcerated. See I.C. § 34-58-1-2 (creating a mandatory screening process for


       Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018   Page 6 of 8
       offender-filed claims); I.C. § 34-10-1-3 (prohibiting offenders who have had

       three suits dismissed under the screening statute from filing new complaints in

       forma pauperis, unless they are “in immediate danger of serious bodily injury”).

       Moreover, apart from these proactive tools, “courts have inherent authority to

       impose reasonable restrictions on any abusive litigant.” Zavodnik, 17 N.E.3d at

       265. Indeed, “[t]he courts of this state, after due consideration of an abusive

       litigant’s entire history, may fashion and impose reasonable conditions and

       restrictions . . . on the litigant’s ability to commence or continue actions in this

       state that are tailored to the litigant’s particular abusive practices.” Id. at 266.


[14]   Here, the trial court outright dismissed the case, without first tailoring

       restrictions on Annamalai’s ability to maintain his action. Thus, even if we

       assume that Annamalai was engaged in abusive litigation, that abuse would not

       support summarily imposing the severe sanction of dismissal.


                                       Personal Jurisdiction
[15]   “Personal jurisdiction requires that appropriate process be effected over the

       parties.” K.S., 849 N.E.2d at 540. Indeed, a court may exercise personal

       jurisdiction over a defendant only if the defendant was properly served or

       validly waived such service. Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1055

       (Ind. Ct. App. 2006). Trial Rule 4.1 sets forth appropriate methods for serving

       an individual, and allows for mailing a copy of the summons and complaint.


[16]   In its order of dismissal, and on several other occasions, the trial court

       questioned whether Kalyani had been effectively served. Put another way, the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018   Page 7 of 8
       trial court seems to have questioned whether Annamalai complied with Trial

       Rule 4.1. Under Trial Rule 41(E), the trial court may dismiss a case sua sponte

       for a party’s failure to follow the trial rules. Yet, to do so, the trial court first

       “shall order a hearing for the purpose of dismissing such case.” T.R. 41(E).

       Thereafter, “[t]he court shall enter an order of dismissal at plaintiff’s costs if the

       plaintiff shall not show sufficient cause at or before such hearing.” Id.


[17]   Here, the trial court did not order a hearing, and did not give Annamalai an

       opportunity to avoid dismissal. Thus, dismissal could not have been

       appropriate under Trial Rule 41(E). Moreover, having otherwise discerned no

       proper basis for sua sponte dismissal, we conclude that the trial court erred in

       dismissing the case. We accordingly reverse and remand with instructions that

       the trial court schedule a hearing in accordance with Trial Rule 41(E). 4



                                                 Conclusion
[18]   The court erred in sua sponte entering an order of dismissal without a hearing.


[19]   Reversed and remanded for a hearing.


       Crone, J., and Brown, J., concur.




       4
         To the extent that the trial court may have suspected fraud—and we reserve our suspicions—the trial court
       remains free to resolve this factual matter through a hearing.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1710-MI-2520 | March 23, 2018            Page 8 of 8
