      MEMORANDUM DECISION
                                                                                Mar 31 2015, 10:42 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
      Beverly R. Newman, Ed. D.                                Arthur C. Johnson, II
      Bradenton, Florida                                       Johnson, Stracci & Ivancevich, LLP
                                                               Merrillville, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Beverly R. Newman, Ed.D.,                                March 31, 2015

      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A05-1409-PL-469
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable James B. Osborn,
      Meijer, Inc.,                                            Judge.
      Appellee-Defendant.                                      The Honorable H. Patrick Murphy,
                                                               Magistrate.
                                                               Cause No. 49D14-1010-PL-43302




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Beverly R. Newman appeals from the trial court’s denial of her motion to set

      aside the dismissal of her complaint. We reverse and remand.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015         Page 1 of 10
                                                     Issue
[2]   Newman raises six issues, which we consolidate and restate as: whether the

      trial court erred in declining to set aside its dismissal of Newman’s complaint

      for failure to prosecute.


                               Facts and Procedural History
[3]   Newman, by counsel Lawrence T. Newman, filed a civil complaint against

      Meijer, Inc., on September 28, 2010. She alleged that she sustained injuries and

      personal property damage as a result of a fall at a Meijer store in Indianapolis.

      Newman asserted claims of negligence, gross negligence, and intentional

      infliction of emotional distress. She also requested punitive damages.


[4]   On October 18, 2010, Meijer served discovery requests upon Newman. On

      November 29, 2010, Meijer advised Newman that it had not yet received

      responses to its discovery requests. On December 20, 2010, Meijer filed a

      motion to compel. Newman sent discovery responses to Meijer on December

      28, 2010. Meijer withdrew its motion to compel.


[5]   On February 22, 2011, Meijer filed a second motion to compel discovery,

      asserting that Newman had not fully responded to an interrogatory. The trial

      court granted Meijer’s motion, ordering Newman to answer the interrogatory

      on or before March 31, 2011.


[6]   On April 12, 2011, Meijer filed a motion for sanctions, asserting that Newman

      had not complied with the trial court’s motion to compel. On April 15, 2011,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 2 of 10
       the court granted the motion and dismissed the case with prejudice. Next, the

       court scheduled a hearing on Meijer’s request for expenses, costs, and attorney’s

       fees. The court later rescheduled the hearing because “plntiff [sic] has not had

       timely notice of hearing.” Appellant’s App. p. 2. Next, Newman filed a

       motion to vacate sanctions, and Meijer filed a response. The record does not

       reflect that the trial court vacated its dismissal of the case, but the case

       continued and no financial sanctions were imposed.


[7]    On June 10, 2011, Newman served discovery requests upon Meijer. On

       November 8, 2011, Newman emailed Meijer to advise that Meijer’s discovery

       responses were over four months late.


[8]    On January 25, 2012, Attorney Robert A. Zaban entered an appearance for

       Newman. On that same date, Lawrence T. Newman requested leave to

       withdraw from the case. The court granted Attorney Newman permission to

       withdraw. On August 9, 2012, Newman emailed Meijer to again request that

       Meijer respond to Newman’s June 10, 2011 discovery requests. On August 30,

       2012, Meijer sent discovery responses to Newman.


[9]    On July 10, 2013, Attorney Zaban filed a motion to withdraw from the case.

       The court granted the motion, and Newman proceeded pro se from that point.


[10]   On October 31, 2013, Newman filed with the court a Notice of Service of First

       Interrogatories Propounded to Defendant Meijer, Inc. Her mailing address was

       included in the motion. In January 2014, Newman and Meijer exchanged

       correspondence regarding discovery.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 3 of 10
[11]   On February 21, 2014, the trial court scheduled a “Hearing on Motion for 41E

       Dismissal” for April 28, 2014. The court acted on its own motion. According

       to the Chronological Case Summary, the notice was sent to Meijer’s counsel

       but not to Newman. The notice scheduling the hearing indicated that Newman

       had “No Known Address.” Appellant’s App. p. 24.


[12]   At the April 28, 2014 hearing, Meijer appeared but Newman was absent. The

       trial court noted that the hearing was for a 41(E) motion and stated, “Notice to

       both parties.” Tr. p. 3. Meijer confirmed for the court that Newman was

       representing herself. The court concluded, “The notice does go to her, and she

       does not appear. The defendant does appear by counsel, and the Court is

       dismissing per Trial Rule 41(E).” Id. at 4. The court noted the dismissal of the

       case in its handwritten minutes but did not issue an order of dismissal.


[13]   On July 14, 2014, Newman filed a motion to compel discovery responses and a

       request for sanctions. The court denied the motion, noting that the case had

       been dismissed on April 28, 2014, for failure to prosecute.


[14]   On August 4, 2014, Newman filed a Verified Motion to Vacate Order

       Dismissing Case. The court denied the motion without a hearing. Next,

       Newman filed a motion to correct error, which the court denied without a

       hearing. This appeal followed.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 4 of 10
                                    Discussion and Decision
[15]   Newman claims that the trial court erred by failing to set aside the dismissal of

       her complaint because she did not receive adequate notice of the hearing and

       was denied an opportunity to argue that dismissal was inappropriate.


[16]   The trial court dismissed Newman’s complaint pursuant to Indiana Trial Rule

       41(E). That rule provides:


               Whenever there has been a failure to comply with these rules or
               when no action has been taken in a civil case 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.
       Id.


[17]   After a case has been dismissed pursuant to Trial Rule 41(E), a party may seek

       reinstatement as follows:

               For good cause shown and within a reasonable time the court
               may set aside a dismissal without prejudice. A dismissal with
               prejudice may be set aside by the court for the grounds and in
               accordance with the provisions of Rule 60(B).
       Ind. Trial Rule 41(F).


[18]   Trial Rule 60(B) provides, in relevant part:

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 5 of 10
               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment, including a
               judgment by default, for the following reasons:
               (1) mistake, surprise, or excusable neglect;
               (2) any ground for a motion to correct error, including without
               limitation 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;
               (3) fraud (whether heretofore denominated intrinsic or extrinsic),
               misrepresentation, or other misconduct of an adverse party;
               (4) entry of default or judgment by default was entered against
               such party who was served only by publication and who was
               without actual knowledge of the action and judgment, order or
               proceedings;
               *****
               (6) the judgment is void;
               *****
               (8) any reason justifying relief from the operation of the
               judgment, other than those reasons set forth in sub-paragraphs
               (1), (2), (3), and (4).
[19]   The burden is on the movant to establish grounds for relief under Trial Rule

       12(B)(6). Deutsche Bank Nat. Trust Co. v. Harris, 985 N.E.2d 804, 813 (Ind. Ct.

       App. 2013). This court normally employs an abuse of discretion standard in

       reviewing a trial court’s ruling on a motion to set aside a judgment. Id. When a

       motion for relief from judgment is made pursuant to Trial Rule 60(B) alleging

       that the judgment is void, discretion on the part of the trial court is not at issue

       because either the judgment is void or it is valid. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 6 of 10
[20]   Newman argues that the trial court dismissed the case in violation of her right

       to due process under the Fourteenth Amendment to the United States

       Constitution and article one, section 12 of the Indiana Constitution because she

       did not receive notice of the hearing and an opportunity to contest the dismissal

       for failure to prosecute. A judgment is void if it is entered without due process.

       Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998).


[21]   The United States Supreme Court has stated, “An elementary and fundamental

       requirement of due process in any proceeding which is to be accorded finality is

       notice reasonably calculated, under all the circumstances, to apprise interested

       parties of the pendency of the action and afford them an opportunity to present

       their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

       314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). “Process which is a mere gesture is

       not due process. The means employed must be such as one desirous of actually

       informing the absentee might reasonably adopt to accomplish it.” Id. at 315.


[22]   In this case, the record is clear that notice was not sent to Newman. The

       Chronological Case Summary reflects notice was sent to Meijer but not

       Newman. The order scheduling the 41(E) hearing stated that Newman had

       “No Known Address.” Appellant’s App. p. 24. This statement was incorrect,

       because Newman had previously filed with the trial court a Notice of Service of

       First Interrogatories that contained her address. In addition, Meijer concedes




       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 7 of 10
                                                                                                1
       that Attorney Zaban’s motion to withdraw contained Newman’s address.

       Appellee’s Br. p. 24. Newman has stated, without citation to evidence to the

       contrary from Meijer, that she did not receive notice of the hearing. Thus, the

       Rule 41(E) hearing was ex parte due to lack of adequate notice, and the

       dismissal order was void. See Moore v. Terre Haute First Nat’l Bank, 582 N.E.2d

       474, 478 (Ind. Ct. App. 1991) (trial court erred in denying motion to set aside

       dismissal under Rule 41(E); plaintiff had not received notice of the defendants’

       motion to dismiss for failure to prosecute). The trial court erred in denying

       Newman’s motion to set aside the order of dismissal for failure to prosecute.

       See id.


[23]   Meijer claims Newman received adequate notice. Specifically, Meijer notes

       that the trial court said twice during the hearing that Newman had received

       notice. Meijer states that because the court was aware that Newman was

       proceeding pro se, the court also could have been aware of Newman’s pro se

       mailing address in the court’s file and that notice may have been sent to that

       address. Meijer’s argument is mere speculation. The trial court and this Court

       are limited to the evidence in the record. The order scheduling the hearing

       indicated that Newman had no known address, and Meijer points to no

       evidence to dispute Newman’s claim that she failed to receive notice of the




       1
           Attorney Zaban’s motion to withdraw has not been included in the record.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 8 of 10
       hearing. Based on this record, the trial court’s statements during the hearing

       were in error.


[24]   Meijer also argues the trial court properly denied Newman’s motion to set aside

       the dismissal because she failed to establish a meritorious claim or defense.

       Ordinarily, a party appealing the denial of a motion made under Trial Rule

       60(B) must establish a meritorious claim or defense. Deutsche Bank, 985 N.E.2d

       at 813. If a judgment is void, whether from faulty process or otherwise, a T.R.

       60(B) claimant need not show a meritorious defense or claim. Id. Here,

       Newman has alleged and demonstrated that the dismissal order was void for
                                                                                         2
       lack of due process, so Meijer’s argument is without merit.


[25]   This case is over four years old and needs to be moved along. We express no

       opinion on the merits of the trial court’s decision under Rule 41(E). Nothing in

       this memorandum decision prevents the trial court from ordering another 41(E)

       hearing if the requirements of the rule and all procedural prerequisites are met.


                                                    Conclusion
[26]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings consistent with this decision.




       2
         Newman argues that dismissal for failure to prosecute was inappropriate because she took action to move
       the case forward during the sixty days prior to the court’s scheduling of a Trial Rule 41(E) hearing. She
       further argues that dismissal was inappropriate because Meijer breached a duty to inform the trial court of her
       address and of the fact that she had taken action in the case during the sixty days prior to the court scheduling
       the 41(E) hearing. It is unnecessary for us to address these arguments due to the manner in which we have
       resolved this appeal.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015                 Page 9 of 10
[27]   Reversed and Remanded.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-PL-469 |March 31, 2015   Page 10 of 10
