Justin Gordon v. Terex Corporation

• Court: Indiana Court of Appeals
• Decided: April 7, 2026
• Docket: 25A-CT-02275
• Status: Published
• Author: Judge Bradford

Opinion

FILED Apr 07 2026, 9:24 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Justin Gordon and Kierston Cates, Appellants-Plaintiffs

v.

Terex Corp., Terex USA, LLC, Terex South Dakota, Inc., Genie Industries, Inc., and General Rental & Sales, LLC, Appellees-Defendants

April 7, 2026 Court of Appeals Case No. 25A-CT-2275 Appeal from the Pike Circuit Court The Honorable Evan C. Biesterveld, Judge The Honorable Monica C. Gilmore, Special Judge Trial Court Cause No. 63C01-2502-CT-61

Opinion by Judge Bradford

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 1 of 13 Judges Pyle and Kenworthy concur.

Bradford, Judge.

Case Summary [1] Justin Gordon and Kierston Cates (collectively, “Appellants”) allege that

Gordon was severely injured on February 13, 2023, when the boom lift that he

was using touched a power line. At 11:39 p.m. on February 13, 2025, twenty-

one minutes before the expiration of the applicable two-year statute of

limitations, Appellants filed a complaint against Terex Corporation, Terex

USA, LLC, Terex South Dakota, Inc. (“the Terex Defendants”); Macquarie

Corporate and Asset Funding, Inc., and Macquarie Equipment Capital, Inc.

(“the Macquarie Defendants”); Genie Industries, Inc. (“Genie”); and General

Rental & Sales, LLC (“General Rental”) (all except for the Macquarie

Defendants collectively, “Appellees”), alleging claims of negligence, products

liability, and gross negligence. Appellants did not include summonses with

their complaint as required by Indiana Trial Rule 3 at any point before the

expiration of the statute of limitations.

[2] After Appellees moved to dismiss Appellants’ lawsuit with prejudice pursuant

to Trial Rule 12(B)(6), Appellants moved to voluntarily dismiss the lawsuit

without prejudice pursuant to Trial Rule 41(A)(1). The trial court denied

Appellants’ motion and granted Appellees’ motion. We affirm.

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 2 of 13 Facts and Procedural History [3] According to the facts as alleged in the complaint, Gordon owns a landscaping

business. On February 13, 2023, Gordon was cutting trees as part of a

landscaping job in Oakland City. Gordon had rented a towable boom lift to

complete the job. Gordon alleges that he was injured when the boom lift,

“while operating on its own without input from [him], moved into a power line

resulting in” his electrocution. Appellants’ App. Vol. II p. 18. On March 27,

2023, Texas attorney Patrick Daniel sent a “Letter of Representation and

Notice of Preservation of Evidence” on behalf of Gordon to General Rental.

Appellants’ App. Vol. II p. 98 (formatting altered).

[4] At 11:39 p.m. on February 13, 2025, twenty-one minutes before the applicable

two-year statute of limitations expired, Appellants filed their pro-se complaint

for damages in Pike County.1 Although it has since been acknowledged that

Appellants are not legally married, the complaint listed them as husband and

wife. Appellants raised numerous claims against Appellees and the Macquarie

Defendants, including negligence, products liability, and gross negligence. The

complaint was filed “pro se” by Cates, individually and as power of attorney for

Gordon. While Cates attached an “unsworn declaration” claiming to have

power of attorney for Gordon, she did not provide any proof that she had been

appointed as Gordon’s power of attorney in a manner consistent with Indiana

1 Appellants filed a nearly identical lawsuit in Gibson County at 10:42 p.m. on February 13, 2025.

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 3 of 13 Code section 30-5-4-1.2 Appellants’ App. Vol. II p. 28. Cates also did not

attach any summonses to her complaint or even request that summonses be

issued.

[5] On March 5, 2025, General Rental moved to dismiss, alleging that Appellants

had failed to state a claim for which relief could be granted. General Rental

raised a statute-of-limitations defense, claiming that as of March 4, 2025,

Appellants had “neither issued nor tendered summonses” and, as such, had

failed to commence their lawsuit within the two-year statute of limitations.

Appellants’ App. Vol. II p. 46. On March 12, 2025, Appellants belatedly

requested that the trial court issue summonses, but the summonses were not

issued by the trial court because the summonses provided by Appellants were

defective.

[6] On April 16, 2025, Genie and the Terex Defendants moved to dismiss, claiming

that Appellants had failed to commence their lawsuit within the two-year

statute of limitations. Genie and the Terex Defendants also claimed that

Appellants’ lawsuit was subject to dismissal for insufficiency of process. Also

2 Indiana Code section 30-5-4-1 provides that (a) To be valid, a power of attorney must meet the following conditions: (1) Be in writing. (2) Name an attorney in fact. (3) Give the attorney in fact the power to act on behalf of the principal. (4) Be signed by the principal or at the principal’s direction: (A) in the presence of a notary public; or (B) in the presence of witnesses as described under sections 1.3, 1.5, 1.7, and 1.9 of this chapter. (b) In the case of a power of attorney signed at the direction of the principal, the notary must state that the individual who signed the power of attorney on behalf of the principal did so at the principal’s direction.

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 4 of 13 on April 16, 2025, the Macquarie Defendants moved to dismiss, claiming that

Appellants had failed to commence their lawsuit within the two-year statute of

limitations and an insufficiency of process. The Macquarie Defendants

attached extrinsic evidence in support of their motion.

[7] On April 18, 2025, attorney Rahul “Monish” Bipin Patel appeared on behalf of

Appellants.3 On May 7, 2025, Appellants, allegedly through counsel by Patel

and Patrick Daniel,4 filed a notice of involuntary dismissal (“Notice #1”).

Notice #1 indicated that it had been filed on behalf of both Gordon and Cates.

The Macquarie Defendants objected to Notice #1, claiming that because they

had attached extrinsic evidence to their April 30, 2025 motion to dismiss,

pursuant to Indiana Trial Rule 12(B), their motion was to be treated as a

motion for summary judgment and, as a result, there was “no basis for a

voluntary dismissal” by Appellants.5 Appellants’ App. Vol. II p. 88. General

Rental also objected to Notice #1, citing the same reasons as the Macquarie

Defendants. General Rental had also supplemented its motion to dismiss,

which had been filed on March 5, 2025, with extrinsic evidence. On May 8,

2025, Cates, in her individual capacity and as the alleged power of attorney for

Gordon, filed a second notice of voluntary dismissal (“Notice #2”).

3 The chronological case summary (“CCS”) indicates that Patel appeared on behalf of both Gordon and Cates but Patel’s appearance form indicates that he had appeared only on behalf of Gordon. 4 Patrick Daniel appears to be a licensed attorney in Texas. Although he filed motions on behalf of Appellants below, he had not filed an appearance in the underlying action. 5 On March 8, 2025, Appellants and the Macquarie Defendants filed a joint motion to dismiss the Macquarie Defendants with prejudice.

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 5 of 13 Appellants, allegedly by Patel, also filed a response to General Rental’s

objection to Notice #1.

[8] During a hearing on the pending motions to dismiss on May 9, 2025, Patel

acknowledged that Daniel had not appeared as counsel in the Pike County

lawsuit and informed the trial court that he had “not authorized [his] signature

on” either Notice #1 or the response to General Rental’s objection to Notice #1

and that he had “never even seen the documents.” Tr. Vol. II p. 8. Patel

hesitated to qualify his signature on the documents as “falsified” but stated that

it “was never authorized – my signature on those.” Tr. Vol. II p. 8. Patel

explained that he was supposed to be local counsel for Daniel on the Gibson

County case “[b]ut Pike County was never admitted and now I never

authorized documents to be signed uh, for a case I’m not even in it.… I don’t

even do civil work.” Tr. Vol. II p. 9. Patel stated that he would not say

anything in opposition to Appellees’ motions to dismiss. Patel reiterated that

“I’m not saying anything in opposition to what they’re asking for.” Tr. Vol. II

p. 9.

[9] After a brief recess, the trial court denied Appellants’ notice of voluntary

dismissal “that was filed by Mr. Patel but um, also by Mr. Daniel who is not

uh, in this case at this time.” Tr. Vol. II p. 12. The trial court noted that

although neither Cates, Gordon, nor Daniel had appeared at the hearing, all

parties had been given notice of the hearing and had been given the opportunity

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 6 of 13 to appear and be heard. At the conclusion of the hearing, Patel orally withdrew

his appearance and indicated that he would also do the same in writing. 6

[10] On June 9, 2025, Appellants moved to correct error. In their motion,

Appellants argued that their right to voluntarily dismiss the underlying lawsuit

without prejudice was absolute and that the trial court had not had the

discretion to deny their voluntary dismissal. Appellees opposed Appellants’

motion to correct error, arguing that the ability to voluntarily dismiss an action

is not absolute. On August 19, 2025, the trial court denied Appellants’ motion

to correct error.

Discussion and Decision [11] This case comes to us following the denial of Appellants’ motion to correct

error. Appellants contend that the trial court erred in denying their voluntary

dismissals without prejudice and in granting Appellees’ motions to dismiss with

prejudice.

I. Appellants’ Motion for Voluntary Dismissal [12] At the outset, we note that Appellants filed Notice #1 and Notice #2, both of

which sought a voluntary dismissal of their underlying lawsuit. Appellants

claim on appeal that they were entitled to an automatic dismissal upon the

6 Attorney Bradley Colborn appeared for Appellants on May 30, 2025. After receiving temporary admission to the Indiana Bar, attorney Jason Pepe, an attorney who is seemingly employed at Daniel’s Texas law firm, appeared for Appellants on July 25, 2025.

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 7 of 13 filing of Notice #1, which the record demonstrates was fraudulently filed

without Patel’s authorization. As for Notice #2, once counsel has appeared or

has been appointed, a party speaks to the court through counsel. Underwood v.

State, 722 N.E.2d 828, 832 (Ind. 2000); Jenkins v. State, 809 N.E.2d 361, 367

(Ind. Ct. App. 2004), trans. denied. “To require the trial court to respond to both

[the party] and counsel would effectively create a hybrid representation to

which [a party] is not entitled.” Underwood, 722 N.E.2d at 832. Thus, if a party

was represented by counsel at the time the party files a pro se motion, it is

“within the trial court’s discretion to accept and respond to it or to strike it.”

Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988). Notice #1 explicitly stated

that it had been filed on behalf of both Gordon and Cates. The trial court,

therefore, was not obligated to respond separately to Notice #2. Id.

[13] In support of their request for a voluntary dismissal, Appellants cited Trial Rule

41(A)(1), which provides as follows:

Subject to contrary provisions of these rules or of any statute, an action may be dismissed by the plaintiff without order of court: (a) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 8 of 13 claim. The provisions of this subdivision shall not apply if the plaintiff in such action could not effectuate service of process, or otherwise procure adjudication on the merits.

(Emphases added).

[14] “‘[T]here is no absolute right to’” a voluntary dismissal. Hartford Iron & Metal,

Inc. v. Aug. Mack Env’t Inc., 254 N.E.3d 1090, 1097 (Ind. Ct. App. 2025)

(quoting State ex rel. City of New Haven v. Allen Superior Ct., 699 N.E.2d 1134,

1136 (Ind. 1998)), trans. denied.

We review the trial court’s decision on a motion for voluntary dismissal under an abuse of discretion standard. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct. App. 2004). Judicial discretion is a judge’s privilege to decide and act in accordance with what is fair and equitable within the confines of justice, in light of and confined to the facts and circumstances of a particular case. Cloyd v. Pasternak, 791 N.E.2d 757, 759 (Ind. Ct. App. 2003). “An abuse of discretion occurs when the decision misinterprets the law or clearly contravenes the logic and effect of the facts and circumstances before the court.” Smith v. Franklin Twp. Cmty. Sch. Corp., 151 N.E.3d 271, 273 (Ind. 2020).

Hartford Iron, 254 N.E.3d at 1096.

[15] Again, Trial Rule 41(A)(1) provides that “[t]he provisions of this subdivision

shall not apply if the plaintiff in such action could not effectuate service of

process, or otherwise procure adjudication on the merits.” (Emphasis added).

Appellants’ claims are governed by the Indiana Products Liability Act which

provides that an action “must be commenced” within two years after the cause

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 9 of 13 of action accrues. Ind. Code § 34-20-3-1(b)(1). This statute of limitations

applies “regardless of minority or legal disability.” Ind. Code § 34-20-3-1(a).

[16] Indiana Trial Rule 3 provides that

A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.

Appellants filed their complaint with twenty-one minutes to spare on the final

day of the two-year statute of limitations. There is no suggestion that they did

not also file the prescribed filing fee. However, the record is clear that they did

not timely submit the required summonses to the trial court. As such, they

have satisfied only two of the three steps for commencing an action.

[17] We have previously concluded that satisfying only two of the three requisites

for commencement of an action under Trial Rule 3 “is not adequate under our

rules and case precedent to permit [a] plaintiff to continue” to litigate an action.

Fort Wayne Int’l Airport v. Wilburn, 723 N.E.2d 967, 968 (Ind. Ct. App. 2000),

trans. denied. The Indiana Supreme Court cited Wilburn with approval in Ray-

Hayes v. Heinamann, 760 N.E.2d 172, 173 (Ind. 2002), aff’d in relevant part, 768

N.E.2d 899 (Ind. 2002).

[18] “Citing Trial Rule 3, our supreme court has concluded that a civil action is not

timely commenced ‘if the plaintiff files a complaint within the applicable statute

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 10 of 13 of limitations but does not tender the summons to the clerk within that statutory

period.’” Smith v. Haggard, 22 N.E.3d 801, 803 (Ind. Ct. App. 2014) (quoting

Ray-Hayes, 760 N.E.2d at 173). In Hortenberry v. Palmer, 992 N.E.2d 921, 926

(Ind. Ct. App. 2013), trans. denied, we rejected a substantial-compliance

argument, recognizing that even though a strict application of Trial Rule 3 may

produce a harsh result, the Indiana Supreme Court has created “a bright-line

rule for determining when an action has been commenced and has left us with

no discretion in the matter.” Applying these cases to the instant matter, we

conclude that Appellants failed to timely commence the underlying action. As

such, they cannot procure adjudication on the merits, a pre-requisite for

voluntarily dismissing a lawsuit pursuant to Trial Rule 41(A)(1).7 We therefore

cannot say that the trial court abused its discretion by denying Appellants’

request for a voluntary dismissal.

II. Appellees’ Motions to Dismiss [19] Appellants also contend that the trial court erred in granting Appellees’ motions

to dismiss the underlying case with prejudice. “Trial Rule 12(B)(6) is the

vehicle for motions to dismiss for failure to state a claim upon which relief may

be granted.” Brodnik v. Cottage Rents LLC, 165 N.E.3d 126, 128 (Ind. Ct. App.

2021).

7 To the extent that Appellants argue on appeal that voluntary dismissal was warranted under Trial Rule 41(B), we note that they did not raise this argument below and it is therefore waived. See Benziger v. Radabaugh, 267 N.E.3d 1149, 1156 n.7 (Ind. Ct. App. 2025) (“It is well settled that an issue not raised before the trial court … cannot be argued for the first time on appeal and is waived.”).

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 11 of 13 A 12(B)(6) motion to dismiss tests the complaint’s legal sufficiency. A complaint states a claim on which relief can be granted when it recounts sufficient facts that, if proved, would entitle the plaintiff to obtain relief from the defendant.… [A] complaint does not fail to state a claim merely because a meritorious defense may be available. But a plaintiff may plead itself out of court if its complaint alleges, and thus admits, the essential elements of a defense. An example is where the “complaint shows on its face that the statute of limitations has run[.” Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986)].

Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017).

[20] We concluded above that the underlying lawsuit was not timely commenced

before the expiration of the two-year statute of limitations because Appellants

failed to meet the requirements under Trial Rule 3 for timely commencement of

their cause of action. We further conclude that applying the Indiana Supreme

Court’s above-discussed bright-line rule for commencing an action, Appellants

had failed to state a claim upon which relief could be granted. As such, the trial

court properly granted Appellees’ motions to dismiss with prejudice. See Smith,

22 N.E.3d at 804.

[21] The judgment of the trial court is affirmed.

Pyle, J., and Kenworthy, J., concur.

ATTORNEYS FOR APPELLANTS Jason E. Pepe Patrick Daniel Law

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 12 of 13 Houston, Texas

Bradley P. Colborn Colborn Law Granger, Indiana

ATTORNEY FOR APPELLEE GENERAL RENTAL & SALES, LLC Robert R. Foos, Jr. Lewis Wagner & Trimble Indianapolis, Indiana

ATTORNEYS FOR APPELLEES TEREX CORP., TEREX USA, LLC, TEREX SOUTH DAKOTA, INC., TEREX UTILITIES, INC. AND GENIE INDUSTRIES, INC. Kevin C. Schiferl Maggie L. Smith Jordan M. Slusher FBT Gibbons Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 25A-CT-2275 | April 7, 2026 Page 13 of 13