Teresa Parnell and Patrick Parnell v. Agricor, Inc., Steinberger Construction, Inc., E&B Paving, Inc., and Keith Sullivan Excavating, Inc. ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 25 2018, 9:03 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.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Matthew J. Elkin AGRICOR, INC.
Kokomo, Indiana H. Joseph Certain
Adrienne Rines
Kiley, Harker & Certain
Marion, Indiana
ATTORNEY FOR APPELLEE
STEINBERGER CONSTRUCTION,
INC.
Rebecca Maas
Smith Fisher Maas Howard &
Lloyd, P.C.
Indianapolis, Indiana
ATTORNEY FOR APPELLEE E&B
PAVING, INC.
Bruce P. Clark
Bruce P. Clark & Associates
St. John, Indiana
ATTORNEY FOR APPELLEE
KEITH SULLIVAN EXCAVATING,
INC.
Richard McMinn
The Law Offices of the Liberty
Mutual Group
Carmel, Indiana
Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018 Page 1 of 11
IN THE
COURT OF APPEALS OF INDIANA
Teresa Parnell and Patrick July 25, 2018
Parnell, Court of Appeals Case No.
Appellants-Plaintiffs, 18A-CT-399
Appeal from the Grant Superior
v. Court
The Honorable Warren Haas,
Agricor, Inc., Steinberger Judge
Construction, Inc., E&B Paving, Trial Court Cause No.
Inc., and Keith Sullivan 27D03-1502-CT-14
Excavating, Inc.,
Appellees-Defendants
Crone, Judge.
Case Summary
[1] Teresa and Patrick Parnell (collectively “the Parnells”) filed a negligence action
against Agricor, Inc. (“Agricor”), Steinberger Construction, Inc. (Steinberger”),
E&B Paving, Inc. (“E&B”), and Keith Sullivan Excavating, Inc. (“Sullivan”)
(collectively “Appellees”), stemming from water damage to their home
allegedly attributable to negligent work that Appellees provided on an adjacent
property. Two years later, the trial court dismissed the action for failure to
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prosecute, pursuant to Indiana Trial Rule 41(E). The Parnells now appeal,
claiming that the trial court abused its discretion in doing so. Concluding that
the trial court acted within its discretion in dismissing the Parnells’ action, we
affirm.
Facts and Procedural History
[2] In 2013, the Parnells owned a residence in Marion. At that time, Agricor, the
owner of an adjacent property, was undergoing an expansion project involving
an addition to its facility and parking lot modification. Agricor hired
Steinberger as general contractor for its project, and the subcontractors included
Sullivan and E&B. On March 29, 2013, the Parnells’ property flooded after a
significant rainfall, causing damage to their basement.
[3] On February 24, 2015, the Parnells filed a tort action against Appellees,
asserting negligent design, construction, and supervision of Agricor’s project,
which allegedly resulted in the redirection and increased flow of water onto the
Parnells’ property. In March and April 2015, Appellees filed separate
appearances and responsive pleadings. From May 2, 2015, to February 15,
2017, the chronological case summary (“CCS”) shows no entries/activity in the
case. Appellants’ App. Vol. 2 at 6-7. On February 15, 2017, pursuant to Trial
Rule 41(E), the trial court initiated proceedings to dismiss the case for failure to
prosecute, setting a hearing for March 31, 2017. Three days before the
scheduled hearing, the Parnells filed a motion to lift the Trial Rule 41(E)
hearing, listing as reasons for the lack of activity in the case a fire at counsel’s
office that resulted in the loss and reclamation of certain records, a tornado
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causing power outages at counsel’s temporary office, a water main break at the
office, a lockdown and closure of the office due to a stalker, staff issues and
absences, and counsel’s family health issues. Id. at 90-91. The trial court
granted the Parnells’ motion and rescheduled the matter for a status hearing on
September 8, 2017. Other than a couple entries for substitution of Agricor’s
counsel, the CCS shows no activity during the ensuing five and a half months.
[4] At the status hearing on September 8, 2017, E&B filed a motion to dismiss
pursuant to Trial Rule 41(E). The Parnells filed a response, and the trial court
set the matter for hearing. At the October 20, 2017 hearing, the remaining
defendants joined E&B’s motion to dismiss. Counsel for the Parnells and the
various defendants presented arguments, and the trial court instructed the
parties to file proposed findings/orders.
[5] On November 28, 2017, the trial court issued an order with findings of fact and
conclusions thereon dismissing the Parnells’ negligence action for failure to
prosecute. The Parnells do not specifically challenge any of the court’s
findings, which read, in pertinent part,
3. From May 1, 2015 through October 20, 2017, Plaintiffs only
served discovery on Agricorp, [sic] but at no time did Plaintiffs
serve discovery on the remaining Defendants.
4. Plaintiffs have not taken any depositions in this case.
….
7. On March 31, 2017, the Court accepted Plaintiffs’ reasons for
failing to prosecute their case against Defendants. The Court
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lifted the T.R. 41(E) hearing and at Plaintiffs’ request set the
matter for status conference on September 8, 2017.
8. Plaintiffs undertook no action in the prosecution of their case
between the first T.R. 41(E) notice on February 15, 2017 and the
status conference of September 8, 2017.
….
10. Plaintiffs’ stated reasons for objecting to Defendants’
October 20, 2017 Motion to Dismiss are the same reasons given
for lifting the Court’s Motion to Dismiss of March 30, 2017.
11. Plaintiffs could not explain their failure to take any activity
in the last two and 1/2 years, beyond those stated in March 2017,
other than noting a lack of finances to retain experts and the
argument that discovery provided by defendants was allegedly
off-site for cleaning for a time, due to a fire.
12. Plaintiffs’ counsel admitted that he never requested that any
of the counsel of record provide the discovery again, nor did
counsel for Plaintiffs advise they were unable to review the
materials for any reason.
13. Plaintiffs’ counsel admitted that no communication or
correspondence has been sent requesting additional time, or
requesting Defendants to recreate previous discovery responses,
or voicing any issues with the construction of the law office of
Plaintiff’s [sic] attorney.
14. The period of Plaintiffs’ failure to prosecute this civil case
greatly exceeds the sixty (60) days – which is the basis of a T.R.
41(E) hearing.…
15. Case law supports a T.R. 41(E) dismissal in cases where the
Plaintiff does not prosecute the case in circumstances much less
egregious than this. See, e.g. Olson v. Alick’s Drugs, Inc., [(Ind. Ct.
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App. 2007),] 863 N.E.2d 314, affirming dismissal after 6 months
of inactivity; and Lee v. Pugh, (Ind. Ct. App. 2004), 811 N.E.2d
881, affirming dismissal after 3 months of inactivity.
16. Plaintiffs’ delay in prosecuting this case warrants dismissal as
to all Defendants.
….
19. …. Here, Plaintiffs were “threatened” with dismissal by this
Court, on the Court’s own Motion in March 2017. Despite this,
Plaintiffs did not take any action whatsoever.
20. [T]his Court finds that Plaintiffs’ failure to take any action
after the Court’s 41(E) hearing in March 2017 shows precisely
the type of dilatory actions that Trial Rule 41 is intended to
prevent.
21. The explanation by Plaintiffs’ attorney for the failure [to]
prosecute this civil action is without merit to justify this extended
period of inaction.
22. Plaintiffs did not identify any action or inaction on the part
of Defendants delaying this matter or causing damage to
Plaintiffs.
Appellants’ App. Vol. 2 at 123-26.
[6] The Parnells filed a motion to correct error, which the trial court denied. This
appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
[7] The Parnells maintain that the trial court erred in dismissing their action for
failure to prosecute and in denying their motion to correct error. We review
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involuntary dismissals and rulings on motions to correct error for an abuse of
discretion, which occurs only where the trial court’s decision was against the
logic and effect of the facts and circumstances before it. Gillespie v. Niles, 956
N.E.2d 744, 747 (Ind. Ct. App. 2011) (dismissal for failure to prosecute);
Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013) (ruling on motion to
correct error). We will affirm if there is any evidence that supports the trial
court’s decision. Gillespie, 956 N.E.2d at 747.
[8] The trial court dismissed the Parnells’ negligence action pursuant to Indiana
Trial Rule 41(E), which reads, in relevant part,
[W]hen 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.
The purpose of Trial Rule 41(E) is to ensure that plaintiffs will diligently pursue
their claims. Chapo v. Jefferson Cty. Plan Comm’n, 926 N.E.2d 504, 508 (Ind. Ct.
App. 2010). “The burden of moving litigation forward is on the plaintiff, not
the court.” Petrovski v. Neiswinger, 85 N.E.3d 922, 925 (Ind. Ct. App. 2017).
Courts cannot be asked to carry cases on their dockets indefinitely, nor should
adverse parties be left with a lawsuit hanging over their heads indefinitely.
Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied.
Rule 41(E) “provides an enforcement mechanism whereby a defendant, or the
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court[,] can force a recalcitrant plaintiff to push his case to resolution.” Chapo,
926 N.E.2d at 508.
[9] When determining whether to dismiss a case for failure to prosecute, a trial
court balances nine factors:
(1) the length of the delay; (2) the reason for the delay; (3) the
degree of personal responsibility on the part of the plaintiff; (4)
the degree to which the plaintiff will be charged for the acts of his
attorney; (5) the amount of prejudice to the defendant caused by
the delay; (6) the presence or absence of a lengthy history of
having deliberately proceeded in a dilatory fashion; (7) the
existence and effectiveness of sanctions less drastic than dismissal
which fulfill the purposes of the rules and the desire to avoid
court congestion; (8) the desirability of deciding the case on the
merits; and (9) the extent to which the plaintiff has been stirred
into action by a threat of dismissal as opposed to diligence on the
plaintiff's part.
Petrovski, 85 N.E.3d at 925. “Although Indiana does not require trial courts to
impose lesser sanctions before applying the ultimate sanction of dismissal, we
view dismissals with disfavor, and dismissals are considered extreme remedies
that should be granted only under limited circumstances.” Id.
[10] The Parnells’ property was flooded in 2013, and they filed their negligence
action in February 2015. They never sought to depose any of the defendants,
and served discovery only on Agricor, which was within two months of filing
their complaint. The CCS indicates that the action lay dormant for nearly two
years. See Appellants’ App. Vol. 2 at 6-7 (no entries between May 2, 2015 and
February 15, 2017). Trial Rule 41(E) would have allowed the trial court or any
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one of the defendants to initiate dismissal proceedings after two months of
inactivity. When the trial court initiated dismissal proceedings in February
2017, the Parnells filed a motion to lift the Rule 41(E) proceedings, citing a loss
of files due to a series of unfortunate events that had befallen plaintiffs’ counsel,
i.e., an office fire, weather-related setbacks at the temporary office, staff issues,
and family illness. The trial court granted the Parnells’ motion and extended the
time to pursue their claims by nearly six months. As of the September 2017
status hearing, the Parnells had neither proactively pursued discovery nor
requested that the defendants re-submit any of their initial
correspondence/filings.
[11] Appellees jointly moved to dismiss for failure to prosecute. At the October
2017 hearing on the dismissal proceedings, Appellees’ attorneys explained that
they had no idea what was going on in the litigation or even what each of their
clients had been accused of doing. Counsel for Sullivan described his client’s
status as “sitting in limbo like everyone else …. and we’re still at the same place
as when the suit was filed.” Tr. Vol. 1 at 14. With respect to plaintiffs’
counsel’s loss of physical and digital files, Appellees’ attorneys emphasized that
they easily could have re-submitted/re-served the files electronically, but they
were not notified and replacements were never requested. Id. at 14, 15. In
response, plaintiffs’ counsel stated,
It wasn’t merely this case that we had to go through and do
things with. Going back in my records … this is the oldest case
that I have at my office, and we simply have to go through and
find everything as it related to any individual files. And we did
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by basis of what were set for dates. When …you go through and
you have that fire you go back I … agree that I could’ve sent
letters to everyone. And I sit here and I think to myself, why
didn’t I do that? And the answer is I just simply didn’t. I don’t
have an explanation for that.… I need to obviously make this
more of a priority.… In this particular case, whatever facts
existed in 2013, they’re the same today. Nobody’s prejudice[d]
by this delay[.]
Id. at 16, 17. The court correctly reminded counsel that each defendant was
retaining/paying counsel to defend the action and, in that sense, was prejudiced
by the protracted delays and abject failure to communicate. Id. at 17.
[12] Simply put, the Parnells’ delay in prosecuting their negligence action was
exponentially longer than the sixty-day period provided in Trial Rule 41(E).
The reasons for the delay, though initially attributable to circumstances beyond
the Parnells’ and their counsel’s control, were not addressed even after the trial
court initiated dismissal proceedings. The Parnells were stirred into action only
to the extent of requesting a lift of the proceedings. The trial court, having then
been made aware that the initial delays were due to counsel’s unusual
challenges, took the less drastic route and afforded the Parnells an additional six
months to show that they would push the case forward. It was their burden to
do so, and they did not. See Petrovski, 85 N.E.3d at 925. Despite our preference
for deciding cases on the merits, we conclude that the trial court acted within its
discretion in dismissing the Parnells’ action for failure to prosecute and in
denying their motion to correct error. Consequently, we affirm.
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[13] Affirmed.
Bailey, J., and Brown, J., concur.
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