Credit Bureau Collection Services, Inc. v. Rebecca Alsman, Sheila K. Riggs, Ashley Phillips, Charles R. Rogers, Betsy M. Wilson, David Wilson, and Julia Robbins (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 30 2019, 11:09 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR THE APPELLANT
Timothy E. Stucky
Stucky, Lauer & Young, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Credit Bureau Collection April 30, 2019
Services, Inc., Court of Appeals Case No.
Appellant-Plaintiff, 18A-SC-2663
Appeal from the Shelby Superior
v. Court
The Honorable David N. Riggins,
Rebecca Alsman, Sheila K. Judge
Riggs, Ashley Phillips, Charles Trial Court Cause Nos.
R. Rogers, Betsy M. Wilson, 73D02-1709-SC-924
David Wilson, and Julia 73D02-1709-SC-936
Robbins, 73D02-1709-SC-942
73D02-1709-SC-943
Appellees-Defendants. 73D02-1709-SC-946
73D02-1709-SC-947
73D02-1709-SC-953
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 1 of 6
Case Summary
[1] On August 8, 2018, Credit Bureau Collection Services, Inc. (“CBCS”) was
scheduled to appear at 1:30 p.m. to show cause as to why its cases against
Rebecca Alsman, Sheila K. Riggs, Ashley Phillips, Charles R. Rogers, Betsy M.
Wilson, David Wilson, and Julia Robins (collectively “Appellees”) should not
be dismissed by the court’s Indiana Trial Rule 41(E) motion. CBCS’s counsel
arrived thirty minutes late after mistakenly going to the wrong courtroom.
When counsel arrived around 2:00 p.m., he was informed that CBCS’s seven
small-claims cases had been dismissed with prejudice. CBCS’s motions for relief
and reinstatement of those cases were denied. CBCS appeals, claiming an abuse
of discretion. We affirm.
Facts and Procedural History
[2] CBCS is a collection agency conducting business within the state of Indiana. In
September of 2017, CBCS filed seven small claims actions in Shelby Superior
Court 2. Insufficient service was returned on five of the seven cases. Of the two
cases where service was achieved, the first was addressed on November 7, 2017,
at an initial hearing where Alsman and CBCS entered into an agreed judgment;
however, that agreement was denied on November 8, 2017, for exceeding the
small-claims jurisdictional limit. The second of the two serviced cases was
originally scheduled for November 20, 2017, but was rescheduled for January
22, 2018, on Rigg’s motion. Neither party appeared at the bench trial on
January 22, and the case was closed pending further action.
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[3] On June 7, 2018, the court issued Rule 41(E) motions for all seven of CBCS’s
cases and scheduled them to be heard on August 8, 2018, at 1:30 p.m. in Shelby
Superior Court 2. On July 16 and 17, 2018, CBCS filed its responses to the
court’s Rule 41(E) motions and filed its alias notice of claims, all of which were
scheduled for hearings on September 24, 2018.
[4] On August 8, 2018, counsel arrived at Court 1 at 1:30 p.m. rather than Court 2,
where CBCS’s Rule 41(E) hearings were set to be heard. Riggs was present in
Court 2 for the scheduled hearing. Counsel arrived in Court 2 shortly before
2:00 p.m., almost 30 minutes late and was informed that CBCS’s seven cases
had been dismissed with prejudice. On September 7, 2018, CBCS filed motions
for relief from judgment and reinstatement in all seven of its dismissed cases
pursuant to Rules 41(F) and 60(B)(2). On September 12, 2018, the court denied
CBCS’s requests for relief from judgment and reinstatement of proceedings.
Discussion and Decision
I. Dismissal
[5] Trial Rule 41(E) directs trial courts to order a hearing for the purpose of
dismissing a case if no action has been taken in sixty days and to dismiss a case
if a party does not show sufficient cause at or before a hearing. Ind. Trial R.
41(E). We review the trial court’s dismissal for an abuse of discretion. Deutsche
Bank Nat’l Trust Co. v. Harris, 985 N.E.2d 804, 813 (Ind. Ct. App. 2013). We
consider several factors when deciding whether or not a trial court has abused
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its discretion by dismissing a case for failure to prosecute: (1) length of the
delay, (2) the reason for the delay, (3) the degree of the plaintiff’s personal
responsibility, (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 his
attorney, (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 the threat
of dismissal as opposed to diligence on the plaintiff’s part. Id. at 813–14.
[6] CBCS has failed to establish that the trial court abused its discretion by
dismissing its claims. It is uncontested that for five of CBCS’s seven cases there
was inactivity of almost seven months between filing and the court’s Rule 41(E)
motion. Additionally, regarding the two serviced-cases in Shelby County,
CBCS neglected to diligently pursue those claims after November 7, 2017, even
failing to appear at a bench trial scheduled for January 22, 2018. Counsel’s
failure to appear in a timely manner on August 8, 2018, lengthened what was
already a substantial delay. “‘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 head indefinitely.’” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.
2003) (quoting Hill v. Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App. 1997),
trans. denied. Further, it seems clear from the record that CBCS was only stirred
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into effectuating service on the majority of its defendants by the threat of
dismissal, yet still failed to appear in a timely manner to a Rule 41(E) dismissal
hearing. Though there is a strong preference for deciding cases on the merits,
the trial court found numerous factors that weigh in favor of dismissal. CBCS
has failed to establish that an abuse of discretion occurred.
II. Denial of Relief and Reinstatement
[7] Indiana Trial Rule 60(B)(2) states that a court may, on motion, relieve a
moving party from judgment on any grounds that are just. Ind. Trial R.
60(B)(2). The burden is on the movant to establish grounds for relief under Rule
60(B). Deutsche Bank Nat’l Trust Co, 985 N.E.2d at 813. The trial court has
discretion in granting or denying a Rule 60(B) motion, a decision which we
review for an abuse of discretion. Assocs. Fin. Serv. Co. v. Knapp, 422 N.E.2d
1261, 1263 (Ind. Ct. App. 1981). An abuse of discretion occurs where the trial
court’s decision is “against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable and actual deductions to be drawn
therefrom.” Id. In reviewing whether an abuse of discretion has occurred, we
look to factors such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiency by amendment previously
allowed, undue prejudice to the opposing party, and futility of the amendment.
Turner v. Franklin Cty. Four Wheelers Inc., 889 N.E.2d 903, 906 (Ind. Ct. App.
2008).
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[8] CBCS and its counsel are responsible for undue delay in the prosecution of the
proceedings. The last time CBCS pursued these cases before the trial court’s
Rule 41(E) motion was on November 7, 2018, when CBCS entered into an
agreed judgment (which was denied the next day) with Alsman. Next, CBCS
failed to appear at a January 22, 2018 bench trial. Almost 5 months later, the
trial court entered a Rule 41(E) motion to dismiss with a hearing scheduled for
August 8, 2018. This prompted CBCS to effectuate service on the Appellees and
file both a response to the court’s Rule 41(E) motion and an alias notice of
claims. However, CBCS’s counsel failed to appear in a timely manner for the
Rule 41(E) hearing, and as the trial court observed at the time, “[CBCS] has
swung and missed on this twice in my court . . . .” In conclusion, the trial court
did not abuse its discretion by finding an undue delay and denying CBCS’s
motions for relief from judgment and reinstatement. CBCS and its counsel were
responsible for the undue delay of its cases and wasting judicial resources.
[9] The judgement of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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