Willie L. Joseph, Jr. v. Jacob M. Kelley (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2018, 8:06 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad M. Buell J. Thomas Vetne
SCHILLER LAW OFFICES, LLC Amanda N. Zaluckyj
Carmel, Indiana JONES OBENCHAIN, LLP
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie L. Joseph, Jr., October 18, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-1059
v. Appeal from the Elkhart Superior
Court
Jacob M. Kelley, The Honorable Stephen R. Bowers,
Appellee-Defendant. Judge
Trial Court Cause No.
20D02-1412-CT-238
Bailey, Judge.
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Case Summary
[1] Willie L. Joseph, Jr. (“Joseph”) appeals the dismissal of his complaint against
Jacob M. Kelley (“Kelley”) for failure to prosecute. Joseph presents the
following dispositive issue for our review: whether the trial court abused its
discretion when it did not hold a hearing before dismissing his complaint under
Indiana Trial Rule 41(E).
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] On December 3, 2014, Joseph filed his complaint for damages, alleging that he
was struck by a vehicle operated by Kelley while Joseph was walking across
Main Street in Goshen at the intersection of Lincoln Avenue on November 14,
2014. On January 12, 2015, Kelley filed his answer and a cross claim against
Joseph for property damage to Kelley’s vehicle. On January 30, 2014, Joseph
filed his answer to Kelley’s cross claim.
[4] There was no activity on the case until the trial court, on its own motion, set a
status conference which was held on August 5, 2016. At that conference, the
trial court found that the “matter [was] selected for mediation,” and it ordered
the parties to complete mediation by October 28, 2016. Appellant’s App. at 4.
At the October 28 status conference, the parties agreed to engage in mediation
on March 21, 2017, and to reset the status conference to March 24, 2017. The
court extended the discovery deadline to sixty days following mediation.
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[5] On March 21, the parties engaged in unsuccessful mediation. At the March 24
status conference, the court set final pretrial conference and trial dates. The
court also set another status conference for April 28, however both parties failed
to appear at that conference. On April 28, the court ordered the parties “to
advise the court as to the status of th[e] case,” but there was no further activity
in the case until Kelley filed a motion to dismiss pursuant to Trial Rule 41(E)
on June 6, 2017. Id. at 5-6. The court held a hearing on that motion on June
16, at which both parties appeared by counsel. The trial court issued its order
from that hearing on June 20. Neither the order nor the Chronological Case
Summary (CCS) state the court’s ruling on the 41(E) motion, but both parties
agree that the court denied that motion. The June 20 order was a “pretrial
conference order,” and it set pretrial deadlines, including a final pretrial
conference on October 21, 2017, and a jury trial date of October 24, 2017. Id. at
6, 27-32.
[6] The court held a pretrial conference on October 20 at which both parties
appeared. Because the parties “advise[d] the court that an offer has been
received and that counsel for Plaintiff will forward same to client,” the court
cancelled the October jury trial date and set another status conference for
November 17, 2017. Id. at 7. At the November 17 status conference, both
parties appeared by counsel and the court noted that the cause would be “set for
further status conference upon the request of either party.” Id.
[7] On January 18, 2018, Kelley again moved to dismiss the cause pursuant to
Trial Rule 41(E). On January 22, the court set a hearing on that motion for
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March 2, 2018, and the CCS indicates “Automated ENotice Issued to
Parties[’]” attorneys on January 23. Id. On January 31, Joseph personally filed
a handwritten letter to the court, stating his intention to replace his attorney due
to a disagreement regarding settlement and “take this case to trial” with a new
attorney. Id. at 7, 33.
[8] Neither party nor their attorneys appeared for the March 2 hearing on Kelley’s
motion to dismiss. Id. at 27-28. The trial court called Kelley’s attorney. Id.
The trial court then called Joseph’s attorney, who was in a deposition for
another case. When Joseph’s attorney returned the court’s phone call that same
day, the court informed Joseph’s attorney that the motion to dismiss had
already been granted. Id. The CCS indicates the case was dismissed on March
2, and an “ENotice” was issued to the parties’ attorneys on March 3. Id. at 8.
[9] On March 6, Joseph personally filed his handwritten letter stating that his
attorney “did not let [him] know about the March 2, 2018 court date[,]” and
“requesting a jury trial.” Id. at 8, 34. That same day, the court issued an order
stating: “This matter having been dismissed with prejudice, the Court declines
to take any action on Plaintiff’s correspondence.” Id. at 8, 26. On April 2,
Joseph’s attorney filed a motion to reinstate the cause or set aside the order of
dismissal. The motion stated that Joseph’s counsel “inadvertently failed to
discover any notice of the hearing set on the Motion to Dismiss for March 2nd,
2018[,] prior to this date through the Court’s electronic filing system.” Id. at 27.
The motion further stated that Joseph’s counsel was “unaware” of the hearing
and therefore unable to advise Joseph of the hearing. Id. at 27-28. The motion
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also notified the court that Joseph had “previously answered discovery, … been
deposed, and … attended mediation.” Id. at 30.
[10] Kelley’s counsel filed a response that same day, and, on April 4 the trial court
denied the motion to reinstate the case or set aside the dismissal. This appeal
ensued.
Discussion and Decision
[11] Joseph asserts that the trial court erred when it dismissed his case without first
holding a hearing on Kelley’s Rule 41(E) motion. We review a Rule 41(E)
dismissal for an abuse of discretion. E.g., Smith v. State, 90 N.E.3d 691, 693
(Ind. Ct. App. 2017). An abuse of discretion occurs if the decision of the trial
court is against the logic and effect of the facts and circumstances before it. Id.
[12] Indiana Trial Rule 41(E) states:
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.
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[13] This court has recently addressed the Rule 41(E) requirement of a hearing prior
to dismissal. In Caruthers v. State, the trial court set the defendant’s
postconviction relief (PCR) case for a Rule 41(E) hearing and, prior to that
date, the defendant filed a notice regarding why the case should not be closed
and a motion to set his PCR for an evidentiary hearing on the merits.
However, the trial court dismissed the case without a hearing. We held that
Rule 41(E) “clearly contemplates that a hearing not only be scheduled, but that it be
conducted unless, and only unless the plaintiff has, prior to the hearing, been
afforded opportunity to demonstrate sufficient good cause for the delay and has
in fact done so.” 58 N.E.3d 207, 214 (Ind. Ct. App. 2016) (emphasis added)
(quoting Judge Sullivan’s dissent in Metcalf v. Estate of Hastings, 726 N.E.2d 372,
374-75 (Ind. Ct. App. 2000), trans. denied). We noted that this holding was
required by our Supreme Court’s decision in Rumfelt v. Himes, 438 N.E.2d 980
(Ind. 1982), where the court interpreted Trial Rule 41(E) “to require that the
trial court hold a hearing and not merely schedule a hearing.” Id. at 212.
Because the trial court had scheduled but not conducted a hearing, we reversed
the Rule 41(E) dismissal. Id. at 214.
[14] Similarly, in Smith v. State, 90 N.E.3d 691, 695 (Ind. Ct. App. 2017), the trial
court had ordered the parties to submit evidence by affidavit regarding the
State’s motion to dismiss under Rule 41(E). The trial court granted the
defendant’s motion for additional time to respond to the motion and gave the
defendant a date by which he must respond. The defendant failed to respond to
the motion but did file a motion for an evidentiary hearing on the merits of his
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case. The trial court then granted the motion to dismiss without a hearing. On
appeal, we cited Rumfelt and Caruthers in support of our holding that the trial
court erred in dismissing the case without a hearing, and we remanded the case
for either a Trial Rule 41(E) hearing or a reinstatement of the case. Id. at 695.
[15] Here, as in Caruthers, the trial court scheduled a hearing on the Rule 41(E)
motion but failed to actually conduct a hearing. Although the CCS states
“Hearing on Motion to Dismiss” on “03/02/2018,” it is undisputed that
neither party nor their attorneys actually attended a hearing that day; therefore,
no hearing could have been conducted. Appellant’s App. at 8. Moreover,
when Joseph’s counsel returned the trial court’s phone call that day, it informed
him that the case had already been dismissed; thus, Joseph was deprived of an
opportunity to demonstrate sufficient good cause for the delay in the case prior
to a ruling on dismissal. That was an abuse of the trial court’s discretion.
[16] Kelley cites this court’s holding in Metcalf that “when the court orders a hearing
and notice of the hearing date is sent to the plaintiff, the hearing requirement of
T.R. 41(E) is satisfied, regardless of whether the plaintiff or his counsel attends
the hearing.” 726 N.E.2d at 374. However, that case does not help Kelley for
two reasons. First, in Metcalf there was no evidence that the plaintiff’s attorney
did not actually receive notice of the 41(E) hearing whereas, in the instant case,
Joseph’s attorney stated that he never received such notice. And that statement
was bolstered by the fact that Kelley’s attorney also failed to appear for the
hearing, making it more likely that there was some problem with the notice of
the hearing. Second, two panels of this court have called Metcalf’s holding into
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question as conflicting with both the language of Rule 41(E) and the Supreme
Court’s holding in Rumfelt. Smith, 90 N.E.3d at 695; Caruthers, 58 N.E.3d at
214. We agree with this court’s most recent holdings in Smith and Caruthers
that Trial Rule 41(E) requires that, prior to dismissal of a case, the trial court
both schedule and actually conduct a hearing at which the plaintiff is, in fact,
given the opportunity to demonstrate sufficient good cause for the delay.
Because the trial court failed to conduct a hearing at which Joseph had the
opportunity to show good cause for the delay, the trial court erred in granting
the Rule 41(E) motion. Accordingly, we reverse the dismissal and remand for
either a Trial Rule 41(E) hearing or reinstatement of Joseph’s action.
[17] Reversed and remanded with instructions.
Mathias, J., and Bradford, J., concur.
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