Tony Petrovski v. Robert Neiswinger

FILED
Oct 27 2017, 9:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Andrew A. Crosmer Yolanda Cardona
Daniel J. Zlatic Employees of the Corporate Law
Rubino, Ruman, Crosmer & Polen Department
Dyer, Indiana State Farm Mutual Automobile
Insurance Company
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony Petrovski, October 27, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1706-CT-1412
v. Appeal from the Lake Circuit
Court
Robert Neiswinger, The Honorable Marissa J.
Appellee-Plaintiff. McDermott, Judge
Trial Court Cause No.
45C01-1504-CT-60
Vaidik, Chief Judge.
Case Summary
[1] Following a car accident, Tony Petrovski retained attorney Samuel G.
Vazanellis to represent him. Attorney Vazanellis filed the complaint one day
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before the statute-of-limitations period expired but did not serve the defendant.
Once a month, Petrovski called Attorney Vazanellis to check on the status of
his case, but Attorney Vazanellis never responded. Sixteen months after the
complaint was filed, the Indiana Supreme Court suspended Attorney Vazanellis
from the practice of law. Petrovski found out about the suspension several
months later and hired new counsel, who then served the defendant. The
defendant filed a motion to dismiss pursuant to Indiana Trial Rule 41(E) for
failure to prosecute, which the trial court granted. The trial court indicated that
its dismissal was “without prejudice,” but because the statute-of-limitations
period had expired, Petrovski was barred from refiling.
[2] Petrovski now appeals, arguing that the trial court erred in dismissing his
complaint for failure to prosecute. Under the unique facts of this case, in
particular Attorney Vazanellis’s complete abdication of his duties as an Indiana
attorney and Petrovski’s inability to refile, we conclude that the trial court erred
in dismissing Petrovski’s complaint. We therefore reverse and remand.
Facts and Procedural History
[3] Petrovski and Robert Neiswinger were involved in a car accident on April 17,
2013, in Lake County. Petrovski retained Attorney Vazanellis to represent him.
Shortly after the accident, on April 29, Attorney Vazanellis faxed a letter to
State Farm, Neiswinger’s insurer, stating that Neiswinger caused the accident
and that Petrovski was being treated for his injuries. Attorney Vazanellis also
requested a copy of Neiswinger’s insurance policy. The next day, State Farm
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responded to Attorney Vazanellis, indicating that it was “handling your client’s
third party injury claim and will update our records to reflect your
representation.” Appellant’s App. Vol. II p. 23.
[4] On April 16, 2015—the day before the two-year statute-of-limitations period
was set to expire—Petrovski, represented by Attorney Vazanellis, filed a
complaint against Neiswinger. Attorney Vazanellis attempted to serve
Neiswinger by certified mail on May 5, but it was returned on May 22 as
“unsuccessful.” Id. at 6. Attorney Vazanellis did not attempt to re-serve
Neiswinger.
[5] According to Petrovski, he heard nothing about the status of his case “for
months.” Id. at 42. “After some time,” Petrovski decided to contact Attorney
Vazanellis. Id. “Throughout 2016” Petrovski called Attorney Vazanellis
“about once a month,” but Attorney Vazanellis “never responded to any of
[his] inquiries.” Id.
[6] On August 25, 2016, about sixteen months after Petrovski’s complaint was
filed, the Indiana Supreme Court suspended Attorney Vazanellis from the
practice of law effective immediately. See In re Samuel G. Vazanellis, No. 45S00-
1606-DI-330 (Ind. Aug. 25, 2016); see also In re Vazanellis, No. 45S00-1606-DI-
330 (Ind. Feb. 27, 2017) (making suspension indefinite).
[7] According to Petrovski, in December 2016 a lawyer in Attorney Vazanellis’s
law firm told him that Attorney Vazanellis had been suspended. That lawyer
then referred Petrovski to new counsel.
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[8] In January 2017, Petrovski retained new counsel, Andrew Crosmer, to take
over his case. On January 20, Attorney Crosmer filed a motion to substitute
counsel, an appearance, and an alias summons. Around the same time,
Neiswinger and State Farm learned, for the first time, about the lawsuit. On
January 26, an attorney entered an appearance on behalf of Neiswinger and
filed a motion to dismiss the complaint pursuant to Indiana Trial Rule 41(E) for
failure to prosecute. Neiswinger was served with the complaint and alias
summons on February 17, about twenty-two months after the complaint was
filed. Following a hearing,1 the trial court, in a two-sentence order, dismissed
the complaint for failure to prosecute “without prejudice.”2 Appellee’s App.
Vol. II p. 2.
[9] Petrovski now appeals.
1
According to the Notice of Completion of Clerk’s Record, Petrovski did not request a transcript of the
hearing.
2
Neiswinger also moved to dismiss the complaint pursuant to Indiana Trial Rule 12(B)(5) based on
insufficiency of service of process, and the trial court granted the motion on this ground as well. See
Appellee’s App. Vol. II p. 2. According to the parties, the trial court relied on Federal Rule of Civil
Procedure 4(m) in some respect. This rule provides that if the defendant is not served within ninety days
after the complaint is filed, the court must dismiss the action without prejudice or order that service be made
within a specified time. Because we were not provided with the transcript of the hearing, we do not know the
extent to which the trial court relied on this rule. In any event, we note that Indiana’s trial rules do not
contain the equivalent to Federal Rule of Civil Procedure 4(m). See Raisor v. Jimmie’s Raceway Pub, Inc., 946
N.E.2d 72, 77, 78 n.1 (Ind. Ct. App. 2011); 2 William F. Harvey & Stephen E. Arthur, Indiana Practice: Rules
of Procedure Annotated, § 15 (3d ed. Supp. 2016-17) (“Indiana does not have the service of process provisions
found in F.R.C.P. 4(m).”). Accordingly, because Neiswinger was ultimately served on February 17, 2017,
we do not affirm the trial court’s dismissal based on Trial Rule 12(B)(5). Moreover, Neiswinger’s only
argument on appeal is that the trial court properly dismissed the complaint pursuant to Trial Rule 41(E).
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Discussion and Decision
[10] Petrovski contends that the trial court abused its discretion in granting
Neiswinger’s Trial Rule 41(E) motion to dismiss for failure to prosecute. We
will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the
event of a clear abuse of discretion, which occurs if the trial court’s decision is
against the logic and effect of the facts and circumstances before it. Belcaster v.
Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. Trial Rule
41(E) provides in pertinent 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.
[11] “The purpose of this rule is to ensure that plaintiffs will diligently pursue their
claims. The rule provides an enforcement mechanism whereby a defendant, or
the court, can force a recalcitrant plaintiff to push his case to resolution.”
Belcaster, 785 N.E.2d at 1167 (quotation omitted). The burden of moving the
litigation forward is upon the plaintiff, not the court. Id. “It is not the duty of
the trial court to contact counsel and urge or require him to go to trial, even
though it would be within the court’s power to do so.” Id. (quotation omitted).
“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.” Id.; see also
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Geiger & Peters, Inc. v. Am. Fletcher Nat’l Bank & Tr. Co., 428 N.E.2d 1279, 1283
(Ind. Ct. App. 1981) (“T.R. 41(E) is an adequate mechanism for dismissing a
cause of action in which the complaint is timely filed but service of summons is
not perfected for an unreasonable length of time without just cause.”).
[12] In Indiana, courts must balance nine factors when determining whether to
dismiss a case for failure to prosecute: (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. Belcaster, 785 N.E.2d at 1167.
“The weight any particular factor has in a particular case appears to depend
upon the facts of that case.” Id. (quotation omitted). 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. Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016).
[13] There was no activity on the docket in this case from May 22, 2015, when
service was returned as “unsuccessful,” until January 20, 2017, when Attorney
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Crosmer filed a motion to substitute counsel, an appearance, and an alias
summons. This is a period of approximately twenty months. Although this is a
long period of time, Neiswinger did not know about the lawsuit during this time
because he had not been served; therefore, he did not have a lawsuit “hanging
over his head.” Factor 1 favors dismissal of the complaint for failure to
prosecute, but only slightly.
[14] The reason for the delay is that Attorney Vazanellis took no action in this
case—either negligently, lazily, or intentionally—and never informed Petrovski
that he was not taking any action. In fact, on August 25, 2016, the Indiana
Supreme Court suspended Attorney Vazanellis from the practice of law. When
Petrovski learned about Attorney Vazanellis’s suspension in December 2016, he
retained new counsel in January 2017. Although Petrovski had called Attorney
Vazanellis “about once a month” throughout 2016 to check on the status of his
case, he could have done more when he did not hear back from him. That is,
Petrovski could have visited Vazanellis’s law firm in person, called or visited
the court or its clerk’s office, contacted another attorney or employee at
Attorney Vazanellis’s firm, or retained another attorney sooner. Because the
general rule is that a client is bound by his attorney’s actions and inactions, see
McKinley, Inc. v. Skyllas, 77 N.E.3d 818, 823 (Ind. Ct. App. 2017) (in a case also
involving Attorney Vazanellis, concluding that Attorney Vazanellis’s
“misconduct, while deplorable, was attributable to his client for purposes of
Trial Rule 60(B)”), trans. denied, Factors 2-4 weigh in favor of dismissing the
complaint for failure to prosecute.
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[15] But the remaining factors, 5-9, favor allowing Petrovski to prosecute his
complaint. Neiswinger claims that the prejudice to him is “inherent[]” due to the
passage of time, but he cites no evidence that he has been prejudiced, such as the
unavailability of a specific witness. Appellee’s Br. p. 13. Although Neiswinger
claims that he and State Farm learned about the lawsuit for the first time in
January 2017, State Farm knew that Petrovski retained counsel less than two
weeks after the accident, which lessens any claim of prejudice. In addition, there
is only one period of delay (albeit a long one) in this case, and once Petrovski got
a handle on the situation, he retained new counsel, who filed an appearance and
put things in motion. Notably, Petrovski acted before Neiswinger filed the
motion to dismiss. Finally, there is a clear preference for deciding cases on the
merits. Although the trial court dismissed Petrovski’s complaint “without
prejudice,” Appellee’s App. Vol. II p. 2, because the statute-of-limitations period
in this case had already expired, Petrovski was unable to refile the complaint. See
Appellant’s Br. 9. Accordingly, the trial court’s dismissal operated as a dismissal
with prejudice.
[16] In sum, the weight any factor has depends upon the facts of the case. And
given the unique facts in this case, we find that the extreme remedy of dismissal
is not warranted. Accordingly, we conclude that the trial court abused its
discretion in granting Neiswinger’s Trial Rule 41(E) motion to dismiss for
failure to prosecute.
[17] Reversed and remanded.
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Mathias, J., and Crone, J., concur.
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