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

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. Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018 Page 1 of 8

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.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018 Page 2 of 8 [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.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018 Page 5 of 8 [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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