Rumfelt v. Himes

GARRARD, Judge. Herman C. Rumfelt and his wife, Patricia C. Rumfelt, appeal the trial court’s dismissal, under Indiana Rules of Procedure, Trial Rule 41(E), of their complaint for failure “to comply with the rules of civil procedure and the court’s orders thereunder.” On appeal, they ask if the court erred in granting the defendants’ joint motion to dismiss. We affirm. A review of pertinent portions of the record indicates that the Rumfelts filed their complaint on September 9, 1976. On January 25, 1977 they filed an amended complaint in which they sought injunctive and monetary relief from Himco Waste Away Services, Inc., CLD Corporation, Miles Laboratories, Inc., Elkhart General Hospital, Inc., Whitehall Laboratories, Josephine L. Cooper, Charles H. Himes and [471] Grace Himes. The Rumfelts sought to enjoin and abate the alleged nuisance created by Himco Waste Away when it allowed the commercial users of its service to dump soiled hospital supplies, toxic chemicals and hazardous wastes on land located near the Rumfelts’ home. Without burdening this opinion with a lengthy recitation of the pre trial sparring by all parties, it is sufficient to say that over the nearly four year course of the litigation, there were four attempted pre trial conferences and the Rumfelts had been ordered, several times, to submit revised claims supporting legal theories and witness lists. On April 15, 1980, after reviewing the Rumfelts’ proposed contentions which had been filed in response to an earlier order, the court concluded that the only viable cause of action available to them was one seeking damages on the basis of a private nuisance. It then ordered the Rumfelts to serve all of the defendants with a revised statement of their contentions, including elements of damage. The court also ordered them to provide each defendant with an updated witness and exhibit list within 45 days. On June 2, 1980 the Rumfelts filed their proposed contentions. Responding by filing a joint motion to dismiss on June 25, 1980, the defendants complained that the Rum-felts’ witness list was too general and that their revised contentions remained too vague to apprise them of what they would be required to defend against. They also pointed out that the Rumfelts had, several times, failed to comply with earlier court orders. Upon receipt of the motion to dismiss, the court ordered the plaintiffs “to show cause in writing if any there be why plaintiffs’ complaint herein should not be dismissed with prejudice to the plaintiffs on or before July 25, 1980.” On July 3, 1980 the Rumfelts filed a written response to the motion to dismiss which was in substance an argumentative denial. Later that same day, the court granted the defendants’ motion to dismiss and made the following finding: “The Court does now having considered the entire record and the proceedings herein and the motion to dismiss filed jointly by the defendants on June 25, 1980 and plaintiffs’ response thereto now considers that the plaintiff has failed to comply with the rules of civil procedure and the Court’s orders thereunder and that this action should be dismissed under Trial Rule 41(E) for failure to comply with rules. IT IS THEREFORE CONSIDERED AND ORDERED that plaintiff’s complaint herein be and the same is hereby dismissed with prejudice and with costs taxed to plaintiff.” Rumfelts raise two contentions on appeal. They urge that the court committed reversible error by failing to order and conduct an oral hearing before granting the dismissal. They also contend that it was error to grant a dismissal in the absence of an express determination that the parties, themselves, had been guilty of bad faith conduct. Trial Rule 41(E) provides: “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.” This section of the rules provides the vehicle for dismissing an action based upon failure to comply with the rules or when no action has been taken in a case for at least sixty (60) days. Farinelli v. Campagna (1975), 166 Ind.App. 587, 338 N.E.2d 299. While the triggering mechanism is the ordering of a hearing, the rule must be ap [472] plied in conjunction with TR 73. That rule provides: “To expedite its business the court may direct the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition . . . . ” In the case before us the trial court notified the parties that it proposed to resolve the motion in this fashion. It directed the filing of such a statement by appellants. They made no objection to the court’s order, made no request for an oral hearing, and did file their written response. There was no error in the court making its determination without conducting an oral hearing. Rumfelts’ remaining contentions which assert that they should not be penalized for their attorney’s actions, and that the sanction of dismissal was improper were all answered adversely to them in Farinelli v. Campagna, supra. We adhere to the views stated therein. We, therefore, affirm the judgment. HOFFMAN, P. J., concurs. STATON, J., dissents and files separate opinion.