Pursuant to Ind.Appellate Rule 65(D),                         FILED
this Memorandum Decision shall not                          Aug 10 2012, 8:28 am
be regarded as precedent or cited
before any court except for the purpose                            CLERK
                                                                 of the supreme court,

of establishing the defense of res                               court of appeals and
                                                                        tax court


judicata, collateral estoppel, or the law
of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THEODORE L. STACY                                JANET A. MCSHARAR
Valparaiso, Indiana                              STEPHEN E. ARTHUR
                                                 ALBERT BARCLAY WONG
                                                 Harrison & Moberly, LLP
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


THE ESTATE OF ROSE GRAVES,                       )
                                                 )
        Appellant-Plaintiff,                     )
                                                 )
               vs.                               )       No. 45A03-1112-CT-560
                                                 )
ANONYMOUS NURSING HOME,                          )
                                                 )
        Appellee-Defendant.                      )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Diana Kavadias Schneider, Judge
                               Cause No. 45D01-0811-CT-87


                                       August 10, 2012

                 OPINION ON REHEARING – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       The Estate of Rose Graves (“Estate”) files a petition for rehearing, following our

decision in Estate of Graves v. Anonymous Nursing Home, No. 45A03-1112-CT-560

(Ind. Ct. App. May 30, 2012).        The Estate argues that we failed to address three

arguments it presented on appeal. We grant the Estate’s petition for rehearing but again

affirm the trial court’s order dismissing the Estate’s action against Anonymous Nursing

Home (“Nursing Home”).

       The Estate argues that we did not address three issues raised in its brief: (1)

subject matter jurisdiction of the trial court to enforce time-based constraints on the

Estate’s proposed medical malpractice claim; (2) subject matter jurisdiction to enter a

discovery sanction when no motion to compel had been brought by the Nursing Home;

and (3) the appropriateness of the dismissal as a discovery and/or failure to prosecute

sanction.

       The Estate’s first two arguments concern subject matter jurisdiction. A search of

the Estate’s appellant and reply briefs reveals that the Estate never mentioned the phrase

“subject matter jurisdiction” in either brief. In fact, the word “jurisdiction” was never

mentioned in the appellant’s brief and is briefly mentioned in the reply brief. The Estate

correctly argues that subject matter jurisdiction cannot be waived. See Town Council of

New Harmony v. Parker, 726 N.E.2d 1217, 1223 n.8 (Ind. 2000). However, subject

matter jurisdiction is not implicated here.

       Subject matter jurisdiction is the power to hear and determine cases of the general

class to which any particular proceeding belongs. K.S. v. State, 849 N.E.2d 538, 540

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(Ind. 2006). The ruling here was the result of the Nursing Home filing a motion for

preliminary determination. Indiana Code Section 34-18-11-1(a) provides:

              A court having jurisdiction over the subject matter and the
              parties to a proposed complaint filed with the commissioner
              under this article may, upon the filing of a copy of the
              proposed complaint and a written motion under this chapter,
              do one (1) or both of the following:

              (1) preliminarily determine an affirmative defense or issue of
              law or fact that may be preliminarily determined under the
              Indiana Rules of Procedure; or

              (2) compel discovery in accordance with the Indiana Rules of
              Procedure.

There is no dispute that the trial court here had the power to hear and determine a motion

for preliminary determination in this action.

       The basis for the Estate’s arguments on appeal was that the trial court could not

dismiss its claim for failure to prosecute or discovery violations because the trial court

action had been stayed. On appeal, we noted that the Estate never made those arguments

to the trial court. The Estate’s arguments concern more of a procedural error than an

actual subject matter jurisdiction issue, see K.S., 849 N.E.2d at 542, and the arguments

were waived by failure to raise them to the trial court.

       Next, the Estate argues that we failed to address the appropriateness of the

dismissal as a discovery and/or failure to prosecute sanction. Without engaging in any

analysis of the issue in appellant’s brief, reply brief, or the petition for rehearing, the

Estate cites Whitaker v. Becker, 946 N.E.2d 51 (Ind. Ct. App. 2011), vacated by




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Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012), for the proposition that a trial court

should warn a party before dismissing for a discovery violation.1

        In dismissing the Estate’s complaint, the trial court made findings concerning the

Estate’s failure to create a medical review panel, failure to provide timely or adequate

discovery responses, and failure to show good cause for its actions or lack thereof. The

trial court’s conclusions specifically mentioned the Estate’s failure to prosecute the action

and Indiana Trial Rule 41(E). The Estate did not dispute at the trial court level the

applicability of Indiana Trial Rule 41(E).

        For dismissals under Trial Rule 41(E) for failure to prosecute, the following

standard applies:

                        Courts of review generally balance several factors
                 when determining whether a trial court abused its discretion
                 in dismissing a case for failure to prosecute. These factors
                 include: (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
1
  Whitaker concerned the dismissal of an action for discovery violations. One day after the Estate filed its
appellant’s brief, our supreme court granted transfer in Whitaker and held that the trial court was entitled
to dismiss the action. The court noted:

                 We assign the selection of an appropriate sanction for a discovery
                 violation to the trial court’s sound discretion. McCullough v. Archbold
                 Ladder Co., 605 N.E.2d 175 (Ind. 1993). Trial judges stand much closer
                 than an appellate court to the currents of litigation pending before them,
                 and they have a correspondingly better sense of which sanctions will
                 adequately protect the litigants in any given case, without going
                 overboard, while still discouraging gamesmanship in future litigation.
                 We therefore review a trial court’s sanction only for an abuse of its
                 discretion. Id. at 180-81.

Whitaker, 960 N.E.2d at 115. The court further held that, “[a]lthough the regular practice is to fashion
progressive sanctions leading up to a dismissal or default judgment when it is possible to do so, imposing
intermediate sanctions is not obligatory when a party’s behavior is particularly egregious.” Id. at 116.
Thus, even if the trial court dismissed due to the discovery violations, it was within its discretion to do so.
                                                      4
              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. Lee v. Friedman, 637 N.E.2d
              1318, 1320 (Ind. Ct. App. 1994). “The weight any particular
              factor has in a particular case appears to depend upon the
              facts of that case.” Id. However, a lengthy period of
              inactivity may be enough to justify dismissal under the
              circumstances of a particular case, especially if the plaintiff
              has no excuse for the delay. Id.

Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. Under

this standard, the trial court did not abuse its discretion by dismissing the Estate’s action

given its lengthy period of inaction and failure to explain the delay.

       Although we grant the Estate’s petition for rehearing, we affirm the dismissal of

the Estate’s complaint against Nursing Home.

FRIEDLANDER, J., and MAY, J., concur.




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