MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 03 2015, 9:47 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT
Patrick C. Badell
Rushville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Carol Hanquier and                                       March 3, 2015
Jose Hanquier,                                           Court of Appeals Case No.
                                                         55A05-1408-CT-375
Appellants,
                                                         Appeal from the Morgan Circuit
        v.                                               Court.
                                                         The Honorable Matthew G. Hanson,
                                                         Judge.
Joseph Hall and                                          Cause No. 55C01-1006-CT-648
Pekin Insurance,
Appellees




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A05-1408-CT-375 | March 3, 2015      Page 1 of 4
[1]   Carol and Jose Hanquier appeal the trial court’s order dismissing their

      complaint against Joseph Hall and Pekin Insurance. The trial court dismissed

      their complaint sua sponte pursuant to Trial Rule 41(E) without scheduling or

      holding a hearing on the matter. Finding that it was erroneous to dismiss the

      complaint without holding a hearing, we reverse and remand.


                                                      Facts
[2]   In June 2010, the Hanquiers filed a complaint against Hall and Pekin

      Insurance. The case was set for a pretrial hearing on June 5, 2014, and for a

      jury trial on June 16, 2014. On June 4, 2014, attorney Patrick Badell contacted

      John Richards, attorney for Joseph Hall. Badell told Richards that he had been

      retained by the Hanquiers, previously pro se, in this matter but would be unable

      to attend the June 5 pretrial hearing and had not yet filed an appearance.


[3]   At the June 5, 2014, pretrial hearing, Richards conveyed to the trial court that

      Badell had been retained but was unable to attend the hearing because of prior

      commitments. Richards told the court that he did not object to a continuance

      of the trial date to give Badell time to become familiar with the case. 1 The trial

      judge himself was also unavailable for the June 16 trial date.


[4]   Richards and the attorney for Pekin Insurance asked that the trial court set the

      matter for a Trial Rule 41(E) hearing, at which time argument could be heard




      1
       We commend attorney Richards for the collegiality and professionalism he exhibited at the June 5, 2014,
      pretrial hearing.

      Court of Appeals of Indiana | Memorandum Decision 55A05-1408-CT-375 | March 3, 2015             Page 2 of 4
      and evidence could be presented regarding dismissal of the complaint.

      Richards explicitly told the trial court that he was “reluctant” to request

      dismissal at the pretrial hearing and instead asked that another pretrial hearing

      and a Trial Rule 41(E) hearing be set. Appellant’s App. p. 13-14. At the close

      of the hearing, the trial court sua sponte dismissed the complaint for “failure to

      prosecute.” Id. at 16.


                                   Discussion and Decision
[5]   Trial Rule 41(E) provides that “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 a case.” (Emphasis

      added.) The plain language of the rule requires that a hearing be held before a

      case is dismissed for failure to prosecute. See also Rumfelt v. Himes, 438 N.E.2d

      980, 983-84 (Ind. 1982) (finding that trial court erred by dismissing complaint

      without ordering a hearing because “Trial Rule 41(E) clearly requires a hearing

      on a motion to dismiss”); Browning v. Walters, 620 N.E.2d 28, 32 (Ind. Ct. App.

      1993) (“Trial Rule 41(E) requires the court to order a hearing for the purpose of

      dismissing the case before it can dismiss the action with prejudice”).


[6]   When reviewing a dismissal for failure to prosecute, we must determine

      whether the trial court abused its discretion. Belcaster v. Miller, 785 N.E.2d

      1164, 1167 (Ind. Ct. App. 2003). To make this determination, multiple factors

      must be considered:




      Court of Appeals of Indiana | Memorandum Decision 55A05-1408-CT-375 | March 3, 2015   Page 3 of 4
              (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.
      Id. In this case, because no hearing was held, there is no evidence in the record

      whatsoever regarding any of these factors. We find that the trial court erred as

      a matter of law by dismissing the complaint for failure to prosecute without first

      holding a hearing on the issue.


[7]   The judgment of the trial court is reversed and remanded for further

      proceedings.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 55A05-1408-CT-375 | March 3, 2015   Page 4 of 4
