Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before              Nov 26 2014, 10:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

P. ADAM DAVIS                                      KEVIN L. MOYER
Davis & Sarbinoff, LLP                             Moyer & Irk, P.C.
Indianapolis, Indiana                              Lebanon, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

HARRIS AUTO RECONDITIONING                         )
SERVICES INC.,                                     )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )        No. 29A02-1312-PL-1085
                                                   )
BRIAN WOLFE,                                       )
                                                   )
       Appellee-Defendant,                         )
                                                   )

                     APPEAL FROM THE HAMILTON CIRCUIT COURT
                            The Honorable Paul A. Felix, Judge
                             Cause No. 29C01-1106-PL-5575



                                        November 26, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                       CASE SUMMARY

       On April 3, 2012, Appellee-Defendant Brian Wolfe served Appellant-Plaintiff Harris

Auto Reconditioning Services, Inc. (“Harris Auto”) with discovery consisting of twenty-three

interrogatories and ten requests for production. Harris Auto supplied its initial responses

eight months later on December 17, 2012. The trial court determined several portions of the

initial responses to be incomplete and evasive, and subsequently issued an order to compel

Harris Auto to sufficiently answer discovery. Harris Auto provided Wolfe with amended

responses to discovery sixteen days after the deadline set by the trial court in its order to

compel. Wolfe again alleged deficiencies with the responses and filed a motion to dismiss as

a discovery sanction pursuant to Indiana Trial Rule 37. After a hearing on the motion, the

trial court dismissed Harris Auto’s claims with prejudice. On appeal, Harris Auto argues that

the trial court abused its discretion by dismissing its claims. Finding that the trial court did

not abuse its discretion, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       On June 10, 2011, Harris Auto filed a verified complaint for damages and injunctive

relief against several individuals, including Wolfe. (App. 2) On April 3, 2012, Wolfe served

Harris Auto with discovery consisting of twenty-three interrogatories and ten requests for

production. (App. 5) On November 28, 2012, Wolfe filed a motion to dismiss for lack of

prosecution pursuant to Indiana Trial Rule 41, to which Harris Auto did not file a response.

(App. 6) On January 24, 2013, the trial court conducted a hearing on the motion to dismiss

which it subsequently denied. (App. 7) On December 17, 2012, Harris Auto provided Wolfe



                                               2
with its initial discovery responses. (App. 6) Wolfe alleged that Harris Auto’s initial

discovery responses were incomplete, evasive, and non-responsive, (Appellee’s Br. 4) and on

January 14, 2013, Wolfe filed a motion to compel Harris Auto to respond to Wolfe’s April 3,

2012 discovery requests. (App. 6) On February 4, 2014, the trial court granted Wolfe’s

motion to compel and ordered Harris Auto to “provide complete, full and non-evasive

responses to interrogatories numbers 5, 8, 10, 11-15, 19 and 22, and production requests

numbers 1-5 and 9” of Wolfe’s initial discovery request within fifteen days of the order.

Appellant’s App. p. 20

       On February 26, 2013, Harris Auto filed a motion for extension of time to comply

with the trial court’s order to compel, seeking to extend the deadline for compliance to March

1, 2013. (App. 7) Also on February 26, 2013, Wolfe filed a motion to dismiss pursuant to

Indiana Trial Rules 37(D) and 41(E) for failure to answer discovery requests and failure to

prosecute. (App. 7) On March 5, 2013, Wolfe received Harris Auto’s first amended

responses to the April 3, 2012 discovery requests. (Appellee’s Br. 3). Wolfe found that the

amended responses were again unresponsive and incomplete, several attachments were

mislabeled or entirely unlabeled, and the interrogatories were unsigned and, in several

instances, contained the same verbatim responses as the initial discovery responses.

(Appellee’s Br. 5, Tr. 6-15, 38) On March 6, 2013, Wolfe filed a supplement to his February

26, 2013 motion to dismiss, to which the trial court gave Harris Auto until March 15, 2013 to

respond. (App. 7) Harris Auto filed its response to the motion to dismiss on April 11, 2013.

(App. 8) The trial court scheduled a hearing on the motion to dismiss for May 13, 2013.



                                              3
(App. 8)

       Harris Auto claims that it emailed Wolfe a second amended set of responses to

discovery on March 15, 2013. (Appellant’s Br. 12-14) However, at the May 13, 2013 motion

to dismiss hearing, the parties discovered that Wolfe never received these responses because

the email attachments exceeded the size capacity at which the system could receive emails

(Wolfe’s counsel indicated that his computer system would not accept emails over twenty-

five megabytes). (Tr. 24-25, 35, Appellant’s Br. 15) On May 16, 2013, the trial court denied

Harris Auto leave to file the purported email as additional evidence. (App. 8, 43) On June

19, 2013, the trial court granted Wolfe’s motion to dismiss Harris Auto’s claims with

prejudice. (App. 9)

       On July 19, 2013, Harris Auto filed three post-dismissal motions: a verified motion to

correct errors, a motion to reconsider the trial court’s order granting Wolfe’s motion to

dismiss, and a motion to bar Wolfe’s counsel from seeking any future relief related to

discovery issues filed. (App. 9) A hearing was conducted on November 1, 2013, regarding

the post-dismissal motions. (App. 10, Tr. 43) On November 26, 2013, the trial court denied

Harris Auto’s motions for the following reasons:

       1.     On February 5, 2013, the Court GRANTED the Defendant’s Motion
              to Compel, which Ordered the Plaintiff to “provide complete, full and
              non-evasive responses to interrogatories numbers 5, 8, 10, 11-15, 19
              and 22, and production requests numbers 1-5 and 9 of Defendant’s
              initial, which discovery served on the Plaintiff on April 3, 1012 [sic],
              within fifteen (15) days of this order.”
       2.     Plaintiff failed to comply with the Court’s Order to Compel.
       3.     Eight (8) days after the due date, Plaintiff responded to the Court’s
              Order to Compel.
       4.     In his late response, the Plaintiff failed to attach numerous Exhibits


                                             4
              that he claimed were a part of the Discovery Response.
       5.     In his late response, the Plaintiff failed to comply with the Court’s
              Order to provide complete, full and non-evasive responses; to wit, he
              offered identical verbatim responses as he did in his first response to
              discovery objecting to the provision of information on the basis that it
              was irrelevant. In its Order to Compel, the Court specifically ordered
              him to provide the information. He failed to do so.
       6.     Mindful of the overarching goal of trying cases on their merits, the
              Court finds that the Plaintiff’s continued delays, failures to present
              requested discovery, and failure to comply with Court’s Orders, compel
              this Court to DISMISS this matter, as requested by the Defendant.
       7.     This Court does not find any error in its Order Granting Defendant’s
              Motion to Dismiss, filed on June 20, 2013. Plaintiff’s Motion to Correct
              Error is DENIED.
       8.     Based on the Court’s decision, the Court finds that Plaintiff’s Motion to
              Bar Defendant’s Counsel from Seeking Any Future Relief Related to
              Discovery Issues is moot. In the alternative, the Plaintiff failed to
              proffer any argument on this issue, and therefore it is denied as waived.

Appellant’s App. 12-13 (emphases in original). Harris Auto filed its notice of appeal on

December 27, 2013.

                             DISCUSSION AND DECISION

       The sole issue raised by Harris Auto on appeal is whether the trial court abused its

discretion when it dismissed Harris Auto’s claims as a discovery sanction pursuant to Indiana

Trial Rule 37. Trial Rule 37(B)(2) provides, in part, as follows:

       If a party … fails to obey an order to provide or permit discovery … the court
       in which the action is pending may make such orders in regard to the failure as
       are just, and among others the following: (c) … dismissing the action or
       proceeding or any part thereof, or rendering a judgment by default against the
       disobedient party.

Similarly, Trial Rule 37(D), in conjunction with Trial Rule 37(B)(2), grants the trial court the

ability to dismiss a party’s claim for failure to answer interrogatories.

                                    I. Standard of Review


                                               5
       This court has consistently held that “[t]he decision to impose the sanction of

dismissal for a party’s failure to comply with a discovery order is a matter within the trial

court’s discretion.” Pfaffenberger v. Jackson Cnty. Reg’l Sewer Dist., 785 N.E.2d 1180,

1183 (Ind. Ct. App. 2003) (citing Nesses v. Specialty Connectors Co., Inc., 564 N.E.2d 322,

327 (Ind. Ct. App. 1990)).

       The sole issue is whether the trial court abused its discretion by dismissing the
       Appellants’ complaint with prejudice as a discovery sanction pursuant to Ind.
       Trial Rule 37. The trial court has broad discretion in ruling on issues of
       discovery. Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind.
       Ct. App. 1997), reh’g denied, trans. denied. We will reverse only when the
       trial court has abused its discretion. Id. An abuse of discretion occurs when
       the trial court’s decision is clearly against the logic and effect of the facts and
       circumstances before the court, or when the trial court has misinterpreted the
       law. Trs. of Purdue Univ. v. Hagerman Const. Corp., 736 N.E.2d 819, 820
       (Ind. Ct. App. 2000), trans. denied.

Pfaffenberger, 785 N.E.2d at 1183.

                      II. Appropriateness of Discovery Sanctions

       This court has, on several occasions, been charged with reviewing the appropriateness

of dismissal as a discovery sanction. In Burns v. St. Mary Medical Center, 504 N.E.2d 1038,

1039 (Ind. Ct. App. 1987), Burns was served with interrogatories on July 12, 1985. On

August 21, 1985, Burns provided some partial answers which were unsigned. Id. On

December 27, 1985, Defendants moved for an order compelling discovery. Id. The trial

court granted the motion and gave Burns until March 15, 1986 to provide full and complete

answers. Id. Burns provided no further information and filed no request for an extension of

time before the March 15 deadline passed. Id. The trial court granted default judgment in

favor of defendants pursuant to Trial Rule 37. Id. In affirming the trial court, this court


                                               6
noted several facts pertinent to our decision: (1) Burns gave no reason why the

interrogatories could not have been answered on or before the deadline, (2) “[Burns] was

given an additional reasonable period within which to respond,” and (3) “no responses or

request for additional time was timely made.” Id.

       In Drew v. Quantum Systems, Inc., 661 N.E.2d 594 (Ind. Ct. App. 1996), Drew was

served with interrogatories and a request for production on October 25, 1993. After not

receiving a response, Quantum filed a motion to compel discovery on February 22, 1994. Id.

at 595. The Worker’s Compensation Board, which was overseeing the proceedings, granted

the motion and ordered Drew to answer interrogatories by April 15, 1994. Id. Drew did not

file answers to the interrogatories until August 16, 1994, approximately ten months after they

were originally served. Id. Ultimately, the Board granted Quantum’s motion to dismiss the

claim pursuant to Trial Rule 37. Id. On appeal, this court found that the Board did not abuse

its discretion in dismissing the claim. Id. at 596.

       In the instant case, Harris Auto’s conduct regarding discovery responses, or lack

thereof, repeatedly delayed proceedings. Initial discovery requests were served on Harris

Auto on April 3, 2012, and Harris Auto did not provide its initial responses until December

17, 2012, over eight months later. Despite the lengthy amount of time taken by Harris Auto

to assemble its initial responses, the trial court found the responses to be incomplete and

evasive, and subsequently granted Wolfe’s motion to compel, ordering Harris Auto to

provide adequate responses within fifteen days. As was the case in Burns, the trial court

gave Harris Auto additional time to provide responses during which “no responses or request



                                              7
for additional time was timely made” by Harris Auto. 504 N.E.2d at 1039. Eventually,

Harris Auto did file a motion for extension, albeit eight days after the deadline, as well as

amended responses, which were fifteen days late and unsigned. Harris Auto again made a

late filling when it submitted its responses to Wolfe’s motion to dismiss twenty-seven days

after the deadline set by the trial court.

       In addition to Harris Auto’s lack of timeliness, the trial court found the amended

responses to be “identical verbatim responses” to the initial responses. Appellant’s App. 12-

13. In the second amended responses1, Harris Auto responded to five interrogatories. In the

first three of those five answers, Harris Auto stated, “[o]bjection, irrelevant and unlikely to

lead to the discovery of admissible evidence,” despite the fact that the trial court had already

granted a motion to compel and ordered Harris Auto to answer these questions. Appellant’s

App. 91-92. In its final answer, Harris Auto stated, “[s]till working on gathering this

material as discovery moves forward,” notwithstanding the eleven month period it had to

garner such information. Appellant’s App. 93.

       Harris Auto argues that Wolfe’s counsel was uncooperative and hindered Harris

Auto’s ability to remedy deficiencies in its discovery responses. Specifically, Harris Auto

argues that it was unaware of the specific deficiencies identified by Wolfe due to

unwillingness to communicate on the part of Wolfe’s counsel. However, Harris Auto has

failed to include several important pieces of information in its appendix which has impeded

this court’s ability to verify the accuracy of this contention. Indiana Appellate Rule

50(A)(2)(f) provides that an appellant’s appendix shall include copies of “pleadings and other



                                               8
documents from the Clerk’s Record in chronological order that are necessary for resolution

of the issues raised on appeal.” At the hearing on the motion to dismiss, Wolfe contends that

the deficiencies were outlined in detail in his motion to compel discovery and again in his

supplemental motion to dismiss. (Tr. 30, App. 6) Because neither the motion to compel nor

the supplemental motion to dismiss are included in the Harris Auto’s Appendix, it is

impossible for this court to resolve the inconsistency.

       With the forgoing in mind, and without any evidence to the contrary, we have no

reason to question the trial court’s findings regarding the extent of Harris Auto’s discovery

misconduct. Based on that misconduct, we find that the trial court’s decision to dismiss was

consistent with this court’s previous decisions regarding Trial Rule 37 discovery sanctions.

Accordingly, we find that the trial court did not abuse its discretion in dismissing Harris

Auto’s claims as a discovery sanction under Indiana Trial Rule 37.

       The judgment of the trial court is affirmed.

NAJAM, J., and BAILEY, J., concur.




       1
           Harris Auto’s initial and first amended discovery responses were not in the record on appeal.

                                                      9
