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

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018   Page 3 of 8
      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

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018   Page 4 of 8
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018   Page 6 of 8
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1059 | October 18, 2018   Page 7 of 8
       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.




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