MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 27 2017, 11:42 am
this Memorandum Decision shall not be                                            CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer                                         ERIKA SCHAADT
James P. Barth                                            Jane E. Malloy
Pfeifer, Morgan & Stesiak                                 Ashley A. O’Neil
South Bend, Indiana                                       Malloy Law, LLC
                                                          Fort Wayne, Indiana
                                                          ATTORNEY FOR APPELLEE
                                                          PERSONAL CAREGIVERS, INC.
                                                          D/B/A VISITING ANGELS
                                                          Alastar S. McGrath
                                                          Kozacky Weitzel McGrath, P.C.
                                                          Chicago, Illinois



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis Hickey,                                            April 27, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          02A04-1611-CT-2672
        v.                                                Appeal from the Allen Superior
                                                          Court
Erika Schaadt and Personal                                The Honorable Stanley A. Levine,
Caregivers, Inc., d/b/a Visiting                          Judge
Angels,                                                   Trial Court Cause No.
Appellees-Defendants.                                     02D03-1310-CT-470




Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017                Page 1 of 9
      Bailey, Judge.



                                           Case Summary
[1]   Dennis Hickey (“Hickey”) was involved in an automobile accident with Erika

      Schaadt (“Schaadt”) and brought a personal injury suit against Schaadt and her

      employer, Personal Caregivers, Inc., d/b/a Visiting Angels (“Visiting Angels”).

      During the three years that the case was pending, Hickey was thrice non-

      compliant with discovery orders. The trial court granted an Indiana Trial Rule

      37 motion to exclude Hickey’s witnesses and, because Hickey would then be

      unable to prove his case, granted a Trial Rule 41(E) motion to dismiss. Hickey

      presents the issue of whether the trial court abused its discretion by imposing

      this extreme sanction. We reverse and remand.



                              Facts and Procedural History
[2]   On August 7, 2013, Hickey was driving a truck owned by his employer, Elkhart

      Transport Company (“Elkhart Transport”). As he neared the intersection of

      U.S. 33 and Hildebrand Road in Fort Wayne, he collided with a vehicle driven

      by Schaadt. Schaadt was en route to provide in-home services to a Visiting

      Angels client.


[3]   On October 15, 2013, Hickey filed a personal injury claim against Schaadt.

      Schaadt answered and filed a counterclaim against Hickey and a third-party

      claim against Elkhart Transport. Hickey amended his complaint to add Visiting


      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 2 of 9
      Angels as a defendant. After mediation, Schaadt’s claims were settled in

      November of 2014.


[4]   With respect to Hickey’s claim, the trial court entered a case management

      conference order on March 19, 2014. The parties were ordered to exchange a

      preliminary statement of contentions, witness list, and list of exhibits, and to file

      the same with the court by October 1, 2014. Hickey’s list – which he claimed to

      have mailed on October 2, 2014 – was filed-stamped on October 6, 2014.


[5]   In June of 2015, a pretrial conference was re-scheduled and the trial court

      entered an additional order requiring the parties to exchange and file their

      witness and exhibit lists on or before December 1, 2015. Hickey did not comply

      with this order.


[6]   The trial court conducted a pretrial conference on December 7, 2015 and

      entered a new order requiring that the parties exchange and file their witness

      and exhibit lists by October 1, 2016.1 Pursuant to the order, the witnesses were

      to be identified by a name, address, and telephone number, at a minimum.

      Additionally, the order provided:

                 Failure to comply with the witness and exhibit exchange order
                 will preclude presentation of such witnesses and exhibits at trial
                 upon objection of opposing counsel.




      1
          The lengthy delay was designed to accommodate efforts at mediation.


      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 3 of 9
      (App. Vol. II at 138.) Schaadt and Visiting Angels filed their lists on October 4,

      2016 and October 5, 2016, respectively. Hickey did not file his list by the

      deadline.


[7]   On October 28, 2016, Schaadt filed a motion to bar evidence and exclude

      witnesses. On November 3, 2016, the trial court granted the motion. On

      November 5, 2016, Visiting Angels filed a motion to dismiss pursuant to T.R.

      41(E). On November 7, 2016, Hickey filed a motion to reconsider the

      November 3, 2016 order. On November 11, 2016, Hickey filed a response to

      the motion to exclude evidence and motion to dismiss. He contended:

              The Plaintiff’s witnesses, exhibits, and contentions have not
              changed and Plaintiff did not wish to clutter this Court’s record
              with duplicative and redundant filings.


      (App. Vol. III at 83.) At the same time, Hickey filed his required list. Some of

      the items lacked requisite specificity.2 On November 14, Schaadt filed a motion

      to dismiss.


[8]   On November 15, 2016, the trial court conducted a hearing, at which argument

      was heard on the motions to dismiss. Hickey’s counsel conceded that he had

      been derelict in filing the requisite lists; two were late and one was not filed.

      However, counsel argued that the defendants were not prejudiced because




      2
       For example, Hickey listed among his witnesses “any physicians at Community Occupational Health who
      provided care and treatment to plaintiff” and “any physicians at the emergency department of Saint Joseph
      Regional Medical Center who provided care and treatment to plaintiff.” (App. Vol. III at 88-89.)

      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017          Page 4 of 9
       “nothing has changed.” (Tr. at 24.) The trial court observed that the failure to

       file was not a “technicality” but rather “a failure to follow an order of this

       court.” (Tr. at 26.) The trial court then granted the T.R. 41(E) motion to

       dismiss. This appeal ensued.



                                  Discussion and Decision
[9]    A trial court has inherent power to maintain its dignity, secure obedience to its

       process and rules, rebuke interference with the conduct of business, and punish

       unseemly behavior. Wright v. Miller, 989 N.E.2d 324, 331 (Ind. 2013). “Indiana

       Trial Rules 37 and 41 each provide the trial court with mechanisms to ensure

       compliance with the trial rules and obedience to its orders.” Id. at 327. Where

       the sanction imposed for discovery violations is dismissal, some overlap in the

       applicability of these rules may occur. Id. at 328. Trial Rule 37 permits a trial

       court to “make such orders … as are just,” including prohibiting the

       introduction of evidence while Trial Rule 41 specifically addresses only

       dismissal. Id. at 327. Here, after the trial court excluded Hickey’s witnesses as

       a Trial Rule 37 sanction, the trial court, in a subsequent order, dismissed

       Hickey’s complaint pursuant to T.R. 41(E).


[10]   Trial Rule 37 sanctions should not be imposed when circumstances make the

       sanctions unjust. Id. at 330. Particularly, in cases where the offending conduct

       is primarily attributable to counsel and not the client, and when prejudice to the

       opposing party is slight, due consideration should be given to sanctions directed

       primarily at counsel. Id. Such sanctions are imposed to minimize prejudice to

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 5 of 9
       the client and the merits of the case, while appropriately incentivizing proper

       future behavior of counsel. Id. In Wright, our supreme court recognized that, in

       the context of a Trial Rule 37 dismissal, where defendants were “well-aware” of

       a witness, his exclusion was inconsistent with the trial court’s duty to apply

       sanctions having a minimal effect on the evidence presented at trial and the

       merits of the case. Id. at 331. This informs our decision here.


[11]   Trial Rule 41(E) provides in relevant part:


               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.


       The rule applies to orders of the trial court. Farinelli v. Campagna, 166 Ind. App.

       587, 592, 338 N.E.2d 299, 302 (1975). A trial court has power to enforce a

       pretrial order and parties have a right to insist upon strict performance. Nichols

       v. Indiana State Highway Dep’t, 491 N.E.2d 227, 228 (Ind. Ct. App. 1986).


[12]   We review the trial court’s order of dismissal for an abuse of discretion. Office

       Environments v. Lake States Ins. Co., 833 N.E.2d 489, 493 (Ind. Ct. App. 2005).

       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 if the court

       has misinterpreted the law. Id. We have a preference toward deciding cases on



       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 6 of 9
       the merits; however, the trial court is better suited to determine whether

       dismissal is appropriate. Id. at 495.


[13]   To determine whether a Trial Rule 41(E) dismissal is an abuse of discretion, we

       generally balance factors including: (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. Office Environments, 833 N.E.2d

       at 494. The weight to be given to a particular factor depends upon the facts of

       the particular case. Id.


[14]   Hickey’s counsel filed the final witness and exhibits list thirty-eight days late.

       There is no indication that this was in any way attributable to his client, Hickey.

       However, Hickey was held accountable by imposition of the most stringent

       sanction available, dismissal of his case with prejudice and costs assessed to

       him. As for prejudice to the defendants, it appears that one defendant’s own

       diligence minimized the prejudice. Schaadt’s witness list designated by name,

       professional title, and professional address those health care providers who



       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 7 of 9
       treated Hickey. As for the historical conduct factor, we note that Hickey’s lack

       of diligence was not an isolated incident.


[15]   On the other hand, there would appear to be a variety of sanctions short of

       dismissal that could be employed to fairly reflect the transgressions. The

       relevant witnesses were identified, and thus there is no surprise or trial by

       ambush. Trial preparation is not likely to be significantly hindered when the

       anticipated witnesses have been identified, albeit due to the diligence of a

       defendant rather than the plaintiff. We reiterate that it is preferred that a case

       proceed to a resolution on the merits, where practicable.


[16]   As for the final factor, it appears that Hickey’s counsel was stirred to action

       only by the threat of dismissal. Indeed, he expressed his view that an additional

       filing of unchanged material was redundant. It does not appear that he

       intended to comply with the court order for a final witness list before the

       motion to exclude and motions to dismiss were filed.


[17]   Based upon the foregoing review of the factors relevant to a Trial Rule 41(E)

       dismissal, we are persuaded that the trial court abused its discretion by

       imposing the most stringent sanction possible. Its decision was predicated upon

       the earlier decision to exclude all of Hickey’s potential witnesses. However, the

       belated filing did not result in a surprise witness.


[18]   Hickey’s counsel should not be allowed to flout orders of the trial court. His

       failure to comply was blatant. Nonetheless, there is no indication that Hickey’s

       conduct caused a delay or omission of discovery materials so egregious that

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CT-2672 | April 27, 2017   Page 8 of 9
       dismissal was warranted. Here, we are confident that the trial court will be

       able to compel compliance and impose a proportional sanction short of

       exclusion of all witnesses and dismissal with prejudice.



                                               Conclusion
[19]   The trial court is not without remedies to directly address counsel’s dilatory

       approach, thereby minimizing prejudice to the client and allowing the case to

       proceed on the merits. Therefore, the court’s Trial Rule 37 order excluding all

       of plaintiff’s witnesses except for Hickey is, in this instance, an unjustified

       sanction where most, if not all, of the witnesses had been identified and whose

       addresses were known by the other parties to the proceedings. Thus, the Trial

       Rule 41(E) order of dismissal that ensued from the unjustified discovery

       sanction amounts to an abuse of the trial court’s discretion.


[20]   Reversed and remanded.


       Vaidik, C.J., and Robb, J., concur.




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