MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jul 25 2018, 9:03 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Matthew J. Elkin                                          AGRICOR, INC.
Kokomo, Indiana                                           H. Joseph Certain
                                                          Adrienne Rines
                                                          Kiley, Harker & Certain
                                                          Marion, Indiana

                                                          ATTORNEY FOR APPELLEE
                                                          STEINBERGER CONSTRUCTION,
                                                          INC.
                                                          Rebecca Maas
                                                          Smith Fisher Maas Howard &
                                                          Lloyd, P.C.
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE E&B
                                                          PAVING, INC.
                                                          Bruce P. Clark
                                                          Bruce P. Clark & Associates
                                                          St. John, Indiana

                                                          ATTORNEY FOR APPELLEE
                                                          KEITH SULLIVAN EXCAVATING,
                                                          INC.
                                                          Richard McMinn
                                                          The Law Offices of the Liberty
                                                          Mutual Group
                                                          Carmel, Indiana




Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018                           Page 1 of 11
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Teresa Parnell and Patrick                                July 25, 2018
      Parnell,                                                  Court of Appeals Case No.
      Appellants-Plaintiffs,                                    18A-CT-399
                                                                Appeal from the Grant Superior
              v.                                                Court
                                                                The Honorable Warren Haas,
      Agricor, Inc., Steinberger                                Judge
      Construction, Inc., E&B Paving,                           Trial Court Cause No.
      Inc., and Keith Sullivan                                  27D03-1502-CT-14
      Excavating, Inc.,
      Appellees-Defendants



      Crone, Judge.


                                              Case Summary
[1]   Teresa and Patrick Parnell (collectively “the Parnells”) filed a negligence action

      against Agricor, Inc. (“Agricor”), Steinberger Construction, Inc. (Steinberger”),

      E&B Paving, Inc. (“E&B”), and Keith Sullivan Excavating, Inc. (“Sullivan”)

      (collectively “Appellees”), stemming from water damage to their home

      allegedly attributable to negligent work that Appellees provided on an adjacent

      property. Two years later, the trial court dismissed the action for failure to

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018          Page 2 of 11
      prosecute, pursuant to Indiana Trial Rule 41(E). The Parnells now appeal,

      claiming that the trial court abused its discretion in doing so. Concluding that

      the trial court acted within its discretion in dismissing the Parnells’ action, we

      affirm.


                                  Facts and Procedural History
[2]   In 2013, the Parnells owned a residence in Marion. At that time, Agricor, the

      owner of an adjacent property, was undergoing an expansion project involving

      an addition to its facility and parking lot modification. Agricor hired

      Steinberger as general contractor for its project, and the subcontractors included

      Sullivan and E&B. On March 29, 2013, the Parnells’ property flooded after a

      significant rainfall, causing damage to their basement.


[3]   On February 24, 2015, the Parnells filed a tort action against Appellees,

      asserting negligent design, construction, and supervision of Agricor’s project,

      which allegedly resulted in the redirection and increased flow of water onto the

      Parnells’ property. In March and April 2015, Appellees filed separate

      appearances and responsive pleadings. From May 2, 2015, to February 15,

      2017, the chronological case summary (“CCS”) shows no entries/activity in the

      case. Appellants’ App. Vol. 2 at 6-7. On February 15, 2017, pursuant to Trial

      Rule 41(E), the trial court initiated proceedings to dismiss the case for failure to

      prosecute, setting a hearing for March 31, 2017. Three days before the

      scheduled hearing, the Parnells filed a motion to lift the Trial Rule 41(E)

      hearing, listing as reasons for the lack of activity in the case a fire at counsel’s

      office that resulted in the loss and reclamation of certain records, a tornado
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 3 of 11
      causing power outages at counsel’s temporary office, a water main break at the

      office, a lockdown and closure of the office due to a stalker, staff issues and

      absences, and counsel’s family health issues. Id. at 90-91. The trial court

      granted the Parnells’ motion and rescheduled the matter for a status hearing on

      September 8, 2017. Other than a couple entries for substitution of Agricor’s

      counsel, the CCS shows no activity during the ensuing five and a half months.


[4]   At the status hearing on September 8, 2017, E&B filed a motion to dismiss

      pursuant to Trial Rule 41(E). The Parnells filed a response, and the trial court

      set the matter for hearing. At the October 20, 2017 hearing, the remaining

      defendants joined E&B’s motion to dismiss. Counsel for the Parnells and the

      various defendants presented arguments, and the trial court instructed the

      parties to file proposed findings/orders.


[5]   On November 28, 2017, the trial court issued an order with findings of fact and

      conclusions thereon dismissing the Parnells’ negligence action for failure to

      prosecute. The Parnells do not specifically challenge any of the court’s

      findings, which read, in pertinent part,


              3. From May 1, 2015 through October 20, 2017, Plaintiffs only
              served discovery on Agricorp, [sic] but at no time did Plaintiffs
              serve discovery on the remaining Defendants.

              4. Plaintiffs have not taken any depositions in this case.

              ….

              7. On March 31, 2017, the Court accepted Plaintiffs’ reasons for
              failing to prosecute their case against Defendants. The Court
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 4 of 11
        lifted the T.R. 41(E) hearing and at Plaintiffs’ request set the
        matter for status conference on September 8, 2017.

        8. Plaintiffs undertook no action in the prosecution of their case
        between the first T.R. 41(E) notice on February 15, 2017 and the
        status conference of September 8, 2017.

        ….

        10. Plaintiffs’ stated reasons for objecting to Defendants’
        October 20, 2017 Motion to Dismiss are the same reasons given
        for lifting the Court’s Motion to Dismiss of March 30, 2017.

        11. Plaintiffs could not explain their failure to take any activity
        in the last two and 1/2 years, beyond those stated in March 2017,
        other than noting a lack of finances to retain experts and the
        argument that discovery provided by defendants was allegedly
        off-site for cleaning for a time, due to a fire.

        12. Plaintiffs’ counsel admitted that he never requested that any
        of the counsel of record provide the discovery again, nor did
        counsel for Plaintiffs advise they were unable to review the
        materials for any reason.

        13. Plaintiffs’ counsel admitted that no communication or
        correspondence has been sent requesting additional time, or
        requesting Defendants to recreate previous discovery responses,
        or voicing any issues with the construction of the law office of
        Plaintiff’s [sic] attorney.

        14. The period of Plaintiffs’ failure to prosecute this civil case
        greatly exceeds the sixty (60) days – which is the basis of a T.R.
        41(E) hearing.…

        15. Case law supports a T.R. 41(E) dismissal in cases where the
        Plaintiff does not prosecute the case in circumstances much less
        egregious than this. See, e.g. Olson v. Alick’s Drugs, Inc., [(Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018      Page 5 of 11
              App. 2007),] 863 N.E.2d 314, affirming dismissal after 6 months
              of inactivity; and Lee v. Pugh, (Ind. Ct. App. 2004), 811 N.E.2d
              881, affirming dismissal after 3 months of inactivity.

              16. Plaintiffs’ delay in prosecuting this case warrants dismissal as
              to all Defendants.

              ….

              19. …. Here, Plaintiffs were “threatened” with dismissal by this
              Court, on the Court’s own Motion in March 2017. Despite this,
              Plaintiffs did not take any action whatsoever.

              20. [T]his Court finds that Plaintiffs’ failure to take any action
              after the Court’s 41(E) hearing in March 2017 shows precisely
              the type of dilatory actions that Trial Rule 41 is intended to
              prevent.

              21. The explanation by Plaintiffs’ attorney for the failure [to]
              prosecute this civil action is without merit to justify this extended
              period of inaction.

              22. Plaintiffs did not identify any action or inaction on the part
              of Defendants delaying this matter or causing damage to
              Plaintiffs.


      Appellants’ App. Vol. 2 at 123-26.


[6]   The Parnells filed a motion to correct error, which the trial court denied. This

      appeal ensued. Additional facts will be provided as necessary.


                                     Discussion and Decision
[7]   The Parnells maintain that the trial court erred in dismissing their action for

      failure to prosecute and in denying their motion to correct error. We review
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 6 of 11
      involuntary dismissals and rulings on motions to correct error for an abuse of

      discretion, which occurs only where the trial court’s decision was against the

      logic and effect of the facts and circumstances before it. Gillespie v. Niles, 956

      N.E.2d 744, 747 (Ind. Ct. App. 2011) (dismissal for failure to prosecute);

      Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013) (ruling on motion to

      correct error). We will affirm if there is any evidence that supports the trial

      court’s decision. Gillespie, 956 N.E.2d at 747.


[8]   The trial court dismissed the Parnells’ negligence action pursuant to Indiana

      Trial Rule 41(E), which reads, in relevant part,


              [W]hen 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 purpose of Trial Rule 41(E) is to ensure that plaintiffs will diligently pursue

      their claims. Chapo v. Jefferson Cty. Plan Comm’n, 926 N.E.2d 504, 508 (Ind. Ct.

      App. 2010). “The burden of moving litigation forward is on the plaintiff, not

      the court.” Petrovski v. Neiswinger, 85 N.E.3d 922, 925 (Ind. Ct. App. 2017).

      Courts cannot be asked to carry cases on their dockets indefinitely, nor should

      adverse parties be left with a lawsuit hanging over their heads indefinitely.

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

      Rule 41(E) “provides an enforcement mechanism whereby a defendant, or the



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 7 of 11
       court[,] can force a recalcitrant plaintiff to push his case to resolution.” Chapo,

       926 N.E.2d at 508.


[9]    When determining whether to dismiss a case for failure to prosecute, a trial

       court balances nine factors:


               (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.


       Petrovski, 85 N.E.3d at 925. “Although Indiana does not require trial courts to

       impose lesser sanctions before applying the ultimate sanction of dismissal, we

       view dismissals with disfavor, and dismissals are considered extreme remedies

       that should be granted only under limited circumstances.” Id.


[10]   The Parnells’ property was flooded in 2013, and they filed their negligence

       action in February 2015. They never sought to depose any of the defendants,

       and served discovery only on Agricor, which was within two months of filing

       their complaint. The CCS indicates that the action lay dormant for nearly two

       years. See Appellants’ App. Vol. 2 at 6-7 (no entries between May 2, 2015 and

       February 15, 2017). Trial Rule 41(E) would have allowed the trial court or any

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 8 of 11
       one of the defendants to initiate dismissal proceedings after two months of

       inactivity. When the trial court initiated dismissal proceedings in February

       2017, the Parnells filed a motion to lift the Rule 41(E) proceedings, citing a loss

       of files due to a series of unfortunate events that had befallen plaintiffs’ counsel,

       i.e., an office fire, weather-related setbacks at the temporary office, staff issues,

       and family illness. The trial court granted the Parnells’ motion and extended the

       time to pursue their claims by nearly six months. As of the September 2017

       status hearing, the Parnells had neither proactively pursued discovery nor

       requested that the defendants re-submit any of their initial

       correspondence/filings.


[11]   Appellees jointly moved to dismiss for failure to prosecute. At the October

       2017 hearing on the dismissal proceedings, Appellees’ attorneys explained that

       they had no idea what was going on in the litigation or even what each of their

       clients had been accused of doing. Counsel for Sullivan described his client’s

       status as “sitting in limbo like everyone else …. and we’re still at the same place

       as when the suit was filed.” Tr. Vol. 1 at 14. With respect to plaintiffs’

       counsel’s loss of physical and digital files, Appellees’ attorneys emphasized that

       they easily could have re-submitted/re-served the files electronically, but they

       were not notified and replacements were never requested. Id. at 14, 15. In

       response, plaintiffs’ counsel stated,


               It wasn’t merely this case that we had to go through and do
               things with. Going back in my records … this is the oldest case
               that I have at my office, and we simply have to go through and
               find everything as it related to any individual files. And we did

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 9 of 11
               by basis of what were set for dates. When …you go through and
               you have that fire you go back I … agree that I could’ve sent
               letters to everyone. And I sit here and I think to myself, why
               didn’t I do that? And the answer is I just simply didn’t. I don’t
               have an explanation for that.… I need to obviously make this
               more of a priority.… In this particular case, whatever facts
               existed in 2013, they’re the same today. Nobody’s prejudice[d]
               by this delay[.]


       Id. at 16, 17. The court correctly reminded counsel that each defendant was

       retaining/paying counsel to defend the action and, in that sense, was prejudiced

       by the protracted delays and abject failure to communicate. Id. at 17.


[12]   Simply put, the Parnells’ delay in prosecuting their negligence action was

       exponentially longer than the sixty-day period provided in Trial Rule 41(E).

       The reasons for the delay, though initially attributable to circumstances beyond

       the Parnells’ and their counsel’s control, were not addressed even after the trial

       court initiated dismissal proceedings. The Parnells were stirred into action only

       to the extent of requesting a lift of the proceedings. The trial court, having then

       been made aware that the initial delays were due to counsel’s unusual

       challenges, took the less drastic route and afforded the Parnells an additional six

       months to show that they would push the case forward. It was their burden to

       do so, and they did not. See Petrovski, 85 N.E.3d at 925. Despite our preference

       for deciding cases on the merits, we conclude that the trial court acted within its

       discretion in dismissing the Parnells’ action for failure to prosecute and in

       denying their motion to correct error. Consequently, we affirm.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 10 of 11
[13]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-399 | July 25, 2018   Page 11 of 11
