MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 19 2017, 9:26 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jonathan A. Watson                                      Kristin R. Fox
Anderson, Agostino & Keller, P.C.                       Fox Law Firm
South Bend, Indiana                                     Mishawaka, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Devetta Myers n/k/a Devetta                             May 19, 2017
Farrow,                                                 Court of Appeals Case No.
Appellant-Defendant/Counter-Plaintiff,                  71A03-1609-CC-2206
                                                        Appeal from the St. Joseph
        v.                                              Superior Court
                                                        The Honorable Jenny Pitts Manier,
Chad Smith d/b/a Simple Home                            Judge
Improvements,                                           Trial Court Cause No.
Appellee-Plaintiff/Counter-Defendant,                   71D05-1012-CC-1324

        and

Michael Smith d/b/a Home
Connection,
Appellee/Third-Party Defendant




Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017           Page 1 of 10
                                               Case Summary
[1]   In 2010, Chad Smith d/b/a Simple Home Improvements (“Smith”) filed an

      action against Devetta Myers n/k/a Devetta Farrow (“Farrow”) on multiple

      legal theories including foreclosure of a mechanic’s lien and breach of contract

      based upon work, labor, and material Smith provided to Farrow for the

      rebuilding of a porch on a home she owned in St. Joseph County. Farrow

      subsequently filed a counterclaim against Smith and a third-party complaint

      against her prior contractor, Michael Smith d/b/a Home Connection (“Third-

      Party Defendant”), regarding separate work performed on the home. In 2016,

      after numerous discovery violations, violations of court orders, and other delays

      caused by Farrow, as well as a period of more than sixty days during which

      Farrow took no action on her claims, the trial court dismissed Farrow’s

      counterclaim and third-party complaint with prejudice pursuant to Indiana

      Trial Rule 41(E). Farrow now appeals claiming that the trial court abused its

      discretion in doing so. Finding no abuse of discretion, we affirm.


                                  Facts and Procedural History1
[2]   Beginning in October 2009, Smith performed construction work on property

      owned by Farrow pursuant to a written contract between the parties. When the

      work was completed, Farrow disagreed with the amount to be paid and did not




      1
       Farrow has provided us with a sparse record on appeal that contains virtually no factual background on this
      case or the course of the proceedings. Accordingly, much of the following facts and procedural history are
      based on the statement of the case section of Smith’s appellee’s brief. Farrow does not dispute the accuracy
      of the information provided by Smith.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017             Page 2 of 10
      pay the amount billed by Smith. Accordingly, Smith filed a mechanic’s lien

      against the property on October 10, 2010. Two months later, Smith filed suit

      against Farrow for foreclosure on the mechanic’s lien, breach of contract,

      complaint on account, unjust enrichment, and quantum meruit. Smith

      subsequently filed a motion for default judgment against Farrow. In January

      2011, the trial court entered a default judgment against Farrow for $8458.32

      plus costs.


[3]   In February 2011, Farrow moved to set aside the default judgment asserting

      that she did not receive actual notice of the action. The trial court granted

      Farrow’s motion and set aside the default judgment. Thereafter, Farrow filed a

      counterclaim against Smith and a third-party complaint for breach of contract

      against Third-Party Defendant.


[4]   The case did not proceed swiftly from there. Smith was forced to file numerous

      motions to compel against Farrow for discovery violations. The trial court

      granted many of those motions, issued orders to compel, and repeatedly

      sanctioned Farrow for her disregard of the trial rules and the court’s orders.

      Smith was required to institute proceedings supplemental on more than one

      occasion due to Farrow’s failure to pay the sanction judgments. In addition to

      requesting monetary sanctions, Smith also filed multiple motions requesting

      dismissal of Farrow’s counterclaim as a sanction. The trial court denied those

      motions but warned Farrow that her continued failure to comply with court

      orders could result in dismissal of her counterclaim and third-party complaint.

      Scheduled trial dates continually had to be reset due to Farrow’s failure to

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 3 of 10
      comply with discovery and, in 2015, Farrow failed to appear for a scheduled

      pre-trial conference hearing.


[5]   Finally, in July 2016, after a lengthy period of inactivity on the case, the trial

      court issued a notice of a pretrial conference hearing to be held on August 3,

      2016. The day before the hearing, Smith’s counsel called Farrow’s counsel’s

      office twice leaving messages with the receptionist and also leaving voicemail

      messages for counsel about wanting to discuss a possible agreement between

      the parties before the August 3 hearing. Smith’s counsel also provided Farrow’s

      counsel three emails about wanting to avoid the necessity of the hearing.

      Farrow’s counsel did not respond to Smith’s counsel. The following day, Smith

      appeared in person and by counsel, and Third-Party Defendant appeared in

      person and pro se, at the pretrial conference hearing. Neither Farrow nor her

      counsel appeared. Smith asked for a trial date on his complaint for January 12,

      2017, and made an oral motion for dismissal of Farrow’s counterclaim for

      failure to prosecute pursuant to Indiana Trial Rule 41(E). Third-Party

      Defendant also made an oral motion for dismissal of Farrow’s third-party

      complaint pursuant to Trial Rule 41(E). The trial court took the matter under

      advisement and later issued the following order:


              It appearing to the Court that no action has been taken by
              Counter Plaintiff/Third[-]Party Plaintiff on her claims for more
              than sixty (60) days, the Court now orders Counter
              Plaintiff/Third Party Plaintiff to appear on the 31[st] day of
              August, 2016 at 9:00 A.M. and show cause why her
              Counterclaim and her Third[-]Party Complaint should not be
              dismissed.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 4 of 10
      Appellant’s App. at 22.


[6]   Farrow’s counsel responded with a “Motion to Set Matter for Trial and

      Notification of Lack of Service” indicating that he did not have notice of the

      August 3 pretrial conference hearing because the notice was inadvertently sent

      by the court to Farrow’s former attorney. Farrow’s counsel further requested

      the court to set a trial date of January 12, 2017, for Farrow’s counterclaim and

      third-party complaint. Id. at 24. Farrow’s counsel also filed a motion

      requesting the trial court to order Smith to amend his complaint to add an

      additional party, and served discovery on Smith even though discovery had

      previously been ordered concluded by the trial court.


[7]   On August 31, 2016, the trial court held its rule to show cause hearing on

      Smith’s and Third-Party Defendant’s Trial Rule 41(E) motions to dismiss, as

      well as related matters. During the hearing, the trial court questioned Farrow’s

      counsel regarding his alleged lack of service regarding the notice of the August

      3, 2016, pretrial conference for which he and Farrow failed to appear. Farrow’s

      counsel admitted that despite the lack of service of the notice by the court, he

      did have actual notice of the hearing and planned to attend but that he “got

      stuck … on [his] way” to the hearing and missed it. Tr. at 11. Finding

      counsel’s motion alleging lack of service misleading, and his subsequent

      explanation for his absence disingenuous, and further concluding that

      “numerous delays in this case” had been caused by Farrow’s violation of

      discovery rules and noncompliance with court orders, the trial court dismissed



      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 5 of 10
      Farrow’s counterclaim and third-party complaint with prejudice. Appellant’s

      App. Vol. 2 at 21. This appeal ensued.2


                                           Discussion and Decision
[8]   Farrow appeals the trial court’s dismissal of her counterclaim and third-party

      complaint pursuant to Indiana Trial Rule 41(E). A trial court’s ruling on a

      Trial Rule 41(E) motion to dismiss is reviewed for an abuse of discretion. Ind.

      Dep’t of Nat. Res. v. Ritz, 945 N.E.2d 209, 213 (Ind. Ct. App. 2011), trans. denied.

      The trial court abuses its discretion when its decision is against the logic and

      effect of the facts and circumstances before it. Id. On appeal, we will affirm

      the trial court if any evidence supports its decision. Belcaster v. Miller, 785

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


[9]   Trial Rule 41(E) provides in relevant part,


                 Failure to prosecute civil actions or comply with rules.
                 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 purpose of this rule is to ensure that plaintiffs diligently pursue their

      claims and to provide an enforcement mechanism whereby a defendant, or the




      2
          Third-Party Defendant did not file a brief in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 6 of 10
       court, can force a recalcitrant plaintiff to push his case to resolution.” Olson v.

       Alick’s Drugs, Inc., 863 N.E.2d 314, 319 (Ind. Ct. App. 2007) (citation and

       quotation marks omitted), trans. denied. Indeed, the burden of moving the

       litigation forward is on the plaintiff, not the court or the defendant. Id. Trial

       Rule 41(E) grants the trial court discretion to dismiss a case for failure to

       prosecute and for violations of trial rules and orders of the court entered

       pursuant to the trial rules. See Wright v. Miller, 989 N.E.2d 324, 328 (Ind. 2013)

       (citing Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993)). “[W]hile

       the trial courts generally ‘fashion progressive sanctions leading up to a dismissal

       or default judgment when it is possible to do so, imposing intermediate

       sanctions is not obligatory when a party’s behavior is particularly egregious.’”

       Id. (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)). Stated

       another way, “the court need not impose a sanction less severe than dismissal

       where the record of dilatory conduct is clear.” Lee v. Friedman, 637 N.E.2d

       1318, 1321 (Ind. Ct. App. 1994).


[10]   In determining whether a trial court abused its discretion in dismissing an

       action pursuant to Trial Rule 41(E), we generally consider several 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

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 7 of 10
                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.


       Belcaster, 785 N.E.2d at 1167. 3 The weight any particular factor has in a case

       depends on the facts. Id.


[11]   Here, the underlying claim in this case was filed in 2010, Farrow’s counterclaim

       and third-party complaint were filed in 2011, and the matters have been

       pending before the trial court for more than five years. Farrow concedes that

       she played a part in a recent six-month period of inactivity in the case, and that

       “nothing of substance occurred” from January to July 2016, simply because

       “[b]oth parties were dilatory – neither conducted discovery, filed any motions,

       or sought hearings.” Appellant’s Br. at 5. She argues that because “the only

       remaining matter outstanding was a trial date … the parties were either equally

       prejudice[d], or not at all” by any delay in her prosecuting her claims and thus,

       the trial court’s dismissal of those claims was “too drastic.” Id. at 9, 14. These

       arguments downplay Farrow’s behavior and ignore the multitude of events

       leading up to the trial court’s determination that dismissal of her claims was

       warranted.



       3
         Our supreme court has noted that this analysis is applicable only to dismissals under Trial Rule 41(E) for
       failure to prosecute and not to dismissals for failure to comply with the trial rules and orders of the court,
       including discovery violations. See Wright, 989 N.E.2d at 328 n.4. Here, the trial court’s dismissal appears
       based both on Farrow’s failure to prosecute and on her violations of court orders and discovery violations.
       Thus, we will consider the factors.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017                 Page 8 of 10
[12]   The record indicates that Smith, Third-Party Defendant, and the trial court

       have tried to move this case along in an orderly fashion, only to be constantly

       and consistently interrupted by delays caused by Farrow. Her numerous

       discovery violations, noncompliance with court orders, and failures to appear

       frustrated the process and caused the court to continually reset scheduled trial

       dates. The trial court warned Farrow and attempted less drastic measures than

       dismissal of her claims on several occasions, apparently to no avail. After a

       recent period of inactivity, and in a final attempt to get all pending matters

       resolved, the trial court issued a notice ordering the parties to appear before the

       court on August 3, 2016. Neither Farrow nor her attorney appeared, and the

       trial court found counsel’s subsequent explanation for failing to appear and for

       causing yet another delay to be lacking in “candor” and “disingenuous, at

       best.” Appellant’s App. Vol. 2 at 20. Indeed, it was not until the trial court

       issued its rule to show cause why her claims should not be dismissed that

       Farrow was finally stirred into action, as opposed to her diligently pursuing her

       claims.


[13]   It is unquestionable that Farrow’s repeated discovery violations and lengthy

       history of having deliberately proceeded in a dilatory fashion weighs heavily in

       favor of the trial court’s determination that a Trial Rule 41(E) dismissal was

       warranted. Based upon the facts presented, we cannot say that the trial court’s

       dismissal of Farrow’s counterclaim and third-party complaint is against the

       logic and effect of the facts and circumstances before the court. Therefore, we

       affirm.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 9 of 10
[14]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CC-2206 | May 19, 2017   Page 10 of 10
