                                                                                   FILED
                                                                              May 31 2017, 9:23 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEES
Kelly McGoffney                                           Attorneys for Margaret Ditteon
Terre Haute, Indiana                                      d/b/a Personal Resource
                                                          Management:
                                                          Mark D. Hassler
                                                          Jacob H. Miller
                                                          Hunt Hassler Kondras & Miller,
                                                          LLP
                                                          Terre Haute, Indiana
                                                          Attorneys for State of Indiana:
                                                          Curtis T. Hill, Jr.
                                                          Attorney General of Indiana
                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Estate of Carrie Etta Mills-                          May 31, 2017
McGoffney,                                                Court of Appeals Case No.
Appellant-Defendant,                                      84A01-1608-MI-1810
                                                          Appeal from the Vigo Superior
        v.                                                Court
                                                          The Honorable Hugh R. Hunt,
Vigo County Prosecutor, Terry                             Special Judge
Modesitt, Vigo County Adult                               Trial Court Cause No.
Protective Services, Jerry Hawk,                          84D02-1411-MI-8697
Angela Hall, and Margaret
Ditteon d/b/a Personal
Resource Management,


Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017                     Page 1 of 15
      Appellee-Defendant.




      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, the Estate of Carrie Etta Mills McGoffney (Estate) and

      Kelly McGoffney (McGoffney) as the Estate’s personal representative, appeal

      the trial court’s denial of a motion to reinstate their previously-dismissed case

      against Appellees-Defendants, Vigo County Prosecutor (Prosecutor), Vigo

      County Adult Protective Services (APS), and Margaret Ditteon d/b/a Personal

      Resource Management (Ditteon).


[2]   We affirm.


                                                    ISSUES
[3]   McGoffney, on behalf of the Estate, raises five issues on appeal, one of which

      we find dispositive and which we restate as: Whether the trial court abused its

      discretion by denying McGoffney’s Motion to Reinstate Original Proposed

      Complaint.



      Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 2 of 15
[4]   On cross-appeal, the Prosecutor, APS, and Ditteon raise one issue, which we

      restate as: Whether McGoffney’s appeal (or parts thereof) should be dismissed

      due to her failure to timely file a Notice of Appeal.


                      FACTS AND PROCEDURAL HISTORY
[5]   On November 20, 2012, Carrie Etta Mills McGoffney (Carrie) passed away.

      On December 3, 2012, her daughter, McGoffney, was appointed personal

      representative of Carrie’s Estate. Prior to her death, Carrie had been domiciled

      in and held property in Vigo County, Indiana.


[6]   On November 20, 2014, McGoffney, pro se, entered an appearance on behalf of

      the Estate and filed a Complaint for Damages against the Prosecutor, APS, and

      Ditteon/Personal Resource Management. In the Complaint, McGoffney

      alleged that, prior to Carrie’s death, the Prosecutor and APS became involved

      in a dispute over the guardianship of Carrie, and Ditteon was subsequently

      appointed to assume the care of Carrie against the wishes of certain family

      members, including McGoffney. According to McGoffney, as a result of

      actions by the Prosecutor, APS, and Ditteon, she was prohibited from having

      any contact with Carrie and was denied information on her whereabouts, only

      learning about Carrie’s death after the fact. McGoffney claimed that Ditteon

      had refused to seek necessary treatment for Carrie, which resulted in Carrie’s

      death. Accordingly, McGoffney, on behalf of the Estate, requested “to be

      compensated for [Carrie’s] injuries and death and damages from the

      aforementioned negligent acts to the extent permitted by law.” (Appellants’

      App. Vol. II, p. 19).
      Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 3 of 15
[7]   On January 6, 2015, the trial court recused itself and on January 14, 2015,

      transferred the matter to the presiding judge for assignment of a special judge.

      On January 20, 2015, McGoffney requested that the presiding judge also recuse

      and assign the case to the same special judge who was handling several other

      matters concerning the Estate. Instead, on January 23, 2015, the presiding

      judge appointed Judge Hugh Hunt of Sullivan County as special judge.


[8]   On January 23, 2015, after receiving an enlargement of time to respond,

      Ditteon filed an Answer. However, neither the Prosecutor nor APS filed a

      responsive pleading. Thus, on February 24, 2015, McGoffney filed a Motion

      for Default Judgment as to Certain Defendants. The next day, the Prosecutor

      and APS filed their Answer, which McGoffney moved to strike on March 6,

      2015, because they did not seek leave to belatedly file the Answer. On April 2,

      2015, the Prosecutor and APS filed a Motion to Strike Complaint. The

      Prosecutor and APS pointed out that McGoffney had signed the Complaint as

      the Estate’s personal representative and indicated that she was filing pro se.

      However, because the Complaint was filed on behalf of the Estate, the

      Prosecutor and APS insisted that a licensed attorney was required to file.

      Regarding their belated Answer, the Prosecutor and APS argued that

      “[b]ecause the [C]omplaint is a nullity, . . . there’s nothing to answer.”

      (Appellants’ App. Vol. II, p. 67).


[9]   On April 8, 2015, the trial court issued an Order Striking Complaint. Having

      determined that McGoffney’s Complaint should be stricken because it “was

      filed on behalf of an [E]state by a person who is not an attorney[,]” the trial

      Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017      Page 4 of 15
       court determined that there was no need for an answer. (Appellants’ App. Vol.

       II, p. 71). The trial court denied McGoffney’s Motion for Default Judgment as

       to Certain Defendants and provided until “May 8, 2015, to file an amended

       complaint, signed by counsel. If no amended complaint is filed, this action will

       be dismissed without further notice.” (Appellants’ App. Vol. II, p. 72). On

       April 10, 2015, Ditteon joined in the Prosecutor’s and APS’ Motion to Strike

       Complaint. On April 17, 2015, the trial court issued another Order, reiterating

       that McGoffney’s Complaint be stricken, as well as Ditteon’s Answer.


[10]   Thereafter, McGoffney retained counsel for the Estate. Instead of filing an

       amended complaint, the now-represented Estate, on April 21, 2015, filed a

       Motion for Reconsideration of Order Striking Complaint and Denying Default

       Judgment. Regarding McGoffney’s pro se filing, the Estate argued that “[n]o

       Indiana authority appears to have specifically addressed the issue . . . . A review

       of the Probate Code demonstrates that nothing affirmatively requires a personal

       representative to hire an attorney.” (Appellants’ App. Vol. II, p. 79).

       Furthermore, the Estate asserted that, pursuant to the Wrongful Death Act, a

       personal representative “may maintain an action” on behalf of the decedent.

       (Appellants’ App. Vol. II, p. 79). After filing this motion, the Estate’s attorney

       withdrew its representation upon leave from the trial court and, in doing so,

       requested that the trial court allow the Estate additional time to seek new

       counsel to file an amended complaint as originally directed. On April 28, 2015,

       the trial court denied the Estate’s Motion for Reconsideration of Order Striking

       Complaint and Denying Default Judgment. The trial court extended the


       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 5 of 15
       Estate’s deadline to June 1, 2015, to file an amended complaint, signed by

       counsel.


[11]   On May 27, 2015, McGoffney, again acting pro se for the Estate, filed a Motion

       for Final Entry of Judgment Denying Default Judgment; An Extension of Time

       to Amend the Original Complaint; and Motion for Change of Judge to the

       Indiana Supreme Court, which the trial court denied on June 1, 2015. On June

       10, 2015, McGoffney filed another motion for a change of judge and

       disqualification of Judge Hunt, as well as a Motion for Final Entry of Judgment

       for Order dated April 28, 2015. On June 17, 2015, the trial court set all of

       McGoffney’s pending motions for a hearing on July 1, 2015, in Sullivan

       County. Sua sponte, the trial court also set the matter for a dismissal hearing

       based on a failure to prosecute a case or comply with rules pursuant to Indiana

       Trial Rule 41(E).


[12]   On June 25, 2015, McGoffney filed a motion reiterating her requests to assign

       the case to the Indiana Supreme Court for appointment of a special judge, to

       continue the hearing to allow new counsel time to file an amended complaint,

       and for final entry of default judgment. In her motion, McGoffney claimed that

       she had a conflict and a disability that would preclude her from attending the

       hearing scheduled for July 1, 2015. In addition, she stated that the trial court

       “has only been practicing for four years and was recently elected to the bench

       with no experience and most likely has never presided over a Tort claim

       matter.” (Appellants’ App. Vol. II, p. 154). McGoffney further protested



       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 6 of 15
               [t]hat the [E]state has had other cases assigned to special judges
               and they always travel to Vigo County to appear for the hearing
               and don’t require that the [E]state travel to another county
               especially Sullivan where the [E]state would be in the minority.
               That with all of the racial issues that our country is facing, that
               the [E]state doesn’t feel as though they [sic] will receive a fair
               hearing and that the [trial court] is already being unfair, unbiased
               [sic] and impartial [sic] related to this matter in his rulings.


       (Appellants’ App. Vol. II, p. 154). Accordingly, McGoffney announced that

       she “refuse[d] to appear in any court proceedings until Judge Hunt recuses

       himself for a conflict of interest and professional misconduct related to this

       case.” (Appellants’ App. Vol. II, p. 154). The trial court denied this motion on

       June 26, 2015.


[13]   On June 29, 2015, McGoffney again notified the trial court that she would be

       unable to “travel to the hearing scheduled tomorrow due to having prior

       commitments that date, disabled and all hearings are held in Vigo County and

       not the court where the judge resides. The court had better not dismiss this case

       when I’m entitled to a default judgment.” (Appellants’ App. Vol. II, p. 152).

       McGoffney further added that “[d]ue to the judge’s inexperience, relationship

       with attorney in [the defendants’] law firm, relationship with [the prior trial

       court judge] and no access to a judge, jury or court of my peers it would be

       impossible to receive a fair trial in this county.” (Appellants’ App. Vol. II, p.

       152).


[14]   On July 1, 2015, the trial court conducted a hearing to consider McGoffney’s

       outstanding motions. However, McGoffney failed to appear for the Estate.

       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017    Page 7 of 15
       Therefore, the trial court denied all of McGoffney’s motions and, pursuant to

       Indiana Trial Rule 41(E), found that McGoffney had “failed to prosecute this

       action . . . an[d] thereby dismisse[d] this cause without prejudice pursuant to

       said rule at her costs.” (Tr. p. 5). McGoffney never appealed the dismissal.

       Rather, one year later, on July 1, 2016, McGoffney, on behalf of the Estate,

       filed a pro se Motion to Reinstate Original Proposed Complaint pursuant to

       Trial Rule 41(F). McGoffney again requested that the trial court grant the

       Estate default judgment against the Prosecutor and APS. She also sought a

       change of judge. On July 8, 2016, the trial court denied McGoffney’s Motion

       to Reinstate Original Proposed Complaint. The trial court further denied her

       motions for default judgment and for a change of judge.


[15]   On August 4, 2016, McGoffney filed a Notice of Appeal, which was amended

       on September 7, 2016, seeking review of the trial court’s July 8, 2016 denial of

       her Motion to Reinstate Original Proposed Complaint and motions for default

       judgment and a change of judge. On December 8, 2016, Ditteon filed a motion

       with our court to dismiss McGoffney’s appeal as having been untimely filed.

       On December 16, 2016, the Prosecutor also filed a motion for dismissal based

       on McGoffney’s failure to file a timely Notice of Appeal. On January 13, 2017,

       this court’s motions panel denied Ditteon’s and the Prosecutor’s motions.

       Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 8 of 15
                               DISCUSSION AND DECISION
                                              I. Dismissal of Appeal

[16]   The Prosecutor and ASP contend that McGoffney’s appeal should be dismissed

       due to her failure to timely appeal, and Ditteon agrees that certain issues are

       subject to dismissal. In order to initiate an appeal, a party must file a Notice of

       Appeal “within thirty (30) days after the entry of a Final Judgment is noted in

       the Chronological Case Summary.” Ind. Appellate Rule 9(A)(1). The failure

       to timely file a Notice of Appeal results in forfeiture of the appeal. Ind.

       Appellate Rule 9(A)(5). Although the right to appeal is forfeited, the failure to

       timely file a Notice of Appeal does not deprive our court of jurisdiction to

       entertain the appeal. In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014).

       Rather, the forfeited right may be restored for “extraordinarily compelling

       reasons.” Id.


[17]   In this case, the trial court dismissed the Estate’s case on July 1, 2015 without

       prejudice. Although a dismissal pursuant to Indiana Trial Rule 41(E) is a final

       appealable order, McGoffney did not appeal the dismissal or any of the trial

       court’s prior orders. Ind. Dep’t of Nat. Res. v. Ritz, 945 N.E.2d 209, 214 (Ind. Ct.

       App. 2011), trans. denied. Instead, one year after the trial court’s order of

       dismissal, McGoffney filed a Motion to Reinstate Original Proposed Complaint

       pursuant to Indiana Trial Rule 41(F), as well as motions to grant default

       judgment and change of judge.




       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017    Page 9 of 15
[18]   In State ex rel. Peoples Nat’l Bank & Trust Co. of Washington v. Dubois Circuit Court,

       233 N.E.2d 177, 178 (Ind. 1968), our supreme court stated that “a motion to

       reinstate will not take the place of an appeal nor toll the running of the time for

       an appeal.” We recognize that this case appears to have been decided before

       the enactment of Trial Rule 41(F), and the supreme court held that the failure to

       timely perfect an appeal deprived it of jurisdiction to consider the issue of

       reinstatement. Id. Notwithstanding subsequent changes in trial rules and case

       law regarding appellate jurisdiction, we agree that a motion for reinstatement

       does not toll the time for filing a Notice of Appeal to dispute the merits of

       matters finally decided. Yet, it is also clear that Trial Rule 41(F) contemplates

       that motions for reinstatement might be filed later than the typical thirty days

       for filing an appeal. Thus, when a motion for reinstatement is filed beyond the

       thirty-day mark for filing an appeal, we find that any subsequent appeal will

       pertain solely to whether the trial court abused its discretion in denying or

       granting the motion to reinstate.


[19]   In addition to challenging the trial court’s denial of her Motion to Reinstate

       Original Proposed Complaint, McGoffney also argues on appeal that the trial

       court erroneously struck her Complaint based on her pro se status and

       erroneously refused to grant her default judgment based on the failure of the

       Prosecutor and APS to timely file their Answer. We find that McGoffney has

       forfeited her right to appeal these issues because such matters were ruled upon

       more than a year prior to filing the instant appeal. Accordingly, we solely




       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017     Page 10 of 15
       consider whether the trial court abused its discretion by denying McGoffney’s

       Motion to Reinstate Original Proposed Complaint.


                          II. Reinstatement Pursuant to Indiana Trial Rule 41(F)

[20]   We review a trial court’s ruling on a motion to reinstate an involuntary

       dismissal using the abuse of discretion standard. Cloyd v. Pasternak, 791 N.E.2d

       757, 758 (Ind. Ct. App. 2003). “Judicial discretion has been defined as a

       judge’s privilege to decide and act in accordance with what is fair and equitable

       within the confines of justice.” Id. at 759. “Our review of an exercise of

       judicial discretion must be made in light of and confined to the facts and

       circumstances of a particular case.” Id. In other words, we will uphold the trial

       court’s decision unless it “is clearly against the logic and effect of the facts and

       circumstances before it or if the court has misinterpreted the law.” Natare Corp.

       v. Cardinal Accounts, Inc., 874 N.E.2d 1055, 1058 (Ind. Ct. App. 2007).


[21]   Pursuant to Indiana Trial Rule 41(E),


               [w]henever 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




       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017     Page 11 of 15
                upon such terms that the court in its discretion determines to be
                necessary to assure such diligent prosecution.[ 1]


       Indiana Trial Rule 41(F) states that “[f]or good cause shown and within a

       reasonable time the court may set aside a dismissal without prejudice.” 2 Our

       court has previously described the reinstatement of a case as “extraordinary

       relief.” Natare Corp., 874 N.E.2d at 1060. Accordingly, on appeal, we must

       determine whether McGoffney sought reinstatement within a reasonable time

       and whether she has established good cause to have the dismissal based on a

       failure to prosecute set aside.


[22]   McGoffney insists that the trial court never should have stricken her Complaint

       because there is no rule that precluded her from filing a pro se claim on behalf of

       the Estate as the personal representative, and she further argues that she was

       entitled to a default judgment based on the failure of the defendants to timely

       file responsive pleadings. However, the trial court did not dismiss McGoffney’s

       case based on the validity of her Complaint; rather, the trial court struck the




       1
         We must point out the complete lack of merit in McGoffney’s contention that the trial court failed to hold
       a dismissal hearing as required by this rule. The trial court specifically stated that it would be conducting a
       dismissal hearing on July 1, 2015, in conjunction with the hearing on McGoffney’s other motions.
       McGoffney clearly had notice of the hearing, and explicitly acknowledged that the trial court “had better not
       dismiss this case when I’m entitled to a default judgment.” (Appellants’ App. Vol. II, p. 152). Yet,
       McGoffney willfully refused to appear at the hearing. Thus, she is precluded from contending that the trial
       court failed to conduct such a hearing.
       2
         Indiana Trial Rule 41(F) also provides that when a case is dismissed with prejudice, such dismissal “may
       be set aside by the court for the grounds and in accordance with the provisions of [Indiana Trial] Rule 60(B)”
       (governing relief from judgment due to mistake, excusable neglect, newly discovered evidence, fraud, etc.).
       Because the trial court expressly dismissed McGoffney’s claim without prejudice, we do not “resort to” Trial
       Rule 60(B). Cloyd, 791 N.E.2d at 759.

       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017                           Page 12 of 15
       Complaint and declared answers thereto to be moot based on McGoffney’s pro

       se status. It was only after McGoffney failed to file an amended complaint and

       failed to appear at the dismissal hearing that the trial court dismissed the

       Estate’s case based on a failure to prosecute.


[23]   Although McGoffney offers no argument as to why she waited one year to file

       her Motion to Reinstate Original Complaint or as to why such a time period

       should be considered reasonable, she does assert that there is good cause to

       reinstate her case because she did not fail to prosecute. Specifically, she

       contends that she

               consistently and zealously continued to prosecute the original
               [C]omplaint by filing pleading after pleading until her matter was
               dismissed [o]n July 1, 2015[,] for failure to prosecute. In fact,
               leading up to the July 1, 2015 hearing on [the] motion to dismiss
               the complaint pursuant to [Rule] 41(E), . . . McGoffney filed
               numerous motions attempting to prosecute and defend the
               Estate’s position by requesting Change in Venue, Change in
               Judge, and reassignment of the case to the Indiana Supreme
               Court on June 10, 2015 for further review. All of . . .
               McGoffney’s attempts as personal representative to prosecute the
               claims were continually denied by the [c]ourt and finally
               dismissed on July 1, 2015.


       (Appellants’ Br. pp. 19-20).


[24]   Under Trial Rule 41(E), the trial court may dismiss if “no action has been taken

       . . . for a period of sixty (60) days.” We agree with McGoffney that she did not

       simply sit by idly while the clock ticked away on her case. Rather, she filed

       motions repeatedly seeking default judgment and a change of judge. However,

       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 13 of 15
       her Complaint had been stricken as of April 8, 2015, and, thereafter, no action

       was taken to either file an amended complaint or to appeal the merits of her

       Complaint being stricken based on her pro se filing. Rather, during the period

       that the Estate was briefly represented by counsel, only a motion to reconsider

       was filed, which the trial court denied. Thus, for nearly three months, there

       was no active complaint before the trial court in order for the trial court to even

       be able to address McGoffney’s related motions. Furthermore, McGoffney has

       offered no good cause as to why she did not attend the hearing on the dismissal.

       Instead, she explicitly, and inexplicably, informed the trial court that she

       refused to attend any additional proceedings so long as Judge Hunt continued

       to preside over the matter. Accordingly, we find that McGoffney has failed to

       establish good cause that her Complaint should be reinstated following a

       dismissal for failure to prosecute. 3


                                                CONCLUSION
[25]   Based on the foregoing, we conclude that McGoffney has forfeited her right to

       appeal all issues beyond the trial court’s denial of her Motion to Reinstate

       Original Proposed Complaint. We further conclude that the trial court acted




       3
         McGoffney also argues that her Complaint “is saved” by the Journey’s Account Statute, Indiana Code
       section 34-11-8-1. (Appellants’ Br. p. 21). This statute “provide[s] for continuation of a cause of action when
       a plaintiff fails to obtain a decision on the merits for some reason other than his or her own neglect and the
       statute of limitations period expires while the suit is pending.” Blackman v. Gholson, 46 N.E.3d 975, 980-81
       (Ind. Ct. App. 2015). In other words, the Journey’s Account Statute would permit McGoffney to “initiate a
       new action no later than three years after the failure or reversal of the cause of action.” Id. at 980. The
       statute expressly excludes “negligence in the prosecution of the action.” Ind. Code § 34-11-8-1(a)(1). Thus,
       this statute is not applicable in the present case where McGoffney’s case was dismissed based on her failure
       to prosecute.

       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017                          Page 14 of 15
       within its discretion in denying McGoffney’s Motion to Reinstate Original

       Complaint.


[26]   Affirmed.


[27]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 84A01-1608-MI-1810 | May 31, 2017   Page 15 of 15
