                                                                                        FILED
                                                                                    Oct 27 2017, 9:33 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Andrew A. Crosmer                                          Yolanda Cardona
      Daniel J. Zlatic                                           Employees of the Corporate Law
      Rubino, Ruman, Crosmer & Polen                             Department
      Dyer, Indiana                                              State Farm Mutual Automobile
                                                                 Insurance Company
                                                                 Crown Point, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tony Petrovski,                                            October 27, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 45A03-1706-CT-1412
              v.                                                 Appeal from the Lake Circuit
                                                                 Court
      Robert Neiswinger,                                         The Honorable Marissa J.
      Appellee-Plaintiff.                                        McDermott, Judge
                                                                 Trial Court Cause No.
                                                                 45C01-1504-CT-60



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Following a car accident, Tony Petrovski retained attorney Samuel G.

      Vazanellis to represent him. Attorney Vazanellis filed the complaint one day


      Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017                           Page 1 of 9
      before the statute-of-limitations period expired but did not serve the defendant.

      Once a month, Petrovski called Attorney Vazanellis to check on the status of

      his case, but Attorney Vazanellis never responded. Sixteen months after the

      complaint was filed, the Indiana Supreme Court suspended Attorney Vazanellis

      from the practice of law. Petrovski found out about the suspension several

      months later and hired new counsel, who then served the defendant. The

      defendant filed a motion to dismiss pursuant to Indiana Trial Rule 41(E) for

      failure to prosecute, which the trial court granted. The trial court indicated that

      its dismissal was “without prejudice,” but because the statute-of-limitations

      period had expired, Petrovski was barred from refiling.


[2]   Petrovski now appeals, arguing that the trial court erred in dismissing his

      complaint for failure to prosecute. Under the unique facts of this case, in

      particular Attorney Vazanellis’s complete abdication of his duties as an Indiana

      attorney and Petrovski’s inability to refile, we conclude that the trial court erred

      in dismissing Petrovski’s complaint. We therefore reverse and remand.



                             Facts and Procedural History
[3]   Petrovski and Robert Neiswinger were involved in a car accident on April 17,

      2013, in Lake County. Petrovski retained Attorney Vazanellis to represent him.

      Shortly after the accident, on April 29, Attorney Vazanellis faxed a letter to

      State Farm, Neiswinger’s insurer, stating that Neiswinger caused the accident

      and that Petrovski was being treated for his injuries. Attorney Vazanellis also

      requested a copy of Neiswinger’s insurance policy. The next day, State Farm

      Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 2 of 9
      responded to Attorney Vazanellis, indicating that it was “handling your client’s

      third party injury claim and will update our records to reflect your

      representation.” Appellant’s App. Vol. II p. 23.


[4]   On April 16, 2015—the day before the two-year statute-of-limitations period

      was set to expire—Petrovski, represented by Attorney Vazanellis, filed a

      complaint against Neiswinger. Attorney Vazanellis attempted to serve

      Neiswinger by certified mail on May 5, but it was returned on May 22 as

      “unsuccessful.” Id. at 6. Attorney Vazanellis did not attempt to re-serve

      Neiswinger.


[5]   According to Petrovski, he heard nothing about the status of his case “for

      months.” Id. at 42. “After some time,” Petrovski decided to contact Attorney

      Vazanellis. Id. “Throughout 2016” Petrovski called Attorney Vazanellis

      “about once a month,” but Attorney Vazanellis “never responded to any of

      [his] inquiries.” Id.


[6]   On August 25, 2016, about sixteen months after Petrovski’s complaint was

      filed, the Indiana Supreme Court suspended Attorney Vazanellis from the

      practice of law effective immediately. See In re Samuel G. Vazanellis, No. 45S00-

      1606-DI-330 (Ind. Aug. 25, 2016); see also In re Vazanellis, No. 45S00-1606-DI-

      330 (Ind. Feb. 27, 2017) (making suspension indefinite).


[7]   According to Petrovski, in December 2016 a lawyer in Attorney Vazanellis’s

      law firm told him that Attorney Vazanellis had been suspended. That lawyer

      then referred Petrovski to new counsel.

      Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 3 of 9
[8]   In January 2017, Petrovski retained new counsel, Andrew Crosmer, to take

      over his case. On January 20, Attorney Crosmer filed a motion to substitute

      counsel, an appearance, and an alias summons. Around the same time,

      Neiswinger and State Farm learned, for the first time, about the lawsuit. On

      January 26, an attorney entered an appearance on behalf of Neiswinger and

      filed a motion to dismiss the complaint pursuant to Indiana Trial Rule 41(E) for

      failure to prosecute. Neiswinger was served with the complaint and alias

      summons on February 17, about twenty-two months after the complaint was

      filed. Following a hearing,1 the trial court, in a two-sentence order, dismissed

      the complaint for failure to prosecute “without prejudice.”2 Appellee’s App.

      Vol. II p. 2.


[9]   Petrovski now appeals.




      1
       According to the Notice of Completion of Clerk’s Record, Petrovski did not request a transcript of the
      hearing.
      2
        Neiswinger also moved to dismiss the complaint pursuant to Indiana Trial Rule 12(B)(5) based on
      insufficiency of service of process, and the trial court granted the motion on this ground as well. See
      Appellee’s App. Vol. II p. 2. According to the parties, the trial court relied on Federal Rule of Civil
      Procedure 4(m) in some respect. This rule provides that if the defendant is not served within ninety days
      after the complaint is filed, the court must dismiss the action without prejudice or order that service be made
      within a specified time. Because we were not provided with the transcript of the hearing, we do not know the
      extent to which the trial court relied on this rule. In any event, we note that Indiana’s trial rules do not
      contain the equivalent to Federal Rule of Civil Procedure 4(m). See Raisor v. Jimmie’s Raceway Pub, Inc., 946
      N.E.2d 72, 77, 78 n.1 (Ind. Ct. App. 2011); 2 William F. Harvey & Stephen E. Arthur, Indiana Practice: Rules
      of Procedure Annotated, § 15 (3d ed. Supp. 2016-17) (“Indiana does not have the service of process provisions
      found in F.R.C.P. 4(m).”). Accordingly, because Neiswinger was ultimately served on February 17, 2017,
      we do not affirm the trial court’s dismissal based on Trial Rule 12(B)(5). Moreover, Neiswinger’s only
      argument on appeal is that the trial court properly dismissed the complaint pursuant to Trial Rule 41(E).

      Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017                        Page 4 of 9
                                   Discussion and Decision
[10]   Petrovski contends that the trial court abused its discretion in granting

       Neiswinger’s Trial Rule 41(E) motion to dismiss for failure to prosecute. We

       will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the

       event of a clear abuse of discretion, which occurs if the trial court’s decision is

       against the logic and effect of the facts and circumstances before it. Belcaster v.

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

       41(E) provides in pertinent 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.


[11]   “The purpose of this rule is to ensure that plaintiffs will diligently pursue their

       claims. The rule provides an enforcement mechanism whereby a defendant, or

       the court, can force a recalcitrant plaintiff to push his case to resolution.”

       Belcaster, 785 N.E.2d at 1167 (quotation omitted). The burden of moving the

       litigation forward is upon the plaintiff, not the court. Id. “It is not the duty of

       the trial court to contact counsel and urge or require him to go to trial, even

       though it would be within the court’s power to do so.” Id. (quotation omitted).

       “Courts cannot be asked to carry cases on their dockets indefinitely and the

       rights of the adverse party should also be considered. [The adverse party]

       should not be left with a lawsuit hanging over his head indefinitely.” Id.; see also

       Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 5 of 9
       Geiger & Peters, Inc. v. Am. Fletcher Nat’l Bank & Tr. Co., 428 N.E.2d 1279, 1283

       (Ind. Ct. App. 1981) (“T.R. 41(E) is an adequate mechanism for dismissing a

       cause of action in which the complaint is timely filed but service of summons is

       not perfected for an unreasonable length of time without just cause.”).


[12]   In Indiana, courts must balance nine factors when determining whether to

       dismiss a case for failure to prosecute: (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. Belcaster, 785 N.E.2d at 1167.

       “The weight any particular factor has in a particular case appears to depend

       upon the facts of that case.” Id. (quotation omitted). 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. Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016).


[13]   There was no activity on the docket in this case from May 22, 2015, when

       service was returned as “unsuccessful,” until January 20, 2017, when Attorney

       Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 6 of 9
       Crosmer filed a motion to substitute counsel, an appearance, and an alias

       summons. This is a period of approximately twenty months. Although this is a

       long period of time, Neiswinger did not know about the lawsuit during this time

       because he had not been served; therefore, he did not have a lawsuit “hanging

       over his head.” Factor 1 favors dismissal of the complaint for failure to

       prosecute, but only slightly.


[14]   The reason for the delay is that Attorney Vazanellis took no action in this

       case—either negligently, lazily, or intentionally—and never informed Petrovski

       that he was not taking any action. In fact, on August 25, 2016, the Indiana

       Supreme Court suspended Attorney Vazanellis from the practice of law. When

       Petrovski learned about Attorney Vazanellis’s suspension in December 2016, he

       retained new counsel in January 2017. Although Petrovski had called Attorney

       Vazanellis “about once a month” throughout 2016 to check on the status of his

       case, he could have done more when he did not hear back from him. That is,

       Petrovski could have visited Vazanellis’s law firm in person, called or visited

       the court or its clerk’s office, contacted another attorney or employee at

       Attorney Vazanellis’s firm, or retained another attorney sooner. Because the

       general rule is that a client is bound by his attorney’s actions and inactions, see

       McKinley, Inc. v. Skyllas, 77 N.E.3d 818, 823 (Ind. Ct. App. 2017) (in a case also

       involving Attorney Vazanellis, concluding that Attorney Vazanellis’s

       “misconduct, while deplorable, was attributable to his client for purposes of

       Trial Rule 60(B)”), trans. denied, Factors 2-4 weigh in favor of dismissing the

       complaint for failure to prosecute.


       Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 7 of 9
[15]   But the remaining factors, 5-9, favor allowing Petrovski to prosecute his

       complaint. Neiswinger claims that the prejudice to him is “inherent[]” due to the

       passage of time, but he cites no evidence that he has been prejudiced, such as the

       unavailability of a specific witness. Appellee’s Br. p. 13. Although Neiswinger

       claims that he and State Farm learned about the lawsuit for the first time in

       January 2017, State Farm knew that Petrovski retained counsel less than two

       weeks after the accident, which lessens any claim of prejudice. In addition, there

       is only one period of delay (albeit a long one) in this case, and once Petrovski got

       a handle on the situation, he retained new counsel, who filed an appearance and

       put things in motion. Notably, Petrovski acted before Neiswinger filed the

       motion to dismiss. Finally, there is a clear preference for deciding cases on the

       merits. Although the trial court dismissed Petrovski’s complaint “without

       prejudice,” Appellee’s App. Vol. II p. 2, because the statute-of-limitations period

       in this case had already expired, Petrovski was unable to refile the complaint. See

       Appellant’s Br. 9. Accordingly, the trial court’s dismissal operated as a dismissal

       with prejudice.


[16]   In sum, the weight any factor has depends upon the facts of the case. And

       given the unique facts in this case, we find that the extreme remedy of dismissal

       is not warranted. Accordingly, we conclude that the trial court abused its

       discretion in granting Neiswinger’s Trial Rule 41(E) motion to dismiss for

       failure to prosecute.


[17]   Reversed and remanded.



       Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 8 of 9
Mathias, J., and Crone, J., concur.




Court of Appeals of Indiana | Opinion 45A03-1706-CT-1412 | October 27, 2017   Page 9 of 9
