Farinelli v. Campagna

• Decision Date: 20 November 1975
• Docket Number: No. 3--274A25,3--274A25
• Citation: 338 N.E.2d 299,166 Ind.App. 587
• Parties: Furi FARINELLI, Plaintiff-Appellant, v. E. A. CAMPAGNA, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 299

338 N.E.2d 299

166 Ind.App. 587

Furi FARINELLI, Plaintiff-Appellant, v. E. A. CAMPAGNA, Defendant-Appellee.

No. 3--274A25.

Court of Appeals of Indiana, Third District.

Nov. 20, 1975.

Harold Abrahamson, Kenneth D. Reed, Joseph P. Allegretti, James K. Whitaker, Hammond, for plaintiff-appellant.

Lester Murphy, Jr., East Chicago, for defendant-appellee; Murphy, McAtee, Murphy & Costanza, East Chicago, of counsel.

GARRARD, Judge.

From the record it appears that appellant Farinelli was injured in an industrial accident on March 13, 1967. He was treated by the appellee, Dr. Campagna. On March 14, 1969, he commenced suit against Campagna for damages. The complaint alleged, in general terms, medical malpractice.

On September 12, 1973, the trial court dismissed the action in response to Campagna's motion. This motion asserted lack of prosecution, failure to comply with discovery requests, and failure to comply with an order entered by the trial court at the close of an aborted pretrial conference.

The propriety of that dismissal is the issue on appeal.

Before turning to the specific details of the case, we think it worthwhile to examine the law applicable to such dismissals.

Indiana decisions have long affirmed the ability of a trial court to dismiss a pending action for want of prosecution. See, e.g., Cabinet Makers Union v. City of Indianapolis (1896), 145 Ind. 671, 44 N.E. 757; Rogers v. Youngblood (1948), 226 Ind. 165, 78 N.E.2d 663; Swain v. City of Princeton (1970), 147 Ind.App. 174, 259 N.E.2d 440.

The basis for such authority arises from the administrative discretion vested in a trial court in the conduct of its business. Rogers, supra. As the United States Supreme Court observed in Link v. Wabash R. Co. (1962), 370 U.S. 626, 629, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734:

'The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the (courts).'

The exercise of such administrative power is not a matter of massaging the ego of either trial or appellate judges who may harbor a penchant for orderliness nor is it intended to display the quantum of power they possess over the affairs brought before them.

Obviously, where the court's time is scheduled for conference, hearing or trial, last-moment cancellations will rarely permit the substitution of other matters involving the presence of parties or opposing counsel.

The major function to be served is perhaps more subtle.

Lawyers are, and hopefully will always remain, a reflection of the humanity around them. From such humanity comes the perception through which the common law grows and flourishes. Yet that perception is attended by the companion traits of procrastination and the yielding of time to other more current or pressing matters. In addition, human nature dictates that the farther a matter is pushed toward the periphery of our consciousness, the less capable and willing we become to disturb its state of repose. The result is often well-meaning injustice. Witnesses disappear or fail of memory. Litigants fail to secure a disposition of their cause based upon its true merits or lack of merit. Distrust of the bench and bar is fostered. It is recognition of the essential humanity in these faults that provides the primary justification for exercise of the court's administrative control. The purpose is to promote justice by recognition of the rules and discipline necessary to operate in the arena of the trial system. It is to provide clear and advance understanding for counsel so that the parties, the court and society may place their confidence in a system for solving disputes in a just, speedy and inexpensive manner. The purpose is not the punishment of litigants for the inattention of counsel.

That the individual litigant may thus be deprived of his day in court sometimes results. And yet as stated by Mr. Justice Harland, writing for the majority in Link:

'There is certainly no (cognizable) merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent . . .'

370 U.S. 633, 634, 82 S.Ct. 1390.

The ever-increasing reliance placed upon our court system to solve disputes coupled with the concepts embodied in our 'new' rules of civil procedure have necessarily brought us to the juncture where judicious exercise of the trial court's administrative powers may be essential to preserve any semblance of effective operation of the litigative system.

Our procedural rules are a response to the social demand that the system operate more with the view to determinations upon factual merits. Pleading traps and trial by ambush are eschewed. As a necessary adjunct, pretrial discovery through interrogatories, depositions, production of documents, requests for admissions and stipulations has grown as an invaluable, if not indispensable, part of the trial technique. At the heart of the system, however, is the concept of the pretrial conference provided by Indiana Rules of Procedure, Trial Rule 16. It is here that the course of trial is charted in order that the trial itself may focus upon the truly disputed issues of fact and law in a forum where they may be fairly presented and fairly met.

Prior to the adoption of these rules, the vehicle by which a party might seek to invoke use of the court's administrative control was subject to question due to the general non-recognition of the motion to dismiss under our civil code. See, Swain, supra. See, also, cases such as State ex rel. Hurd v. Davis (1949), 227 Ind. 93, 84 N.E.2d 181; Cook v. Herring (1959), 130 Ind.App. 72, 162 N.E.2d 108, where our courts denied the propriety of dismissing a case except for want of jurisdiction. ¹ It is unnecessary to address the question of whether those decisions were actually intended to negate the inherent power of a court in the area of administrative control. Clearly the power may be properly exercised under appropriate rules for civil procedure. Link, supra; Swain, supra.

Such provisions exist in our present rules TR 1 provides the general frame of reference in its specification that the rules 'shall be construed to secure the just, speedy and inexpensive determination of every action.'

TR 41, concerning dismissal of actions, provides under subdivision (E):

'(E) 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. 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 upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.'

Regarding the initial phrase of this subdivision of the rule, we acknowledge and adopt the comment of the civil code study commission:

'Dismissal for failure of plaintiff to comply with these rules or any order of court will not change the existing Indiana law. . . . This section of the new rule will also encompass . . . the sections in Burns' Stat. § 2--901 (Repl.1967) which allow the court to dismiss . . . for disobedience by the plaintiff of an order concerning the proceedings.' (Our emphasis)

See, also, 3 Harvey, Indiana Practice, § 41.5, at 218.

Rule TR 37, which generally follows the federal rule, provides for sanctions upon the failure of a party to grant proper discovery.

TR 37(B)(4) provides:

'The court may enter total or partial judgment by default or dismissal with prejudice against a party who is responsible under subdivision (B)(2) of this rule if the court determines that the party's conduct has or threatens to so delay or obstruct the rights of the opposing party that any other relief would be inadequate.' (Our emphasis)

Subdivision (B)(2) refers to unexcused conduct that is:

'(a) punishable for disobedience of a subpoena or order under subdivision (B) (1) of this rule; or

(b) in bad faith and abusively making or seeking a deposition, interrogatories, production of evidence, inspection, examination, request, question, enforcement order, subpoena, protective order or any other remedy under the discovery provisions of these rules; or

(c) in bad faith and abusively resisting or obstructing a deposition, interrogatories, production of evidence, inspection, examination, request, question, enforcement order, subpoena, protective order or any other remedy under the discovery provisions of these rules.'

Subdivision (B)(1) referred to in (a) above provides:

'(1) The court may enforce the attendance of witnesses by attachment, and punish disobedience of a subpoena or order issued or made under these discovery rules as a contempt . . ..' (Our emphasis)

Thus, under TR 37(B)(4) the court may enter default judgment or dismissal with prejudice against a party who is in violation of subdivision (B)(2) if the court determines that the conduct has or threatens to so delay or obstruct the rights of the other party that any other relief would be inadequate.

A distinction is to be noted in the (B)(2) conduct which will permit the sanction. Under TR 37(B)(2)(c), if the party merely resists or obstructs the action of another party in attempted discovery, the...