Ind. Dep't OF v. RITZ
| Decision Date | 31 March 2011 |
| Docket Number | No. 24A01-1009-PL-442,24A01-1009-PL-442 |
| Parties | INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellant-Plaintiff, vs. RONALD W. RITZ and SANDRA J. RITZ, Husband and Wife, Appellees-Defendants. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
GREGORY F. ZOELLER
Attorney General of Indiana
MICHAEL J. MENNINGER
Wood & Lamping LLP
Cincinnati, Ohio
COURT OF APPEALS OF INDIANA
The Honorable Clay M. Kellerman and the Honorable J. Steven Cox, Judges
OPINION - FOR PUBLICATION
The Indiana Department of Natural Resources ("DNR") and Ronald W. and Sandra J. Ritz each claim possession of a deed conveying ownership of a tract of real estate. DNR sought to develop this disputed real estate as part of its park system. The Ritzes removed DNR's survey equipment from the property and denied DNR employees access to the property. DNR filed suit against the Ritzes for ejectment and trespass. The trial court dismissed the suit for failure to prosecute. DNR appeals, asserting that the dismissal was an abuse of discretion. We conclude that the desirability of deciding this case on the merits is of particular import because of the alleged public interest in the disputed property. We also conclude that the prejudice to the Ritzes caused by DNR's delay in prosecuting the case is minimal and that DNR is now diligently pursuing the case. Therefore, even though the length of DNR's delay in prosecuting the case is considerable, we conclude that the trial court abused its discretion in dismissing the case. Accordingly, we reverse and remand for further proceedings.
Both DNR and the Ritzes claim ownership of a certain tract of real estate along the former Whitewater Canal in Franklin County. DNR claims that it obtained title to the disputed property under a quit claim deed dated July 15, 1946, from the Whitewater Canal Association of Indiana, Inc., which DNR recorded in the Franklin County Recorder's Office. DNR's deed provides that the property is to be "used and administered by the State of Indiana as part of its public park system in the same manner as other lands, parks and historical sites are held, used and administered by the State." Appellant's App. at 26, Ex. C to Verified Complaint filed Sept. 17, 1991. The Ritzes claim that they obtained title to the disputed property under a January 11, 1971, deed from Charles E. and Daisy A. Metcalf, who had obtained title to the disputed property from Helena Biere under a July 30, 1954, warranty deed.
In 1991, DNR sought to develop a hiking and biking trail that would include the disputed real estate and placed boundary markers on the property to survey it. The Ritzes operated a canoe business on property adjacent to the disputed real estate. The Ritzes' employees removed the markers and denied DNR employees access to the property.
The procedural history of this case is rather complicated. On September 17, 1991, in cause number 24C01-9109-CP-1479 ("cause 1479"), DNR filed a complaint against the Ritzes for ejectment, trespass, preliminary and permanent injunctions, and damages. Id. at 8. On April 29, 1992, the trial court sua sponte issued an order to show cause why the case should not be dismissed pursuant to Indiana Trial Rule 41(E) for failure to prosecute, but the case was not dismissed. Id. at 3.1 Three years later, on September 19, 1995, the trial court dismissed cause 1479 for failure to prosecute pursuant to Trial Rule 41(E), but on November 15, 1995, the trial court ordered that "cause [1479] shall remain active and not be dismissed."2 Id.
On December 2, 1998, pursuant to Trial Rule 41(E), the trial court again ordered the parties "to show cause in writing why this action should not be dismissed on or before December 31, 1998." Id. at 166 (emphasis added). The order did not set a hearing, nor does the chronological case summary ("CCS") show that a hearing was set or held. On April 30, 1999, the trial court issued an order dismissing cause 1479, which provided, "The Court having heretofore ordered the parties herein to show cause on or before December 31, 1998 why this action should not be dismissed and no cause having been shown, the Court now dismisses said cause pursuant to T.R. 41(E)." Id. at 167.
Over ten years later, on October 21, 2009, in cause number 24C02-0910-PL-269 ("cause 269"), DNR filed a complaint against the Ritzes for trespass, injunction, damages, and to quiet title pertaining to essentially the same real estate that was the subject of cause 1479. DNR also filed a motion for an order authorizing entry upon the real estate for purposes of completing a survey, which was granted. On January 26, 2010, the Ritzes filed a motion to dismiss, asserting that the case was originally filed in 1991 and was dismissed with prejudice. The Ritzes also asserted that cause 279 should be dismissed because the statute of limitations for quiet title actions had run.
On March 15, 2010, DNR filed a motion to reinstate cause 1479 and a request for hearing, contending that Trial Rule 41(E) required a hearing prior to dismissal, such a hearing was not held, and therefore the 1999 dismissal had been improper. On April 16, 2010, the trial court granted DNR's motion on the basis that the dismissal of cause 1479 without setting a hearing did not comply with Trial Rule 41(E) and ordered cause 1479 reinstated and that the parties "proceed in a timely fashion to prosecute all pending claims[.]" Id. The Ritzes did not oppose or challenge the trial court's reinstatement of cause 1479. Instead, on April 19, 2010, the Ritzes filed a motion to set hearing on the trial court's December 2, 1998, show cause order.
On April 19, 2010, in cause 269, the trial court made an entry in the CCS that acknowledged receipt of the order of reinstatement for cause 1479. Also on that day, DNR filed a response to the Ritzes' motion to dismiss cause 269 and filed the surveyor's report. On April 26, 2010, the Ritzes filed a reply in support of their motion to dismiss, adding the argument that cause 269 should be dismissed pursuant to Indiana Trial Rule 12(B)(8) because the case was pending in another court in the State. That same day, DNR filed a motion for summary judgment on its quiet title action, attaching the surveyor's affidavit and requesting the trial court to take notice of the surveyor's report previously filed. On June 11, 2010, the trial court granted the Ritzes' motion to dismiss cause 269 on two grounds: (1) the case was pending in another Indiana court; and (2) the statute of limitations had run. The trial court found that DNR's summary judgment motion was moot. On July 9, 2010, DNR filed a motion to correct error, which the trial court denied on August 9, 2010. DNR timely appealed that order.
Meanwhile in cause 1479, on June 3, 2010, a hearing was held on the December 2, 1998, show cause order with the parties presenting argument as to whether the trial court should dismiss the case for failure to prosecute pursuant to Trial Rule 41(E). On June 14, 2010, the trial court dismissed cause 1479 pursuant to Trial Rule 41(E) because DNR had failed to take any action for almost eleven years and "offered no argument as to why they have remained silent for almost eleven (11) years other than current counsel's assertion that he could not speak for his predecessors." Id. at 90. On July 9, 2010, DNR filed a motion to reconsider, asserting that Trial Rule 41(E) allows the trial court "to set conditions for the continuance of the litigation to assure diligent prosecution" and that "no prejudice has been caused by the delay." Id. at 92. On July 12, 2010, DNR filed its notice of appeal. On July 13, 2010, the trial court denied DNR's motion to reconsider. On October 26, 2010, in response to DNR's motion to consolidate, this Court consolidated DNR's appeals of causes 1479 and 269.
Initially, we observe that DNR does not ask us to address the dismissal of cause 269. Rather, DNR urges us to reverse the trial court's dismissal of cause 1479 for failure to prosecute pursuant to Indiana Trial Rule 41(E). We will reverse a trial court's dismissal of a cause of action under Trial Rule 41(E) only upon an abuse of discretion. Grant v. Wal-Mart Stores, Inc., 764 N.E.2d 301, 303 (Ind. Ct. App. 2002). An abuse of discretion occurs where the trial court' s decision is against the logic and effect of the facts and circumstances. Id. We will affirm the trial court if any evidence supports the trial court's decision. Id. However, "we view dismissals with disfavor, and dismissals are considered extreme remedies that should be granted only under limited circumstances." Rueth Dev. Co. v. Muenich, 816 N.E.2d 880, 884 (Ind. Ct. App. 2004) (), trans. denied (2005).
Indiana Trial Rule 41(E) provides,
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.3 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.
Unless the court in its order for dismissal otherwise specifies, a dismissal under Trial Rule 41(E) operates as an adjudication upon the merits. Ind. Trial Rule 41(B)....
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