Olson v. Alick's Drugs, Inc.

• Decision Date: 16 January 2007
• Docket Number: No. 71A03-0606-CV-274.,71A03-0606-CV-274.
• Parties: Donn OLSON, Appellant-Plaintiff, v. ALICK'S DRUGS, INC, and Georgia Luks-McFarland, Appellees-Defendants.
• Court: Indiana Appellate Court

863 N.E.2d 314

Donn OLSON, Appellant-Plaintiff, v. ALICK'S DRUGS, INC, and Georgia Luks-McFarland, Appellees-Defendants.

No. 71A03-0606-CV-274.

Court of Appeals of Indiana.

January 16, 2007.

Publication Ordered February 20, 2007.

Timothy J. O'Connor, O'Connor & Auersch, Indianapolis, IN, Attorney for Appellant.

Timothy S. Shelly, Dean E. Leazenby, William L. Law, III, Warrick & Boyn, LLP, Elkhart, IN, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Donn Olson (Olson), appeals the trial court's dismissal of his Complaint for Damages against Appellees-Defendants, Alick's Drug Stores, Inc., Nafe Alick, Jeannine Alick (collectively, Alick's), and Georgia Luks-McFarland (Luks-McFarland).

We affirm.

ISSUES

Olson raises two issues on appeal, which we restate as:

(1) Whether the trial court erred in dismissing his case for failure to prosecute under Ind. Trial Rule 41(E); and

(2) Whether the trial court erred in refusing to reinstate his Complaint under Ind. Trial Rule 60(B).

FACTS AND PROCEDURAL HISTORY

In May of 1998, Olson filed an employment discrimination claim against his former employers, Alick's, in the United States District Court for the Northern District of Indiana (federal court).¹ After initiation of the claim, Olson's attorney withdrew and he retained Luks-McFarland to represent him. On June 28, 2002, the parties reached a confidential settlement by oral agreement, whereby Alick's agreed to pay Olson $120,000.00 for settlement of all claims — present and future — related to the employment dispute. Thereafter, Luks-McFarland drafted a written settlement agreement in accordance with the agreed upon terms. Alick's signed the agreement and returned it to Luks-McFarland with a check for the amount of $120,000.00. Alick's counsel directed Luks-McFarland to deliver the check to Olson after he signed the settlement agreement and the suit was dismissed.

Consequently, Luks-McFarland presented the settlement agreement to Olson; however, Olson found the written terms different from the terms of the oral agreement and refused to sign the agreement. Olson demanded that Luks-McFarland hand over the check, but due to Alick's request, Luks-McFarland did not do so. After Olson threatened to report Luks-McFarland to the disciplinary commission, Luks-McFarland withdrew as his counsel. Olson then filed a transcript of the oral confidential settlement agreement with the federal court.

On September 6, 2002, Alick's filed a motion with the federal court seeking to hold Olson accountable for breaching the confidentiality clause of the agreement and to compel Luks-McFarland to return the settlement check to them. On November 1, 2002, the federal court issued a memorandum and order concluding that the oral settlement agreement reached on June 28, 2002 was valid and enforceable. In addition, the trial court awarded Alick's liquidated damages for Olson's breach of confidentiality, but denied Alick's motion to compel Luks-McFarland to return the check. On November 5, 2002, Alick's stopped payment on the settlement check because the amount of the check no longer reflected the amount owed to Olson. On January 7, 2003, the federal court issued a memorandum and order reducing the terms of the settlement agreement to a final judgment.

On or around January 21, 2003, Olson filed a motion in federal court seeking to compel Luks-McFarland to deliver the settlement check to him. On January 27, 2003, Luks-McFarland filed a Verified Petition Seeking to Deposit the Settlement Check with the federal court. On March 6, 2003, the federal court ordered Luks-McFarland to deliver the check to Olson, but the check was statutorily stale by that time because more than six months had passed since it was issued. Thereafter, Alick's attempted on several occasions to send a new settlement check, less the liquidated damages, to Olson. Each time, Olson refused to accept the check. Instead, Olson paid the liquidated damages separately to Alick's. Upon receipt of the liquidated damages, Alick's attempted to tender a second settlement check, for the full and original amount, but Olson again refused to accept it. Alick's then sought the federal court's permission to deposit the monies with the court clerk, a request that the federal court granted on April 5, 2004. After Alick's deposited the amount in the clerk's office, the office mailed the check to Olson. Yet, Olson still refused to accept the check.

On July 13, 2004, Olson filed a Complaint for damages in state court (the trial court) against Alick's for unlawfully stopping payment on the original settlement check, and against Luks-McFarland for unlawfully converting the same check by refusing to tender it to Olson. Alick's and Luks-McFarland filed their Answers in August and October, respectively. On May 9, 2005, the trial court granted Olson's counsel, Jason Shartzer (Shartzer), leave to withdraw from the case. On June 16, 2005, the trial court granted Olson's subsequent counsel, Robert J. Nice (Nice), leave to withdraw from the case. On December 1, 2005, Luks-McFarland filed a Motion to Dismiss for Failure to Prosecute. On December 19, 2005, Alick's filed a likewise motion. On January 3, 2006, the trial court held a hearing on these motions. At the hearing, Michigan attorney Michael Reynolds (Reynolds) requested to argue on Olson's behalf, but the trial court denied his request because Reynolds had not previously sought leave to be admitted pro hac vice. Olson proceeded pro se.

On February 13, 2006, the trial court entered its Order of Dismissal, stating in pertinent part:

The [c]ourt notes that the issues in this case were finally closed on October 15, 2004, when [Luks-McFarland] filed her [A]nswer to [Olson's] Amended Complaint. The [c]ourt also notes that [Olson's] substitute counsel withdrew on June 16, 2005, and that [Olson] has been without counsel of record since that date. At the hearing on the Motion to Dismiss, an oral appearance on behalf of [Olson] by Michigan attorney [Reynolds] was attempted without any effort to comply with Admission and Disciplinary Rule 3, Section 2, which attempted appearance was refused by the [c]ourt.

[Olson] in his written Response filed with the [c]ourt reported that he had numerous early contacts with attorney Reynolds going back as far as May 26, 2005. He also indicated in his Response that attorney Reynolds was "retained summer 2005." [Olson] further says that [Alick's and Luks-McFarland] have failed to provide discovery responses to his discovery requests and that such failure significantly contributed to his unexplained delay in [prosecuting] this matter. Most significantly, [Olson] has failed to take any further action to prosecute this matter.

[Olson's] failure to obtain substitute counsel over that significant period of time rests squarely upon [him]. Any issue of a pro hac vice appearance could have been handled in a timely [manner]. [Olson's] failure to exercise any of his available discovery remedies regarding his alleged failure to secure discovery responses also rests squarely upon [him]. He has failed to take any positive steps to move his case forward. In summary, it appears that [Olson] has done nothing to diligently prosecute his claim. He has shown no good cause why this matter should not be dismissed.

. . . [Olson's] Complaint . . . . hereby, is, dismissed with prejudice.

(Appellant's App. pp. 4-5).

Olson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Trial Rule 41(E) Dismissal for Failure to Prosecute

First, Olson argues that the trial court improperly granted Alick's and Luks-McFarland's Motions to Dismiss for Failure to Prosecute. Specifically, Olson contends that the trial court erred in concluding that he had not taken any action in the case since his attorney, Nice, withdrew in June of 2005.

We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the event of a clear abuse of discretion. Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind.Ct.App.2003), trans. denied. An abuse of discretion occurs if the decision of the trial court is against the logic and effect of the facts and circumstances before it. Id. We will affirm if there is any evidence that supports the trial court's decision. Id.

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.

The purpose of this rule is "to ensure that plaintiffs will diligently pursue their claims," and to provide "an enforcement mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff to push his case to resolution." Id. (quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind.Ct.App.1993), reh'g denied). "The burden of moving the litigation is upon the plaintiff, not the court. 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." Belcaster, 785 N.E.2d at 1167 (quoting Benton, 622 N.E.2d at 1006). "Courts cannot be asked to carry cases on their dockets indefinitely and the rights of the adverse party should also be considered. He should not be left with a lawsuit hanging over his head indefinitely." Belcaster, 785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind. Ct.App.1997)).

We balance several factors when determining whether a trial court abused its discretion in dismissing a case for failure to prosecute. Office Environments, Inc. v. Lake States Ins. Co., 833 N.E.2d 489, 494 (Ind.Ct.App.2005). These factors include: (1) the length of the delay; (2) the reason for the delay; (3) the degree of personal...