Tafelski v. Salmon (In re Neitzel)
| Decision Date | 13 April 2022 |
| Docket Number | 21A-ES-1485 |
| Parties | In the Matter of the Estate of Suzanne M. Neitzel, Deceased: v. Linda Salmon, Appellee. Rita Tafelski, Appellant, |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.
Attorney for Appellant
Patrick B. McEuen
McEuen Law Office
Portage, Indiana
Attorney for Appellee
Gerald M. Bishop
Gerald M. Bishop & Associates
Merrillville, Indiana
[¶1] Rita Tafelski appeals the probate court's Trial Rule 41(E) dismissal of her mother's estate for failure to prosecute, arguing the court erred by determining that no action had been taken in the case for more than sixty days. Concluding the probate court did not abuse its discretion by dismissing the estate, we affirm.
[¶2] Tafelski presents one issue for our review, which we restate as: whether the probate court erred by dismissing the estate pursuant to Trial Rule 41(E).
Facts and Procedural History[1]
[¶3] Rita Tafelski is the daughter of decedent, Suzanne Neitzel, and Linda Salmon is the sister of Neitzel. Neitzel died intestate in April 2012. In May, Salmon petitioned for appointment as personal representative of Neitzel's estate and for unsupervised administration of the estate, both of which the court granted.
[¶4] In April 2013, Tafelski filed a motion to convert the estate to supervised administration and to remove Salmon as the personal representative. She also filed a complaint against Salmon under cause number 45D02-1304-CT-29 alleging tortious interference, fraud, conversion, breach of fiduciary duty, and intermeddling and seeking the imposition of a constructive trust. By June 2014, Tafelski's suit against Salmon had been consolidated with the estate case for purposes of discovery and pre-trial proceedings, Salmon had been removed as personal representative of the estate, and Tafelski had been appointed as successor personal representative. Throughout the next several years, the parties filed numerous discovery and dispositive motions in these highly contentious proceedings. On June 29, 2020, Salmon filed a motion to dismiss the estate action pursuant to Trial Rule 41(E). Tafelski filed a response, and the court granted the motion to dismiss. Thereafter, Tafelski filed a motion to correct error. Following a hearing, the court denied the motion to correct error. Tafelski now appeals.
[¶5] As a threshold matter, we address Salmon's argument that this Court was divested of jurisdiction to consider this appeal due to Tafelski's failure to include a copy of her motion to correct error in her appendix. In support of her argument, Salmon relies on Moore v. Spann, 157 Ind.App. 33, 298 N.E.2d 490 (1973). There, the Court dismissed the appeal due to the appellants' failure to include in the record a certified copy of the motion to correct error, which at that time was a jurisdictional defect under Appellate Rule 7.2.[2] Since 1973 however, the appellate rules have been amended several times, and this version of Rule 7.2 was no longer in effect at the time of these proceedings.
[¶6] This Court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A); In re Est. of Botkins, 970 N.E.2d 164 (Ind.Ct.App. 2012). A dismissal pursuant to Trial Rule 41(E) is a final, appealable order. Houston v. Wireman, 439 N.E.2d 732 (Ind.Ct.App. 1982). In addition, the timely filing of a notice of appeal is a prerequisite to invoking this Court's subject matter jurisdiction. Termination of Parent-Child Relationship of J.G. v. Ind. Dep't of Child Servs., 4 N.E.3d 814 (Ind.Ct.App. 2014), trans denied. Here, Tafelski filed her notice of appeal on July 15, 2021, within 30 days of the court's order denying her motion to correct error as required by our current appellate rules. See Ind. Appellate Rule 9(A)(1) (). Consequently, the fact that Tafelski did not include, by affirmative decision or oversight, her motion to correct error in her appendix does not deprive this Court of jurisdiction, and Salmon's argument to the contrary strikes us as disingenuous.
[¶7] We turn now to the heart of this appeal. We will reverse a dismissal for failure to prosecute only in the event of an abuse of discretion. Lee v. Pugh, 811 N.E.2d 881 (Ind.Ct.App. 2004). Such an abuse occurs only where the trial court's decision is against the logic and effect of the facts and circumstances before it. Id. This Court will affirm the trial court if any evidence supports its decision. Belcaster v. Miller, 785 N.E.2d 1164 (Ind.Ct.App. 2003), trans. denied.
[¶8] Trial Rule 41(E) provides, in pertinent part:
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.
The purpose of this rule is to ensure plaintiffs diligently pursue their claims. Belcaster, 785 N.E.2d 1164. The burden of moving the litigation forward is on the plaintiff, not the court or the defendant. Olson v. Alick's Drugs, Inc., 863 N.E.2d 314 (Ind.Ct.App. 2007), trans. denied. Courts cannot be asked to carry cases on their dockets indefinitely, and adverse parties should not be compelled to respond to a lawsuit indefinitely. Lee, 811 N.E.2d 881.
[¶9] We generally consider several factors to determine whether the trial court abused its discretion by dismissing a case for failure to prosecute. These factors include:
(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.
Olson, 863 N.E.2d at 319-20. The weight any particular factor has in a case depends on the facts and circumstances of that case. Id. For instance, a lengthy period of inactivity may be enough to justify dismissal under the circumstances of a particular case, especially if the plaintiff has no excuse for the delay. Lee, 811 N.E.2d 881.
[¶10] Neither party addresses these factors in their briefs, and Tafelski claims that "none [of these factors] are especially appropriate for consideration" in this case because the probate court "incorrectly treated" the estate case and the civil litigation as two distinct proceedings. Appellant's Br. p. 17. We disagree and see no reason to deviate from our customary practice of considering these factors to determine whether the court abused its discretion. Moreover, while consolidation of similar cases is permitted as a matter of convenience and economy, it does not merge suits into a single cause. Clarkson v. Neff, 878 N.E.2d 240 (Ind.Ct.App. 2007), trans. denied (2008).
[¶11] Here, several of the factors favor the probate court's dismissal of the estate, including the length of the delay, the failure to justify the delay, and the presence of deliberate action that hampered the progress of the case.
[¶12] In support of her contention that there was no period of inactivity in the estate case to support its dismissal, Tafelski points to (1) an October 2018 petition to discover and recover assets and for imposition of a constructive trust and (2) a June 2019 petition to discover and recover documents. Tafelski filed a motion to correct error in August 2019 when this petition was denied. Nevertheless, these filings do not demonstrate that Tafelski was actively moving the estate case forward. There was a period of 238 days between the October 2018 filing and the June 2019 filing. Furthermore, the June 2019 filing was followed by a 370-day period of inactivity-305 days if calculated from the August motion to correct error-before Salmon moved to dismiss on June 29, 2020.
[¶13] Tafelski also identifies her filing of a "Praecipe Withdrawing Submission Under Ind. T.R. 53.1" on February 6, 2020, as an action she took to move the case forward. The praecipe concerns her April 2019 motion to quash notice of deposition and for protective order as well as a motion to allow discovery and Salmon's motion to compel deposition. Appellant's App. Vol. 2, p. 128. Even assuming these filings were associated with the estate action, which it appears they were not, there was still a period of 161 days between Tafelski's August 2019 motion to correct error and the February 2020 praecipe, and then another 144 days before Salmon moved to dismiss. Dismissal under Trial Rule 41(E) requires only a sixty-day period of inaction, and these intervals far exceed that, even if we include the Trial Rule 53.1 praecipe in...
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