Lawyer’s ‘series of unfortunate events’ no help in dismissal appeal

A water-damage negligence suit that lacked docketed activity for about two years was rightly dismissed for failure to prosecute, the Indiana Court of Appeals ruled Wednesday.

Teresa and Patrick Parnell sued multiple defendants in February 2015 after a construction project next to their home in Marion allegedly resulted in increased water flow onto their property. They alleged in their negligence suit this led to flooding in their basement after heavy rain in March 2013.

But after more than two years passed without activity in the case, the Grant Superior Court called a Trial Rule 41(E) hearing, initiating proceedings to dismiss the case for failure to prosecute.

“Three days before the scheduled hearing, the Parnells filed a motion to lift the Trial Rule 41(E) hearing, listing as reasons for the lack of activity in the case a fire at counsel’s office that resulted in the loss and reclamation of certain records, a tornado causing power outages at counsel’s temporary office, a water main break at the office, a lockdown and closure of the office due to a stalker, staff issues and absences, and counsel’s family health issues,” Judge Terry Crone wrote.

The trial court reset the hearing for nearly six months later and dismissed the case, citing a continued lack of prosecution. The COA affirmed that decision Wednesday in Teresa Parnell and Patrick Parnell v. Agricor, Inc., Steinberger Construction, Inc., E&B Paving, Inc., and Keith Sullivan Excavating, Inc., 18A-CT-399.

“When the trial court initiated dismissal proceedings in February 2017, the Parnells filed a motion to lift the Rule 41(E) proceedings, citing a loss of files due to a series of unfortunate events that had befallen plaintiffs’ counsel, i.e., an office fire, weather-related setbacks at the temporary office, staff issues, and family illness. The trial court granted the Parnells’ motion and extended the time to pursue their claims by nearly six months. As of the September 2017 status hearing, the Parnells had neither proactively pursued discovery nor requested that the defendants re-submit any of their initial correspondence/filings,” Crone wrote.

“Simply put, the Parnells’ delay in prosecuting their negligence action was exponentially longer than the sixty-day period provided in Trial Rule 41(E). The reasons for the delay, though initially attributable to circumstances beyond the Parnells’ and their counsel’s control, were not addressed even after the trial court initiated dismissal proceedings,” Crone said. “The Parnells were stirred into action only to the extent of requesting a lift of the proceedings. The trial court, having then been made aware that the initial delays were due to counsel’s unusual challenges, took the less drastic route and afforded the Parnells an additional six months to show that they would push the case forward. It was their burden to do so, and they did not.

“Despite our preference for deciding cases on the merits, we conclude that the trial court acted within its discretion in dismissing the Parnells’ action for failure to prosecute and in denying their motion to correct error,” the court concluded.