Pursuant to Ind.Appellate Rule 65(D), FILED
this Memorandum Decision shall not Aug 10 2012, 8:28 am
be regarded as precedent or cited
before any court except for the purpose CLERK
of the supreme court,
of establishing the defense of res court of appeals and
tax court
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THEODORE L. STACY JANET A. MCSHARAR
Valparaiso, Indiana STEPHEN E. ARTHUR
ALBERT BARCLAY WONG
Harrison & Moberly, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THE ESTATE OF ROSE GRAVES, )
)
Appellant-Plaintiff, )
)
vs. ) No. 45A03-1112-CT-560
)
ANONYMOUS NURSING HOME, )
)
Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diana Kavadias Schneider, Judge
Cause No. 45D01-0811-CT-87
August 10, 2012
OPINION ON REHEARING – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
The Estate of Rose Graves (“Estate”) files a petition for rehearing, following our
decision in Estate of Graves v. Anonymous Nursing Home, No. 45A03-1112-CT-560
(Ind. Ct. App. May 30, 2012). The Estate argues that we failed to address three
arguments it presented on appeal. We grant the Estate’s petition for rehearing but again
affirm the trial court’s order dismissing the Estate’s action against Anonymous Nursing
Home (“Nursing Home”).
The Estate argues that we did not address three issues raised in its brief: (1)
subject matter jurisdiction of the trial court to enforce time-based constraints on the
Estate’s proposed medical malpractice claim; (2) subject matter jurisdiction to enter a
discovery sanction when no motion to compel had been brought by the Nursing Home;
and (3) the appropriateness of the dismissal as a discovery and/or failure to prosecute
sanction.
The Estate’s first two arguments concern subject matter jurisdiction. A search of
the Estate’s appellant and reply briefs reveals that the Estate never mentioned the phrase
“subject matter jurisdiction” in either brief. In fact, the word “jurisdiction” was never
mentioned in the appellant’s brief and is briefly mentioned in the reply brief. The Estate
correctly argues that subject matter jurisdiction cannot be waived. See Town Council of
New Harmony v. Parker, 726 N.E.2d 1217, 1223 n.8 (Ind. 2000). However, subject
matter jurisdiction is not implicated here.
Subject matter jurisdiction is the power to hear and determine cases of the general
class to which any particular proceeding belongs. K.S. v. State, 849 N.E.2d 538, 540
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(Ind. 2006). The ruling here was the result of the Nursing Home filing a motion for
preliminary determination. Indiana Code Section 34-18-11-1(a) provides:
A court having jurisdiction over the subject matter and the
parties to a proposed complaint filed with the commissioner
under this article may, upon the filing of a copy of the
proposed complaint and a written motion under this chapter,
do one (1) or both of the following:
(1) preliminarily determine an affirmative defense or issue of
law or fact that may be preliminarily determined under the
Indiana Rules of Procedure; or
(2) compel discovery in accordance with the Indiana Rules of
Procedure.
There is no dispute that the trial court here had the power to hear and determine a motion
for preliminary determination in this action.
The basis for the Estate’s arguments on appeal was that the trial court could not
dismiss its claim for failure to prosecute or discovery violations because the trial court
action had been stayed. On appeal, we noted that the Estate never made those arguments
to the trial court. The Estate’s arguments concern more of a procedural error than an
actual subject matter jurisdiction issue, see K.S., 849 N.E.2d at 542, and the arguments
were waived by failure to raise them to the trial court.
Next, the Estate argues that we failed to address the appropriateness of the
dismissal as a discovery and/or failure to prosecute sanction. Without engaging in any
analysis of the issue in appellant’s brief, reply brief, or the petition for rehearing, the
Estate cites Whitaker v. Becker, 946 N.E.2d 51 (Ind. Ct. App. 2011), vacated by
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Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012), for the proposition that a trial court
should warn a party before dismissing for a discovery violation.1
In dismissing the Estate’s complaint, the trial court made findings concerning the
Estate’s failure to create a medical review panel, failure to provide timely or adequate
discovery responses, and failure to show good cause for its actions or lack thereof. The
trial court’s conclusions specifically mentioned the Estate’s failure to prosecute the action
and Indiana Trial Rule 41(E). The Estate did not dispute at the trial court level the
applicability of Indiana Trial Rule 41(E).
For dismissals under Trial Rule 41(E) for failure to prosecute, the following
standard applies:
Courts of review generally balance several factors
when determining whether a trial court abused its discretion
in 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
1
Whitaker concerned the dismissal of an action for discovery violations. One day after the Estate filed its
appellant’s brief, our supreme court granted transfer in Whitaker and held that the trial court was entitled
to dismiss the action. The court noted:
We assign the selection of an appropriate sanction for a discovery
violation to the trial court’s sound discretion. McCullough v. Archbold
Ladder Co., 605 N.E.2d 175 (Ind. 1993). Trial judges stand much closer
than an appellate court to the currents of litigation pending before them,
and they have a correspondingly better sense of which sanctions will
adequately protect the litigants in any given case, without going
overboard, while still discouraging gamesmanship in future litigation.
We therefore review a trial court’s sanction only for an abuse of its
discretion. Id. at 180-81.
Whitaker, 960 N.E.2d at 115. The court further held that, “[a]lthough the regular practice is to fashion
progressive sanctions leading up to a dismissal or default judgment when it is possible to do so, imposing
intermediate sanctions is not obligatory when a party’s behavior is particularly egregious.” Id. at 116.
Thus, even if the trial court dismissed due to the discovery violations, it was within its discretion to do so.
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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. Lee v. Friedman, 637 N.E.2d
1318, 1320 (Ind. Ct. App. 1994). “The weight any particular
factor has in a particular case appears to depend upon the
facts of that case.” Id. However, 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. Id.
Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied. Under
this standard, the trial court did not abuse its discretion by dismissing the Estate’s action
given its lengthy period of inaction and failure to explain the delay.
Although we grant the Estate’s petition for rehearing, we affirm the dismissal of
the Estate’s complaint against Nursing Home.
FRIEDLANDER, J., and MAY, J., concur.
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