Erin McCallion-Holmes v. Sherrie Holmes (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 24 2017, 8:38 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan Bower Kristi L. Fox
New Albany, Indiana Steven A. Gustafson
Fox Law Offices, LLC
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Erin McCallion-Holmes, January 24, 2017
Appellant-Plaintiff, Court of Appeals Case No.
10A01-1512-CT-2290
v. Appeal from the Clark Circuit
Court
Sherrie Holmes, The Honorable Susan L. Orth,
Appellee-Defendant. Special Judge
Trial Court Cause No.
10C01-1207-CT-111

Mathias, Judge.

[1] Erin McCallion-Holmes (“Erin”) filed a complaint in Clark Circuit Court

against Sherrie Holmes (“Sherrie”) alleging that Sherrie had committed the

torts of malicious prosecution and abuse of process. The trial court granted

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 Sherrie’s motion to dismiss the complaint for failure to prosecute. Erin filed a

motion to correct error, which the trial court denied. Erin appeals and presents

two issues for our review, which we restate as: (1) whether the trial court erred

by denying Erin’s motion to correct error as untimely without considering the

motion on its merits, and (2) whether the trial court abused its discretion when

it dismissed Erin’s complaint.

[2] We affirm.

Facts and Procedural History

[3] Sherrie and Michael Holmes (“Michael”) were married and had a son, A.H.,

but later divorced. Michael subsequently married Erin, who is now A.H.’s

stepmother. Sherrie has primary physical custody of A.H. In July 2010, when

A.H. was eleven years old, Michael filed a motion to modify custody, seeking

to obtain primary physical custody of A.H.

[4] In October 6, 2010, during the pendency of the motion to modify custody,

Sherrie filed a petition for a protective order against Erin on behalf of A.H.,

claiming that Erin had pushed A.H. into furniture, scratched his arm, and made

the child stay out in the cold until his father came home.

[5] Neither party has informed us whether the petition was ultimately granted by

the dissolution court. However, this appears unlikely, because on July 5, 2012,

Erin filed the complaint at issue in this case, claiming that Sherrie’s action of

filing for a protective order was merely a sham intended to aid Sherrie in her

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efforts to retain primary physical custody of A.H. Specifically, Erin’s complaint

provided in relevant part:

24. At the time Sherrie filed her Petition, she knew the
allegations contained in the Petition were false.

25. Namely, Sherrie knew, when she filed that Petition, that
Erin had not “repeatedly push[ed] [A.H.] around into furniture”,
but had only pushed him once to sit in a cushioned chair.

26. Sherrie knew, when she filed that Petition, that Erin had
not “watched child cry and shiver from cold inside of house,” but
that [A.H.] only had to go outside for ten minutes or less until his
father talked to him.

27. Sherrie knew, when she filed the Petition, that even if
[A.H.] “had scratches on his arm,” that [A.H.] was not claiming
that Erin deliberately scratched him.

28. At the time Sherrie filed this Petition, she knew that
Michael’s custody modification was still pending.

29. Because Sherrie told her therapist the day after this
incident that she was going to try and get Michael’s visitation
suspended, that shows that Sherrie made these false allegations in
the Petition as retaliation against Michael, and to try and get an
advantage in the pending custody case.

30. Because [A.H.] had been suspended from school for
behavioral problems the same day as this alleged incident,
Sherrie made these false allegations in the Petition to try and
deflect the fact that it would be a negative factor against her in
the pending custody case if [A.H.]was being suspended from
school while she was the primary residential parent.
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 31. By knowingly and intentionally making these false
allegations in the Petition for her own personal gain, Sherrie
committed the torts of malicious prosecution and/or abuse of
process and/or wrongful use of civil proceedings.

Appellant’s App. p. 56.

[6] After receiving an extension of time, Sherrie filed her answer on August 10,

2012, which included a motion to dismiss based on her purported immunity

from suit. Sherrie also filed a motion for change of judge, which the trial court

granted on August 16, 2012. Erin responded to the motion to dismiss on

August 28, 2012. The trial court initially scheduled a hearing on the motion to

dismiss but later vacated this hearing based on the motion for change of judge.

Sherrie and Erin made their strikes from the list of three judges on September 7

and 13, 2012, respectively, and the special judge assumed jurisdiction over the

case on September 27, 2012. The case then sat dormant for almost two years.

[7] The next entry on the chronological case summary (“CCS”) is on June 6, 2014,

when the trial court ordered a pretrial conference to be held on July 10, 2014,

apparently on Erin’s motion. See Tr. p. 10 (noting that Erin requested the

pretrial conference). On Sherrie’s motion, the pretrial conference was

rescheduled and held on August 11, 2014. On September 25, 2014, Erin filed a

response to Sherrie’s motion to dismiss. Sherrie responded by filing a surreply

in support of her motion to dismiss on November 5, 2014. That same day, the

trial court set a hearing on the motion to dismiss to be held on December 29,

2014. After holding the hearing on the motion to dismiss on December 29,

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 2014, the trial court, on January 7, 2015, entered an order taking the motion to

dismiss under advisement, concluding that the motion was premature at the

time.

[8] Erin made no further filings or motions with the trial court for over two

months. Accordingly, on March 25, 2015, Sherrie filed two motions: a Trial

Rule 37 motion for sanctions for Erin’s alleged discovery violations and a

motion to dismiss for failure to prosecute under Trial Rule 41. Erin did not file

a response to this motion to dismiss. On April 16, 2015, the trial court set a

hearing on the motion to dismiss to be held on May 22, 2015. On May 11,

2015, well over a month after Sherrie filed her motion to dismiss, Erin’s

attorney filed a motion to withdraw his appearance. The trial court granted this

motion a week later.

[9] On May 22, 2015, the trial court conducted its scheduled hearing on Sherrie’s

motion to dismiss for failure to prosecute. Erin failed to appear. After hearing a

brief argument by Sherrie’s counsel, the trial court granted the motion to

dismiss. From the bench, the trial court preliminarily ordered Erin to pay

$5,500 in attorney’s fees to Sherrie, but ordered Sherrie’s counsel to submit an

affidavit to support his fee claim. On June 25, 2015, Sherrie’s counsel filed an

affidavit in support of his claim for attorney’s fees in the amount of $5,320.

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[10] On July 22, 2015, the trial court entered a written order granting Sherrie’s

motion to dismiss,1 but awarding her attorney’s fees in the amount of $3,000.

The parties have also included in the record an order, signed the same day as

the order awarding $3,000 in attorney’s fees, which awarded Sherrie $5,320 in

attorney’s fees. This order, however, does not appear to have been entered into

the CCS. The trial court remedied this confusion on August 13, 2015, when it

entered an amended order awarding Sherrie $5,320 in attorney’s fees.

[11] On September 9, 2015, Erin filed a motion for relief from judgment, or in the

alternative, a motion to correct error. Erin also had new counsel file an

appearance on her behalf. On September 21, 2015, the trial court entered an

order setting Erin’s motion for a hearing to be held on November 9, 2015. After

holding a hearing on Erin’s motion, the trial court entered an order on

December 3, 2015, denying Erin’s motion. Specifically, the trial court

determined that Erin’s motion to correct error was untimely and that her

motion for relief from judgment should be denied. Erin now appeals.

Discussion and Decision

[12] Erin first contends that the trial court erred by failing to consider her motion to

correct error on the merits. Erin insists that her motion to correct error was

timely filed and that the trial court therefore should have considered it on its

merits. Erin’s claim that her motion to correct error was timely filed is based on

1
The trial court dismissed the case with prejudice. See Lee v. Pugh, 811 N.E.2d 881, 887 (Ind. Ct. App. 2004)
(“A dismissal for failure to prosecute is a dismissal with prejudice unless the trial court provides otherwise.”).

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 her position that the trial court’s order of July 22, 2015, which granted Sherrie’s

motion to dismiss, was not final because the trial court signed two orders, one

that awarded Sherrie $3,000 in attorney’s fees and another that awarded her

$5,320 in attorney’s fees. Sherrie claims this issue was not finalized until the

trial court entered its amended order on August 13 clarifying that it intended to

award Sherrie $5,320 in attorney’s fees.

[13] Even if we assume arguendo that Erin is correct and that her motion to correct

error was timely filed, we decline her request to remand so that the trial court

can consider her claim on the merits because her claim fails on its merits. Erin

argues that the trial court erred in granted Sherrie’s motion to dismiss for failure

to prosecute. Indiana Trial Rule 41(E) provides:

Failure to prosecute civil actions or comply with rules.
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.
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.

[14] The purpose of Trial Rule 41(E) is to ensure that plaintiffs 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. Olson v.

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 Alick’s Drugs, Inc., 863 N.E.2d 314, 319 (Ind. Ct. App. 2007) (citing Belcaster v.

Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003)).

[15] The burden of moving the litigation forward is on the plaintiff, not the court or

the defendant. Olson, 863 N.E.2d at 319. “It is not the duty of the trial court to

contact [plaintiff’s] 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 v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993)). Trial

courts are not required to carry cases on their dockets indefinitely. Olson, 863

N.E.2d at 319. Additionally, the rights of the adverse party should also be

considered, and she should not be left with a lawsuit hanging indefinitely over

her head. Id.

[16] When reviewing whether a trial court has abused its discretion in ruling on such

a motion, we consider several factors, which 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.

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 Id. at 320. The weight any one of these factors has in a particular case depends

on the facts and circumstances of that case. Id.

[17] The trial court’s ruling on a Trial Rule 41(E) motion to dismiss is reviewed for

an abuse of discretion. Id. The trial court abuses its discretion when its decision

is against the logic and effect of the facts and circumstances before it. Belcaster,

785 N.E.2d at 1167. On appeal, this court will affirm the trial court if any

evidence supports its decision. Id.

[18] Here, Erin first argues that she had resumed prosecution of her case before

Sherrie filed her Trial Rule 41(E) motion to dismiss. See Baker Mach., Inc. v.

Superior Canopy Corp., 883 N.E.2d 818, 821 (Ind. Ct. App. 2008) (“‘A motion to

dismiss for want of prosecution should not be granted if the plaintiff resumes

diligent prosecution of his claim, even though, at some prior period of time, he

has been guilty of gross negligence.’”), trans. denied (quoting State v. McClaine,

261 Ind. 60, 63, 300 N.E.2d 342, 344 (1973)). This is true to an extent.

[19] To be sure, the largest period of inactivity in Erin’s prosecution of her case

occurred between September 13, 2012, when Erin filed her strike from the list of

three judges, and June 6, 2014, when Erin requested a pretrial conference.

However, this was not Erin’s only period of inactivity.

[20] Erin filed a reply to Sherrie’s motion to dismiss, which was based on Sherrie’s

alleged immunity, on September 25, 2014. Also, Erin participated in the

December 29, 2014 hearing held on this motion. The trial court then entered an

order on January 7, 2015, concluding that the immunity issue was not yet ripe

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 and taking it under advisement. Thereafter, Erin failed to take any further

action in the case. Eventually, on March 25, 2015, over two months after the

trial court’s January 7 order, Sherrie filed her motion to dismiss based on Trial

Rule 41(E). Still, Erin did not respond. Indeed, Erin did not appear at the

hearing on the motion to dismiss or take any action in this case again until

September 9, 2015, when she filed her motion for relief from judgment/motion

to correct error. Thus, based on our review of the CCS, Erin made no effort to

prosecute her case for over nine months. We cannot say that Erin had resumed

diligent prosecution of her claim. See Baker Mach., Inc., 883 N.E.2d at 821.

[21] Erin also claims that the case was “active” because the parties were engaged in

the process of discovery. Specifically, she notes that she received a letter from

Sherrie’s counsel on February 26, 2015, in which Sherrie threatened to file a

request for discovery sanctions based on what she took as incomplete and

inadequate responses to Sherrie’s discovery requests. Sherrie then filed a request

for discovery sanctions, albeit in the wrong court.2 Erin also claims to have

received another discovery request on February 26, 2015, that was never filed

with the trial court. Based on her receipt of these discovery requests, Erin

claims that her case was active. We disagree.

[22] The fact that Sherrie, the defendant, was attempting to go forward with

resolution of the case does not mean that Erin, the plaintiff, was actively

2
Sherrie mistakenly filed a request for discovery sanctions in Floyd Superior Court 1, the court where the
dissolution and child custody action between Sherrie and Michael was heard.

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 prosecuting her claim. Indeed, as noted above, even after Erin reactivated her

case in 2014, another lull in activity by Erin followed the trial court’s January 7,

2105 order. Under these facts and circumstances, we cannot fault the trial court

for rejecting Erin’s claim that her case was active.

[23] With regard to the factors enumerated in Olsen, we note that Erin’s appellate

argument addresses at most two of these factors: the reason for the delay and

the extent to which she can be charged with the action of her attorney. Erin

specifically argues that there were valid reasons for her delay and for her failure

to appear at the hearing on Sherrie’s motion to dismiss, i.e., that her counsel

had recently withdrawn and that her home was damaged by high winds on

March 15, 2015.

[24] We note, however, that Sherrie filed her motion to dismiss on March 25, 2015,

and Erin’s counsel was served with this motion. Erin’s counsel did not

withdraw from the case until May 18, 2015. Thus, Erin’s counsel, and therefore

Erin, had notice of the motion to dismiss and the hearing set thereon. See

Washmuth v. Wiles, 12 N.E.3d 938, 941 (Ind. Ct. App. 2014) (noting that notice

or information given to an attorney constitutes notice to the attorney’s client)

(citing Reynolds v. State, 463 N.E.2d 1087, 1088 (Ind. 1984)); Lovko v. Lovko, 179

Ind. App. 1, 14, 384 N.E.2d 166, 174 (1978) (“Notice to an attorney is notice to

the client who employs him.”). Accordingly, the trial court did not abuse its

discretion by failing to accept the withdrawal of Erin’s counsel as an excuse for

her failure to prosecute her case or failure to appear at the hearing on the

motion to dismiss.

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[25] Although not directly addressed by Erin, we also consider the remaining factors

enumerated in Olson. The length of the delay here was not exceptionally long,

but more than two months had passed between the trial court’s order and

Sherrie’s motion to dismiss for failure to prosecute. See Lee v. Pugh, 811 N.E.2d

881, 886 (Ind. Ct. App. 2004) (affirming trial court’s dismissal of plaintiffs’

claims for failure to prosecute where the plaintiffs failed to take any action in

the case for over ninety days). Moreover, Erin had filed nothing with the trial

court since the August 11, 2014 pretrial conference other than a response to

Sherrie’s motion to dismiss based on her alleged immunity. The other actions

listed in the CCS were taken by Sherrie.

[26] With regard to the degree of personal responsibility and the degree to which she

should be charged with the actions (or failures to act) of her attorney, we note

that, when Erin’s attorney moved to withdraw his appearance, he specifically

noted that Erin had failed to cooperate with him. Appellant’s App. p. 32.

Sherrie notes that she has been prejudiced by the delay in this case, which has

now dragged on for over four years. Although we acknowledge that Erin

reactivated her case when she requested a pretrial conference in 2014, we

cannot overlook the history of delay in this case, which includes a period of

dormancy that lasted almost two years with no action being taken by Erin.

Almost all of Erin’s recent action in this case was spurred by Sherrie’s motion

to dismiss. Even then, Erin did not respond to the motion to dismiss or appear

at the hearing on the motion.

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[27] Although sanctions less severe than dismissal may have been available, and we

always prefer that cases be decided on their merits, we cannot say that the trial

court abused its discretion when it chose to dismiss Erin’s action instead of

choosing some lesser sanction. See United Bhd. of Carpenters, Local 2371 v. MEG

Mfg. Corp., 963 N.E.2d 602, 607 (Ind. Ct. App. 2012) (“[T]he court need not

impose a sanction less severe than dismissal where the record of dilatory

conduct is clear.”). Accordingly, we affirm the order of the trial court denying

Erin’s motion for relief from judgment/motion to correct error.

[28] Affirmed.

Robb, J., and Brown, J., concur.

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