Metcalf v. Estate of Hastings

SULLIVAN, Judge,

dissenting

Notwithstanding the implication drawn from Lake County Trust No. 3190 v. Highland Plan Comm’n (1996) Ind.App., 674 N.E.2d 626, that a dismissal hearing is not required by T.R. 41(E), I would note that in that case the appellant was arguing that “the healing on dismissal held by the trial court did not meet the requirements of [T.R. 41(E) ].” Id. at 629. It is therefore clear that, unlike the case before us, a hearing on dismissal was in fact held.

I agree that Metcalf was guilty of inordinate delay in prosecuting his claim in the Montgomery Circuit Court. The most culpable delay occurred when, after the failed telephone conference of August 14, 1998, he made no attempt to reschedule the hearing during the ensuing two months.

*375However, I read T.R. 41(E) to clearly contemplate that a hearing not only be scheduled, but that it be conducted unless, and only unless the plaintiff has, prior to the hearing, been afforded opportunity to demonstrate sufficient good cause for the delay and has in fact done so.

Here, there was never a hearing upon the T.R. 41(E) motion, as required by the rule itself. Therefore, despite Metcalfs delay, I would reverse and remand for further proceedings.