Devetta Myers n/k/a/ Devetta Farrow v. Chade Smith d/b/a Simple Home Improvements, and Michael Smith d/b/a Home Connection (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 19 2017, 9:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jonathan A. Watson Kristin R. Fox
Anderson, Agostino & Keller, P.C. Fox Law Firm
South Bend, Indiana Mishawaka, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Devetta Myers n/k/a Devetta May 19, 2017
Farrow, Court of Appeals Case No.
Appellant-Defendant/Counter-Plaintiff, 71A03-1609-CC-2206
Appeal from the St. Joseph
v. Superior Court
The Honorable Jenny Pitts Manier,
Chad Smith d/b/a Simple Home Judge
Improvements, Trial Court Cause No.
Appellee-Plaintiff/Counter-Defendant, 71D05-1012-CC-1324

and

Michael Smith d/b/a Home
Connection,
Appellee/Third-Party Defendant

Crone, Judge.

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 Case Summary
[1] In 2010, Chad Smith d/b/a Simple Home Improvements (“Smith”) filed an

action against Devetta Myers n/k/a Devetta Farrow (“Farrow”) on multiple

legal theories including foreclosure of a mechanic’s lien and breach of contract

based upon work, labor, and material Smith provided to Farrow for the

rebuilding of a porch on a home she owned in St. Joseph County. Farrow

subsequently filed a counterclaim against Smith and a third-party complaint

against her prior contractor, Michael Smith d/b/a Home Connection (“Third-

Party Defendant”), regarding separate work performed on the home. In 2016,

after numerous discovery violations, violations of court orders, and other delays

caused by Farrow, as well as a period of more than sixty days during which

Farrow took no action on her claims, the trial court dismissed Farrow’s

counterclaim and third-party complaint with prejudice pursuant to Indiana

Trial Rule 41(E). Farrow now appeals claiming that the trial court abused its

discretion in doing so. Finding no abuse of discretion, we affirm.

Facts and Procedural History1
[2] Beginning in October 2009, Smith performed construction work on property

owned by Farrow pursuant to a written contract between the parties. When the

work was completed, Farrow disagreed with the amount to be paid and did not

1
Farrow has provided us with a sparse record on appeal that contains virtually no factual background on this
case or the course of the proceedings. Accordingly, much of the following facts and procedural history are
based on the statement of the case section of Smith’s appellee’s brief. Farrow does not dispute the accuracy
of the information provided by Smith.

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 pay the amount billed by Smith. Accordingly, Smith filed a mechanic’s lien

against the property on October 10, 2010. Two months later, Smith filed suit

against Farrow for foreclosure on the mechanic’s lien, breach of contract,

complaint on account, unjust enrichment, and quantum meruit. Smith

subsequently filed a motion for default judgment against Farrow. In January

2011, the trial court entered a default judgment against Farrow for $8458.32

plus costs.

[3] In February 2011, Farrow moved to set aside the default judgment asserting

that she did not receive actual notice of the action. The trial court granted

Farrow’s motion and set aside the default judgment. Thereafter, Farrow filed a

counterclaim against Smith and a third-party complaint for breach of contract

against Third-Party Defendant.

[4] The case did not proceed swiftly from there. Smith was forced to file numerous

motions to compel against Farrow for discovery violations. The trial court

granted many of those motions, issued orders to compel, and repeatedly

sanctioned Farrow for her disregard of the trial rules and the court’s orders.

Smith was required to institute proceedings supplemental on more than one

occasion due to Farrow’s failure to pay the sanction judgments. In addition to

requesting monetary sanctions, Smith also filed multiple motions requesting

dismissal of Farrow’s counterclaim as a sanction. The trial court denied those

motions but warned Farrow that her continued failure to comply with court

orders could result in dismissal of her counterclaim and third-party complaint.

Scheduled trial dates continually had to be reset due to Farrow’s failure to

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 comply with discovery and, in 2015, Farrow failed to appear for a scheduled

pre-trial conference hearing.

[5] Finally, in July 2016, after a lengthy period of inactivity on the case, the trial

court issued a notice of a pretrial conference hearing to be held on August 3,

2016. The day before the hearing, Smith’s counsel called Farrow’s counsel’s

office twice leaving messages with the receptionist and also leaving voicemail

messages for counsel about wanting to discuss a possible agreement between

the parties before the August 3 hearing. Smith’s counsel also provided Farrow’s

counsel three emails about wanting to avoid the necessity of the hearing.

Farrow’s counsel did not respond to Smith’s counsel. The following day, Smith

appeared in person and by counsel, and Third-Party Defendant appeared in

person and pro se, at the pretrial conference hearing. Neither Farrow nor her

counsel appeared. Smith asked for a trial date on his complaint for January 12,

2017, and made an oral motion for dismissal of Farrow’s counterclaim for

failure to prosecute pursuant to Indiana Trial Rule 41(E). Third-Party

Defendant also made an oral motion for dismissal of Farrow’s third-party

complaint pursuant to Trial Rule 41(E). The trial court took the matter under

advisement and later issued the following order:

It appearing to the Court that no action has been taken by
Counter Plaintiff/Third[-]Party Plaintiff on her claims for more
than sixty (60) days, the Court now orders Counter
Plaintiff/Third Party Plaintiff to appear on the 31[st] day of
August, 2016 at 9:00 A.M. and show cause why her
Counterclaim and her Third[-]Party Complaint should not be
dismissed.

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 Appellant’s App. at 22.

[6] Farrow’s counsel responded with a “Motion to Set Matter for Trial and

Notification of Lack of Service” indicating that he did not have notice of the

August 3 pretrial conference hearing because the notice was inadvertently sent

by the court to Farrow’s former attorney. Farrow’s counsel further requested

the court to set a trial date of January 12, 2017, for Farrow’s counterclaim and

third-party complaint. Id. at 24. Farrow’s counsel also filed a motion

requesting the trial court to order Smith to amend his complaint to add an

additional party, and served discovery on Smith even though discovery had

previously been ordered concluded by the trial court.

[7] On August 31, 2016, the trial court held its rule to show cause hearing on

Smith’s and Third-Party Defendant’s Trial Rule 41(E) motions to dismiss, as

well as related matters. During the hearing, the trial court questioned Farrow’s

counsel regarding his alleged lack of service regarding the notice of the August

3, 2016, pretrial conference for which he and Farrow failed to appear. Farrow’s

counsel admitted that despite the lack of service of the notice by the court, he

did have actual notice of the hearing and planned to attend but that he “got

stuck … on [his] way” to the hearing and missed it. Tr. at 11. Finding

counsel’s motion alleging lack of service misleading, and his subsequent

explanation for his absence disingenuous, and further concluding that

“numerous delays in this case” had been caused by Farrow’s violation of

discovery rules and noncompliance with court orders, the trial court dismissed

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 Farrow’s counterclaim and third-party complaint with prejudice. Appellant’s

App. Vol. 2 at 21. This appeal ensued.2

Discussion and Decision
[8] Farrow appeals the trial court’s dismissal of her counterclaim and third-party

complaint pursuant to Indiana Trial Rule 41(E). A trial court’s ruling on a

Trial Rule 41(E) motion to dismiss is reviewed for an abuse of discretion. Ind.

Dep’t of Nat. Res. v. Ritz, 945 N.E.2d 209, 213 (Ind. Ct. App. 2011), trans. denied.

The trial court abuses its discretion when its decision is against the logic and

effect of the facts and circumstances before it. Id. On appeal, we will affirm

the trial court if any evidence supports its decision. Belcaster v. Miller, 785

N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied.

[9] Trial Rule 41(E) provides in relevant part,

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.

“The purpose of this rule is to ensure that plaintiffs diligently pursue their

claims and to provide an enforcement mechanism whereby a defendant, or the

2
Third-Party Defendant did not file a brief in this appeal.

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 court, can force a recalcitrant plaintiff to push his case to resolution.” Olson v.

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

quotation marks omitted), trans. denied. Indeed, the burden of moving the

litigation forward is on the plaintiff, not the court or the defendant. Id. Trial

Rule 41(E) grants the trial court discretion to dismiss a case for failure to

prosecute and for violations of trial rules and orders of the court entered

pursuant to the trial rules. See Wright v. Miller, 989 N.E.2d 324, 328 (Ind. 2013)

(citing Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App. 1993)). “[W]hile

the trial courts generally ‘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. (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)). Stated

another way, “the court need not impose a sanction less severe than dismissal

where the record of dilatory conduct is clear.” Lee v. Friedman, 637 N.E.2d

1318, 1321 (Ind. Ct. App. 1994).

[10] In determining whether a trial court abused its discretion in dismissing an

action pursuant to Trial Rule 41(E), we generally consider several factors

including,

(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

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 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.

Belcaster, 785 N.E.2d at 1167. 3 The weight any particular factor has in a case

depends on the facts. Id.

[11] Here, the underlying claim in this case was filed in 2010, Farrow’s counterclaim

and third-party complaint were filed in 2011, and the matters have been

pending before the trial court for more than five years. Farrow concedes that

she played a part in a recent six-month period of inactivity in the case, and that

“nothing of substance occurred” from January to July 2016, simply because

“[b]oth parties were dilatory – neither conducted discovery, filed any motions,

or sought hearings.” Appellant’s Br. at 5. She argues that because “the only

remaining matter outstanding was a trial date … the parties were either equally

prejudice[d], or not at all” by any delay in her prosecuting her claims and thus,

the trial court’s dismissal of those claims was “too drastic.” Id. at 9, 14. These

arguments downplay Farrow’s behavior and ignore the multitude of events

leading up to the trial court’s determination that dismissal of her claims was

warranted.

3
Our supreme court has noted that this analysis is applicable only to dismissals under Trial Rule 41(E) for
failure to prosecute and not to dismissals for failure to comply with the trial rules and orders of the court,
including discovery violations. See Wright, 989 N.E.2d at 328 n.4. Here, the trial court’s dismissal appears
based both on Farrow’s failure to prosecute and on her violations of court orders and discovery violations.
Thus, we will consider the factors.

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[12] The record indicates that Smith, Third-Party Defendant, and the trial court

have tried to move this case along in an orderly fashion, only to be constantly

and consistently interrupted by delays caused by Farrow. Her numerous

discovery violations, noncompliance with court orders, and failures to appear

frustrated the process and caused the court to continually reset scheduled trial

dates. The trial court warned Farrow and attempted less drastic measures than

dismissal of her claims on several occasions, apparently to no avail. After a

recent period of inactivity, and in a final attempt to get all pending matters

resolved, the trial court issued a notice ordering the parties to appear before the

court on August 3, 2016. Neither Farrow nor her attorney appeared, and the

trial court found counsel’s subsequent explanation for failing to appear and for

causing yet another delay to be lacking in “candor” and “disingenuous, at

best.” Appellant’s App. Vol. 2 at 20. Indeed, it was not until the trial court

issued its rule to show cause why her claims should not be dismissed that

Farrow was finally stirred into action, as opposed to her diligently pursuing her

claims.

[13] It is unquestionable that Farrow’s repeated discovery violations and lengthy

history of having deliberately proceeded in a dilatory fashion weighs heavily in

favor of the trial court’s determination that a Trial Rule 41(E) dismissal was

warranted. Based upon the facts presented, we cannot say that the trial court’s

dismissal of Farrow’s counterclaim and third-party complaint is against the

logic and effect of the facts and circumstances before the court. Therefore, we

affirm.

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[14] Affirmed.

Baker, J., and Barnes, J., concur.

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