Recent Indiana Court of Appeals Decision Reiterates The Need for Plaintiff's Counsel to Push Their Cases Forward
Recently, the Indiana Court of Appeals affirmed a trial court's dismissal of a negligence case due to Plaintiff's lawyer's failure to push the case forward.
In the case pending before the Indiana Court of Appeals titled Teresa Parnell and Patrick Parnell v. Agricor, Inc., Steinberger Construction, Inc., E&B Paving, Inc., and Keith Sullivan Excavating, Inc., case number, 18A-CT-399, the Plaintiffs had filed a lawsuit against several Defendants after a construction project next to their home in Marion allegedly resulted in increased water flow onto their property. The Plaintiffs alleged in their lawsuit that this led to flooding in their basement after heavy rain in March 2013.
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After more than two years passed without activity in the lawsuit, the trial court set a Trial Rule 41(E) hearing, initiating proceedings to dismiss the case for failure to prosecute. Plaintiffs' counsel filed a motion with the trial court notifying it that the reason the case had been delayed was due to unforeseen circumstances. So, the trial court reset the hearing for about six months later and then dismissed the case due to the continued lack of prosecution.
With their lawsuit dismissed by the trial court, the Plaintiffs appealed the trial court's dismissal of their lawsuit to the Indiana Court of Appeals which noted that “[s]imply put, the [Plaintiffs'] 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”.
The Court of Appeals further noted that the Plaintiffs "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."
In closing the Court of Appeals held that “[d]espite 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 takeaway from this decision by the Indiana Court of Appeals is that it is very important for Plaintiff's counsel to diligently and timely move cases forward. Otherwise, the lawsuit might get dismissed for failure to prosecute.
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