Michael A. Bower and Rebecca M. Bower, Appellants-Plaintiffs v. Juanita Lunsford,1 Appellee-Defendant (2025)

MEMORANDUM DECISION

Case Summary

[1] Michael A. Bower and Rebecca M. Bower appeal the trial court's dismissal of their complaint against Juanita Lunsford for failure to prosecute under Indiana Trial Rule 41(E). Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] In 1975, Lunsford purchased a property on North Private Road 90 West in Brazil, Indiana, that included a small lake. In August 2014, the Bowers purchased a 20-acre parcel of land on North State Road 59 in Brazil that included a two- or three-acre lake. According to the Bowers, the properties are “across the highway” from each other. Appellants’ Br. p. 14. The Bowers bought their land from United Brotherhood of Carpenters and Joiners of America, Local No. 133 (“Local No. 133”). Local No. 133 used real-estate agent Judi Evelo of Century 21 Advantage (collectively “Century 21”) to sell the land. The Bowers later built a house on the land. The Bowers claim that in May 2018, their lake started receding and “left the shore an unattractive mud bog.” Appellants’ App. Vol. II p. 27. Upon investigation, they “learned that an underground coal mine was beneath the lake which drained it.” Id. at 27-28.

[3] In August 2020, the Bowers, represented by attorney Randolph Leerkamp, sued Local No. 133, Century 21, and Lunsford. The complaint contains two counts against Local No. 133 and Century 21—fraud and “recission”—and one count against Lunsford—violation of Indiana Code chapter 14-27-7.5 regarding the regulation of dams. See id. at 26-30. As to Lunsford, the complaint contains the following allegations:

l7. Ms. Lun[ ]sford owned property located [on North Private Road 90 West].

18. Ms. Lun[ ]sford maintained a dam on her property which supported all of the lakes.

l9. Ms. Lun[ ]sford's dam failed and drained the lakes above her.

20. Ms. Lun[ ]sford has failed and refused to repair her dam.

Id. at 28.

[4] In September 2021, Leerkamp moved to withdraw his appearance based on “an irreconcilable disagreement with regard to how to proceed with this matter.” Appellee's App. Vol. II p. 31. The trial court granted the motion, and Leerkamp withdrew.

[5] The following month, Local No. 133 moved to dismiss the Bowers’ complaint for failure to prosecute under Indiana Trial Rule 41(E). The trial court set a hearing for January 2022, but it was reset to March 17, 2022. A couple of days before the hearing, Leerkamp reentered his appearance for the Bowers and filed a memorandum in opposition to the motion to dismiss. In the memorandum, Leerkamp claimed that his dispute with the Bowers had been “resolved,” and the Bowers were “prepared to move forward” with the case. Id. at 46. Because of the “last-minute” reentry of his appearance, Leerkamp “attend[ed] the hearing by telephone.” Id. at 50.

[6] On June 1, the trial court dismissed the case for failure to prosecute “as to all [d]efendants.” Id. at 51. The Bowers then moved to reinstate the case. They acknowledged that “nothing happened in the case for 6 1/212 months” (from September 2021 to March 2022) but noted that they were unrepresented during that time. Id. at 54. In addition, they claimed that during “all other times the case was diligently prosecuted,” highlighting that Leerkamp had spent 53 hours on the case. Id. The court reinstated the case on June 17.

[7] There was no activity on the CCS from June 17, when the case was reinstated, to November 14, when the Bowers moved to compel Lunsford to allow them and their experts to inspect her property. The trial court granted the motion to compel on November 18. See id. at 69.

[8] There was again no substantive activity on the CCS from November 18, 2022, when the trial court granted the motion to compel, to December 7, 2023, when Local No. 133 filed its second motion to dismiss for failure to prosecute.² Century 21 and Lunsford joined Local No. 133's motion, and the Bowers filed a memorandum in opposition to the motion to dismiss. A hearing was held in February 2024, and Leerkamp represented the Bowers at the hearing. After the hearing, the court dismissed the case as to all defendants. The Bowers moved to reinstate their claim against Lunsford only, which the court denied.

[9] The Bowers now appeal the dismissal of their claim against Lunsford only.³ Shortly after the Bowers filed their notice of appeal, Lunsford passed away at the age of ninety-one.

Discussion and Decision

[10] The Bowers contend the trial court erred in dismissing their claim against Lunsford for failure to prosecute under Trial Rule 41(E). We review such dismissals for “a clear abuse of discretion.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied.

[11] Trial Rule 41(E) provides in pertinent part:

[W]hen 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 will diligently pursue their claims. The rule provides an enforcement mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff to push his case to resolution.” Belcaster, 785 N.E.2d at 1167 (quotation omitted). The burden of moving the litigation forward is on the plaintiff, not the court. Id. “It is not the duty of the trial court to contact counsel and urge or require him to go to trial, even though it would be within the court's power to do so.” Id. (quotation omitted). “Courts cannot be asked to carry cases on their dockets indefinitely and the rights of the adverse party should also be considered. [The adverse party] should not be left with a lawsuit hanging over his head indefinitely.” Id. (quotation omitted).

[12] We balance several factors when determining whether a trial court abused its discretion in dismissing a case for failure to prosecute: (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 that 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. Id. The weight any factor has depends on the facts of the case. Id. “[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.

[13] Here, several factors favor the trial court's Trial Rule 41(E) dismissal of the Bowers’ claim against Lunsford. First, from June 17, 2022, when the trial court reinstated the complaint, to November 14, 2022, when the Bowers moved to compel, there was no activity on the CCS. Then, from November 18, 2022, when the trial court granted the motion to compel, to December 7, 2023, when the second motion to dismiss for failure to prosecute was filed, there was no substantive activity on the CCS. These periods of nearly five and thirteen months are substantially longer than the sixty days required by Trial Rule 41(E). See id. at 1168 (finding ten-month delay supported dismissal for failure to prosecute).

[14] Second, the Bowers do not give any reason for the delay in litigating their claim against Lunsford. Their analysis focuses on events that occurred from September 2020 to May 2022, which is before the first motion to dismiss for failure to prosecute was granted and the complaint was reinstated in June 2022. See Appellants’ Br. pp. 10-12. The only reason they give for a delay after that time is a letter their attorney sent in July 2023 about deposing real-estate agent Evelo that no one apparently responded to. See Appellants’ App. Vol. II p. 44; Appellants’ Br. p. 12. But the Bowers’ fraud and “recission” claims against Local No. 133 and Century 21 are distinct from their claim against Lunsford. In any event, even if we considered the fact that Leerkamp sent a letter in July 2023, the Bowers do not explain why there was no activity from then until December 2023 when the second motion to dismiss for failure to prosecute was filed. See Belcaster, 785 N.E.2d at 1168 (finding lack of explanation supported dismissal for failure to prosecute).

[15] Third, the trial court had already dismissed this case for failure to prosecute in June 2022. Although the trial court reinstated the case, the Bowers and their attorney were on notice that it was their burden to keep the litigation moving forward. Nevertheless, after the case was reinstated, they allowed the case to linger with no activity on the CCS for two periods, one for nearly five months and the other for nearly thirteen months.

[16] Finally, the passage of time has no doubt caused prejudice to Lunsford, as she has since passed away.

[17] We recognize that there are factors that favor allowing the Bowers to litigate their claim against Lunsford. First, there is a preference for deciding cases on the merits. Second, it's unclear who is responsible for the delay—the Bowers, their attorney, or a combination of the two. But after balancing the factors favoring the trial court's dismissal with those that favor allowing the Bowers to litigate their claim against Lunsford, the Bowers have not established that the court clearly abused its discretion.

[18] Affirmed.

FOOTNOTES

2.   The only activity was the entry of appearances for some of the defendants.

3.   Because the Bowers are no longer pursuing their claims against Local No. 133 and Century 21, those defendants have filed a notice of non-involvement with this Court.

Vaidik, Judge.

Chief Judge Altice and Judge Scheele concur. Altice, C.J., and Scheele, J., concur.