Opinion
24A-CT-666
10-15-2024
Frank Stork, Appellant-Plaintiff v. Franklin D. Julian, William A. Keller, Anthony R. Stevens and Sweeney Julian Personal Injury Trial Attorneys, P.C., Appellees-Defendants
APPELLANT PRO SE Frank E. Stork Chicago, Illinois ATTORNEYS FOR APPELLEES Edward J. Chester Laura L. Ezzell J. Thomas Vetne Chester Law Office Elkhart, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Jamie C. Woods, Judge Trial Court Cause No. 71D06-2208-CT-311
APPELLANT PRO SE Frank E. Stork Chicago, Illinois
ATTORNEYS FOR APPELLEES Edward J. Chester Laura L. Ezzell J. Thomas Vetne Chester Law Office Elkhart, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] Frank Stork ("Stork") brings this pro se appeal challenging the dismissal of his legal malpractice claim under Trial Rule 41(E). Concluding that the Trial Rule 41(E) motion was untimely, we reverse and remand for further proceedings.
Facts and Procedural History
[¶2] On August 18, 2022, Stork filed a legal malpractice claim against Sweeney Julian Personal Injury Trial Attorneys, P.C., and three attorneys (collectively, "the Defendants"). On October 18, 2022, the Defendants moved to dismiss under Trial Rule 41(E) for failure to prosecute. The next day, the Defendants filed a motion for partial dismissal under Trial Rule 12(B)(6), alleging that Count II of the complaint failed to state a claim upon which relief could be granted. The trial court held a hearing and, on January 30, 2023, (1) denied the motion to dismiss under Trial Rule 41(E) and (2) granted the motion to dismiss under Trial Rule 12(B)(6), ultimately dismissing Count II of the complaint.
[¶3] On August 4, 2023, Stork's counsel moved for leave to withdraw. On August 22, 2023, Stork filed a "Motion for Stay and Objection to the Withdrawal of Counsel." Appellees' App. Vol. II p. 45. Therein, Stork challenged the motion to withdraw, alleging counsel was in breach of contract. Stork requested that, "in the event that th[e] court . . . allow[s] the withdrawal" of counsel, the court grant a "stay in th[e] matter until . . . Stork obtain[ed] new counsel." Id. at 47. The trial court held a hearing and, on October 12, 2023, (1) granted counsel's motion to withdraw and (2) denied Stork's request for a stay of the proceedings. At that point, Stork proceeded pro se.
[¶4] On November 22, 2023, Stork filed a document alerting the trial court to a change in address. On December 11, 2023, Stork filed a document titled "Motion for Stay to Compel Prior Counsel to Forward Plaintiff's Case in Chief to . . . Stork." Id. at 51. Therein, Stork sought a stay of the case "until withdrawn counsel . . . forward[ed] to . . . Stork all documents and filings that he has in his possession pertaining to th[e] case, including any documents of witnesses as 'discovery.'" Id. Ten days later, the Defendants moved to dismiss under Trial Rule 41(E). The trial court held a hearing on February 2, 2024, and took the matter under advisement. On February 13, 2024, the court granted the Defendants' motion and dismissed the case with prejudice. Stork now appeals.
Discussion and Decision
[¶5] Trial Rule 41(E) allows a defendant to move to dismiss a civil case "when no action has been taken in [the] . . . case for a period of sixty . . . days[.]" As our Supreme Court recently clarified, a Trial Rule 41(E) motion is timely "only if it is filed 'after the sixty-day period has expired and before the plaintiff resumes prosecution.'" Foster v. First Merchants Bank, N.A., 235 N.E.3d 1251, 1254 (Ind. 2024) (quoting State v. McClaine, 300 N.E.3d 342, 344 (1973)). We review dismissal under Rule 41(E) for an abuse of discretion. Id. A trial court abuses its discretion if its decision "misinterprets the law or clearly contravenes the logic and effect of the facts and circumstances before the court." Id. (quoting Smith v. Franklin Twp. Cmty. Sch. Corp., 151 N.E.3d 271, 273 (Ind. 2020)).
[¶6] Here, the Defendants filed their Trial Rule 41(E) motion just ten days after Stork filed his "Motion for Stay to Compel Prior Counsel to Forward Plaintiff's Case in Chief to . . . Stork." Appellees' App. Vol. II p. 51. We proceed to analyze whether Stork's motion constituted a resumption of prosecution. If so, the Trial Rule 41(E) motion was untimely and should not have been granted.
[¶7] A plaintiff resumes prosecution by taking an action in the case that "evince[s] the . . . intent to move forward with litigation[.]" Foster, 235 N.E.3d at 1255. For example, in Foster, our Supreme Court identified resumption of prosecution based upon the plaintiff's request for a case management conference. Id.; see also Babchuk v. Ind. Univ. Health Tipton Hosp., Inc., 30 N.E.3d 1252, 1255 (Ind.Ct.App. 2015) (identifying a resumption of prosecution based upon a motion for a scheduling conference). On appeal, the Defendants focus on the portion of Stork's motion seeking a stay of the proceedings. They argue that seeking a stay does not evince the intent to resume prosecution, and Stork's motion was merely "a repeat attempt to stall[.]" Appellees' Br. p. 14. We note, however, that the motion was not limited to seeking a stay. Rather, Stork also requested assistance from the court in obtaining his litigation file from prior counsel. At an ensuing hearing, Stork's remarks to the court confirmed he sought a stay to avoid involuntary dismissal while Stork-at that point incarcerated-addressed the need to obtain the litigation file from prior counsel and, if necessary, secure new counsel. See Appellant's Supp. App. Vol. 2 p. 10-11. The Defendants acknowledge that Stork's motion was not limited to a request for a stay. See Appellees' Br. p. 10. However, they ask us to look past Stork's request for assistance in obtaining his litigation file, arguing that this aspect of Stork's motion was procedurally irregular under rules governing the discovery process. See Appellees' Br. p. 20 (referring to Trial Rules 26(F) and 34(C)). But we need not resolve how the motion fit into broader discovery procedures. Rather, the question before us is whether Stork's motion evinced his intent to move forward with the litigation, such that Stork was deemed to have resumed prosecution.
[¶8] All in all, in light of our Supreme Court's recent guidance in Foster, we conclude that Stork's motion-particularly his request for court assistance in obtaining his litigation file from prior counsel-reflected adequate intent to move the litigation forward such that the Trial Rule 41(E) motion was untimely.Because the Trial Rule 41(E) motion was untimely, we reverse the decision dismissing the case under Trial Rule 41(E) and remand for further proceedings.
We note that, in ruling on the Defendants' Trial Rule 41(E) motion, the trial court did not have the benefit of the Foster decision, which clarified pertinent timelines for successfully pursuing this type of motion.
[¶9] Reversed and remanded.
Vaidik, J. and Weissmann, J., concur.