Credit Bureau Collection Services, Inc. v. Rebecca Alsman, Sheila K. Riggs, Ashley Phillips, Charles R. Rogers, Betsy M. Wilson, David Wilson, and Julia Robbins (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2019
• Docket: 18A-SC-2663
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 30 2019, 11:09 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 THE APPELLANT Timothy E. Stucky Stucky, Lauer & Young, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Credit Bureau Collection April 30, 2019 Services, Inc., Court of Appeals Case No. Appellant-Plaintiff, 18A-SC-2663 Appeal from the Shelby Superior v. Court The Honorable David N. Riggins, Rebecca Alsman, Sheila K. Judge Riggs, Ashley Phillips, Charles Trial Court Cause Nos. R. Rogers, Betsy M. Wilson, 73D02-1709-SC-924 David Wilson, and Julia 73D02-1709-SC-936 Robbins, 73D02-1709-SC-942 73D02-1709-SC-943 Appellees-Defendants. 73D02-1709-SC-946 73D02-1709-SC-947 73D02-1709-SC-953

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 1 of 6 Case Summary [1] On August 8, 2018, Credit Bureau Collection Services, Inc. (“CBCS”) was

scheduled to appear at 1:30 p.m. to show cause as to why its cases against

Rebecca Alsman, Sheila K. Riggs, Ashley Phillips, Charles R. Rogers, Betsy M.

Wilson, David Wilson, and Julia Robins (collectively “Appellees”) should not

be dismissed by the court’s Indiana Trial Rule 41(E) motion. CBCS’s counsel

arrived thirty minutes late after mistakenly going to the wrong courtroom.

When counsel arrived around 2:00 p.m., he was informed that CBCS’s seven

small-claims cases had been dismissed with prejudice. CBCS’s motions for relief

and reinstatement of those cases were denied. CBCS appeals, claiming an abuse

of discretion. We affirm.

Facts and Procedural History [2] CBCS is a collection agency conducting business within the state of Indiana. In

September of 2017, CBCS filed seven small claims actions in Shelby Superior

Court 2. Insufficient service was returned on five of the seven cases. Of the two

cases where service was achieved, the first was addressed on November 7, 2017,

at an initial hearing where Alsman and CBCS entered into an agreed judgment;

however, that agreement was denied on November 8, 2017, for exceeding the

small-claims jurisdictional limit. The second of the two serviced cases was

originally scheduled for November 20, 2017, but was rescheduled for January

22, 2018, on Rigg’s motion. Neither party appeared at the bench trial on

January 22, and the case was closed pending further action.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 2 of 6 [3] On June 7, 2018, the court issued Rule 41(E) motions for all seven of CBCS’s

cases and scheduled them to be heard on August 8, 2018, at 1:30 p.m. in Shelby

Superior Court 2. On July 16 and 17, 2018, CBCS filed its responses to the

court’s Rule 41(E) motions and filed its alias notice of claims, all of which were

scheduled for hearings on September 24, 2018.

[4] On August 8, 2018, counsel arrived at Court 1 at 1:30 p.m. rather than Court 2,

where CBCS’s Rule 41(E) hearings were set to be heard. Riggs was present in

Court 2 for the scheduled hearing. Counsel arrived in Court 2 shortly before

2:00 p.m., almost 30 minutes late and was informed that CBCS’s seven cases

had been dismissed with prejudice. On September 7, 2018, CBCS filed motions

for relief from judgment and reinstatement in all seven of its dismissed cases

pursuant to Rules 41(F) and 60(B)(2). On September 12, 2018, the court denied

CBCS’s requests for relief from judgment and reinstatement of proceedings.

Discussion and Decision I. Dismissal

[5] Trial Rule 41(E) directs trial courts to order a hearing for the purpose of

dismissing a case if no action has been taken in sixty days and to dismiss a case

if a party does not show sufficient cause at or before a hearing. Ind. Trial R.

41(E). We review the trial court’s dismissal for an abuse of discretion. Deutsche

Bank Nat’l Trust Co. v. Harris, 985 N.E.2d 804, 813 (Ind. Ct. App. 2013). We

consider several factors when deciding whether or not a trial court has abused

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 3 of 6 its discretion by dismissing a case for failure to prosecute: (1) length of the

delay, (2) the reason for the delay, (3) the degree of the plaintiff’s personal

responsibility, (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 his

attorney, (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 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 the threat

of dismissal as opposed to diligence on the plaintiff’s part. Id. at 813–14.

[6] CBCS has failed to establish that the trial court abused its discretion by

dismissing its claims. It is uncontested that for five of CBCS’s seven cases there

was inactivity of almost seven months between filing and the court’s Rule 41(E)

motion. Additionally, regarding the two serviced-cases in Shelby County,

CBCS neglected to diligently pursue those claims after November 7, 2017, even

failing to appear at a bench trial scheduled for January 22, 2018. Counsel’s

failure to appear in a timely manner on August 8, 2018, lengthened what was

already a substantial delay. “‘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.’” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.

2003) (quoting Hill v. Duckworth, 679 N.E.2d 938, 939 (Ind. Ct. App. 1997),

trans. denied. Further, it seems clear from the record that CBCS was only stirred

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 4 of 6 into effectuating service on the majority of its defendants by the threat of

dismissal, yet still failed to appear in a timely manner to a Rule 41(E) dismissal

hearing. Though there is a strong preference for deciding cases on the merits,

the trial court found numerous factors that weigh in favor of dismissal. CBCS

has failed to establish that an abuse of discretion occurred.

II. Denial of Relief and Reinstatement

[7] Indiana Trial Rule 60(B)(2) states that a court may, on motion, relieve a

moving party from judgment on any grounds that are just. Ind. Trial R.

60(B)(2). The burden is on the movant to establish grounds for relief under Rule

60(B). Deutsche Bank Nat’l Trust Co, 985 N.E.2d at 813. The trial court has

discretion in granting or denying a Rule 60(B) motion, a decision which we

review for an abuse of discretion. Assocs. Fin. Serv. Co. v. Knapp, 422 N.E.2d

1261, 1263 (Ind. Ct. App. 1981). An abuse of discretion occurs where the trial

court’s decision is “against the logic and effect of the facts and circumstances

before the court, or the reasonable, probable and actual deductions to be drawn

therefrom.” Id. In reviewing whether an abuse of discretion has occurred, we

look to factors such as undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiency by amendment previously

allowed, undue prejudice to the opposing party, and futility of the amendment.

Turner v. Franklin Cty. Four Wheelers Inc., 889 N.E.2d 903, 906 (Ind. Ct. App.

2008).

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2663 | April 30, 2019 Page 5 of 6 [8] CBCS and its counsel are responsible for undue delay in the prosecution of the

proceedings. The last time CBCS pursued these cases before the trial court’s

Rule 41(E) motion was on November 7, 2018, when CBCS entered into an

agreed judgment (which was denied the next day) with Alsman. Next, CBCS

failed to appear at a January 22, 2018 bench trial. Almost 5 months later, the

trial court entered a Rule 41(E) motion to dismiss with a hearing scheduled for

August 8, 2018. This prompted CBCS to effectuate service on the Appellees and

file both a response to the court’s Rule 41(E) motion and an alias notice of

claims. However, CBCS’s counsel failed to appear in a timely manner for the

Rule 41(E) hearing, and as the trial court observed at the time, “[CBCS] has

swung and missed on this twice in my court . . . .” In conclusion, the trial court

did not abuse its discretion by finding an undue delay and denying CBCS’s

motions for relief from judgment and reinstatement. CBCS and its counsel were

responsible for the undue delay of its cases and wasting judicial resources.

[9] The judgement of the trial court is affirmed.

Crone, J., and Tavitas, J., concur.

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