Opinion
23A-CT-3073
05-06-2024
Andreas Andreou, Appellant-Plaintiff v. Konstantinos ("Gus") Bisioulis, Olympia Greek Cuisine, Inc., d/b/a Athenian Greek Cuisine, Appellee-Defendant
ATTORNEY FOR APPELLANT Lloyd P. Mullen Mullen & Associates, P.C. Crown Point, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court, The Honorable Calvin D. Hawkins, Judge Trial Court Cause No. 45D02-2209-CT-000881
ATTORNEY FOR APPELLANT
Lloyd P. Mullen
Mullen & Associates, P.C.
Crown Point, Indiana
Altice Chief Judge and Bradford Judge concur.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] On September 9, 2022, Andreas Andreou filed a multi-count complaint against Konstantinos ("Gus") Bisioulis, Olympia Greek Cuisine, Inc., d/b/a Athenian Greek Cuisine, and others. A year later, on October 16, 2023, Gus Bisioulis and Olympia Greek Cuisine, Inc., d/b/a Athenian Greek Cuisine filed a motion to dismiss under Trial Rule 41(E), which the trial court granted the same date. Andreou appeals, raising three issues that we restate as the following dispositive issue: Whether the trial court erred when it granted the Trial Rule 41(E) motion to dismiss without first holding a hearing.
[¶2] We reverse and remand. Facts and Procedural History
[¶3] On September 7, 2022, Andreou filed a six-count complaint against Konstantinos ("Gus") Bisioulis; Olympia Greek Cuisine, Inc., d/b/a Athenian Greek Cuisine; Helen Bisioulis; Joana Bisioulis; and Maria Kritikos alleging breach of fiduciary duty, conversion, fraud, and slander and seeking fees. The dispute arose from a "failed partnership to own and operate a restaurant." Appellant's Br. at 4. On October 25, 2022, the trial court approved and entered a Stipulation of Dismissal dismissing Helen Bisioulis; Joana Bisioulis; and Maria Kritikos. Remaining in the case were Konstantinos ("Gus") Bisioulis and Olympia Greek Cuisine, Inc., d/b/a Athenian Greek Cuisine (collectively, "Defendants"). Defendants filed their answer on December 1, 2022.
[¶4] On April 6, 2023, Andreou requested a status hearing, which was held May 23, 2023. The trial court entered a Case Management Order setting the matter for secondary trial setting on June 10, 2024; primary trial setting on September 21, 2026; and final pretrial conference on June 7, 2024, with the following deadlines: completion of pretrial discovery by December 2, 2024; filing of dispositive motions by January 7, 2025; exchange of witness lists by May 3, 2024; and filing of motions in limine by May 13, 2024. On October 16, 2023, Defendants filed their "Trial Rule 41E Motion to Dismiss," seeking dismissal of the complaint because 146 days have passed with no prosecution of the case." Appellant's App. Vol. II at 17. The trial court granted the motion on the same date without a hearing or waiting for any response from Andreou.
[¶5] On October 19, 2023, Andreou filed a Motion to Correct Errors and to Set Aside Judgment. On November 1, Defendants filed their Statement in Opposition to Motion to Correct Error. Pursuant to Trial Rule 53.3(A), the motion to correct error was deemed denied on December 3, 2023. Andreou now appeals the dismissal of the complaint against Defendants.
Discussion and Decision
Standard of Review
[¶6] Andreou contends that the trial court erred when it dismissed his complaint under Trial Rule 41(E) without first holding a hearing. Indiana Trial Rule 41(E) provides:
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. Dismissal may be withheld, or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.
[¶7] "[A] court is required to hold a hearing prior to dismissing a case for failure to prosecute." Starr Indem. & Liab. Co. v. NIBCO Inc., 23A-PL-1343, slip op. at *3 (Ind.Ct.App. Feb. 26, 2024), trans. pending; see, e.g., Rumfelt v. Himes, 438 N.E.2d 980, 984 (Ind. 1982) ("Trial Rule 41(E) clearly requires a hearing on a motion to dismiss[.]"); Caruthers v. State, 58 N.E.3d 207, 214 (Ind.Ct.App. 2016) (holding that T.R. 41(E) requires a trial court to hold a hearing, not just schedule one, before dismissing a case). Judgments of dismissal entered without such a hearing are prone to reversal. See generally Rumfelt, 438 N.E.2d 980; Smith v. State, 90 N.E.3d 691 (Ind.Ct.App. 2017), trans. denied; Caruthers, 58 N.E.3d 207. "The Caruthers court recognized that 'there may be circumstances where a trial court's dismissal of an action without first holding a hearing will not constitute reversible error' but did not elaborate further, as it determined that strict compliance with the hearing requirement was warranted in that case." Starr Indem. &Liab. Co., 2024 WL 763429 at *3 (citing Caruthers, 58 N.E.3d at 214 n.7.).
[¶8] "We will reverse a Trial Rule 41(E) dismissal for failure to prosecute 'only for a clear abuse of discretion.'" Caruthers v. State, 48 N.E.3d 207, 210 (Ind.Ct.App. 2016) (quoting Robertson v. State, 687 N.E.2d 223, 224 (Ind.Ct.App.1997), trans. denied). "'An abuse of discretion occurs if the decision of the trial court is against the logic and effect of the facts and circumstances before it.'" Caruthers, 58 N.E.3d at 210 (quoting Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d 853, 856 (Ind.Ct.App.2010)).
[¶9] We note that Defendants have filed no appellees' brief. "When the appellee has failed to submit an answer brief we need not undertake the burden of developing an argument on the appellee's behalf. Rather, we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error." Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (citing Gibson v. City of Indianapolis, 242 Ind. 447, 448, 179 N.E.2d 291, 292 (1962)); see also Burris III v. Bottoms Up Scuba Indy, LLC, 181 N.E.3d 998, 1002-03 (Ind.Ct.App. 2023), trans. not sought. "Prima facie error in this context is defined as, 'at first sight, on first appearance, or on the face of it.'" Id. (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind.Ct.App.1999)). Where an appellant is unable to meet this burden, we will affirm. Id.
[¶10] Again, the trial court must hold a hearing before granting a motion to dismiss under Trial Rule 41(E). Starr Indem. &Liab. Co.., slip op. at *3; see also Rumfelt, 438 N.E.2d at 984. Here, the trial court held no such hearing. Importantly, the trial court granted Defendants' Trial Rule 41(E) motion to dismiss on October 16, 2023, the same day it was filed. Appellant's App. Vol. II at 16. At that time, none of the deadlines in the case management order had passed, all pretrial deadlines were several months away for the primary trial setting, and the primary trial setting was nearly two years away. Even the secondary trial setting, for which no pretrial deadlines were specified in the case management order, was more than six months away. Additionally, Andreou requested a reconsideration of the ruling within a mere three days. This case presents no facts or circumstances to indicate at first sight, on first appearance, or on the face of the facts before us that warrants from the general requirement of holding a hearing before entering a Trial Rule 41(E) dismissal. Therefore, we reverse the trial court's order dismissing the complaint against Defendants and remand to permit Andreou to prosecute the Complaint.
[¶11] Reversed and remanded.
Altice, C.J., and Bradford, J., concur.