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Grant v. Wal-Mart Stores3/13/2002
FOR PUBLICATION
OPINION - FOR PUBLICATION
Vickie Grant appeals the trial court's denial of her motion to correct error and the denial of her motion for the reinstatement of her personal injury case against Wal-Mart Stores, Inc., that was dismissed after she failed to appear at the pre-trial conference. Grant raises one issue for our review. However, we raise the following dispositive issue sua sponte: whether the trial court abused its discretion by dismissing Grant's suit without ordering a dismissal hearing.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
Grant retained Attorney Taffanee Woods-O'Neal ("Woods") to represent her in a personal injury suit against Wal-Mart. On March 23, 2001, Woods filed a motion to withdraw her appearance stating there had been a breakdown in the attorney/client relationship to the extent that Grant had refused to keep in contact with Woods. Woods' motion was granted on the same day. Attached to Woods' motion was a copy of a letter addressed to Grant dated February 1, 2001, wherein Woods informed Grant that due to the breakdown in communication she intended to withdraw from Grant's case. The letter also advised Grant to seek other counsel to aid her and that Woods would either forward her file to new counsel or make it available for Grant to pick up. The letter, however, did not include notice of the pre-trial conference or pre-trial order. Woods' motion to withdraw further stated that subsequent to the date of the letter, Woods released the file to Grant's husband and he informed Woods that Grant would seek other counsel.
The pre-trial conference had been set for April 19, 2001. Grant did not appear for the pre-trial conference and the trial court at that time dismissed her case. On April 30, 2001, Grant filed a motion for reinstatement, pro se, which was denied, and later filed a motion to correct error, which was also denied. This appeal ensued.
DISCUSSION AND DECISION
Ind. Trial Rule 16(K) provides that a trial court may "take such other action as may be appropriate" when "without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party at a pre-trial conference." "`Such other action' may include dismissal of the action under Rule 41(E)." Farinelli v. Campagna, 338 N.E.2d 299, 303 (Ind. Ct. App. 1975) (quoting 2 Harvey, Indiana Practice, ยง 16.6, at 180). T.R. 41(E) provides in pertinent part:
Failure to prosecute civil actions or comply with rules.
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 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. (Emphasis added.)
We will reverse a dismissal for failure to prosecute only in the event of an abuse of discretion, which occurs if the decision of the trial court is against the logic and effect of the facts and circumstances before it. Metcalf v. Estate of Hastings, 726 N.E.2d 372, 373-74 (Ind. Ct. App. 2000), trans. denied. We will affirm if there is any evidence that supports the decision of the trial court. Id. at 374.
The plain language of T.R. 41(E) requires that the trial court "shall order a hearing for the purpose of dismissing such case." See Metcalf, 726 N.E.2d at 374 citing Rumfelt v. Himes, 438 N.E.2d 980, 983 (Ind. 1982). The trial court abused its discretion by summarily dismissing Grant's case a
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