The Estate of Carrie Etta Mills-McGoffney v. Vigo County Prosecutor, Terry Modesitt, Vigo County Adult Protective Services, Jerry Hawk, Angela Hall
2017 Ind. App. LEXIS 232
Ind. Ct. App.2017Background
- Carrie McGoffney (decedent) died Nov. 20, 2012; her daughter Kelly McGoffney was appointed personal representative of the estate.
- Kelly (pro se) filed a wrongful-death/negligence complaint Nov. 20, 2014 against the Vigo County Prosecutor, Adult Protective Services (APS), and Margaret Ditteon (Personal Resource Management).
- The trial court struck the complaint (Apr. 8, 2015) because a non‑attorney personal representative had filed on behalf of the estate and gave leave to file an amended complaint signed by counsel by May 8 (later extended to June 1).
- The estate did not file a timely amended complaint; Kelly repeatedly filed pro se motions, then failed to appear at a July 1, 2015 dismissal hearing, and the court dismissed the action without prejudice under Trial Rule 41(E).
- One year later Kelly filed a Trial Rule 41(F) motion to reinstate the original complaint; the trial court denied reinstatement and related motions (July 8, 2016). Kelly appealed; defendants moved to dismiss the appeal as untimely, which the appellate motions panel denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying the Rule 41(F) motion to reinstate the complaint | McGoffney argued she prosecuted the case zealously, had good cause, and that dismissal should be set aside; also argued the complaint need not be filed by counsel | Defendants argued the dismissal for failure to prosecute was proper because no amended complaint was filed after the original was stricken and plaintiff failed to appear at the dismissal hearing | Court held no abuse of discretion: plaintiff failed to show good cause or a reasonable delay; reinstatement denied |
| Whether earlier rulings (striking complaint; denying default judgment) can be appealed now | McGoffney argued the complaint was valid notwithstanding her pro se status and that defendants defaulted | Defendants argued those rulings were final earlier and Kelly forfeited appeal by not timely appealing | Court held those issues are forfeited; only the Rule 41(F) denial is reviewable now |
| Whether the late appeal deprived the appellate court of jurisdiction | Kelly contended the Rule 41(F) motion should permit review despite delay | Defendants asserted the Notice of Appeal was untimely and appeal should be dismissed | Court explained forfeiture of the right to appeal, but appellate jurisdiction can be retained; motions to dismiss were denied and appeal proceeds limited to Rule 41(F) denial |
| Applicability of "Journey’s Account" saving statute | McGoffney claimed the statute saved her action despite dismissal | Defendants argued the statute excludes negligence in prosecution of the action | Court held the statute does not apply to dismissals for failure to prosecute |
Key Cases Cited
- In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (forfeited right to appeal may be restored only for extraordinarily compelling reasons)
- State ex rel. Peoples Nat’l Bank & Trust Co. of Washington v. Dubois Circuit Court, 233 N.E.2d 177 (Ind. 1968) (motion to reinstate does not replace or toll time for appeal)
- Ind. Dep’t of Nat. Res. v. Ritz, 945 N.E.2d 209 (Ind. Ct. App. 2011) (dismissal under Trial Rule 41(E) is a final appealable order)
- Cloyd v. Pasternak, 791 N.E.2d 757 (Ind. Ct. App. 2003) (standard of review: abuse of discretion for reinstatement rulings)
- Natare Corp. v. Cardinal Accounts, Inc., 874 N.E.2d 1055 (Ind. Ct. App. 2007) (appellate review of judicial discretion confined to case facts and law interpretation)
- Blackman v. Gholson, 46 N.E.3d 975 (Ind. Ct. App. 2015) (Journey’s Account statute does not save claims dismissed for plaintiff’s negligence in prosecution)