Tony Petrovski v. Robert Neiswinger
85 N.E.3d 922
Ind. Ct. App. Recl.2017Background
- On April 17, 2013 Petrovski was injured in a car accident and retained attorney Samuel G. Vazanellis.
- Petrovski’s complaint was filed April 16, 2015 (one day before the two-year statute of limitations expired); attempted service by certified mail returned unsuccessful May 22, 2015; no further service attempts were made by Vazanellis.
- Petrovski periodically called Vazanellis through 2016 but received no responses; on August 25, 2016 the Indiana Supreme Court suspended Vazanellis from practicing law.
- Petrovski learned of the suspension in December 2016, retained new counsel in January 2017, and new counsel served the defendant on February 17, 2017 (about 22 months after filing).
- Defendant moved to dismiss under Indiana Trial Rule 41(E) for failure to prosecute (and also moved under Trial Rule 12(B)(5)); the trial court granted dismissal in a two-sentence order stated to be “without prejudice.”
- Because the statute of limitations had expired, the dismissal effectively prevented refiling; the Court of Appeals reversed, finding dismissal an abuse of discretion under the case’s unique facts (attorney’s abandonment and plaintiff’s inability to refile).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under Trial Rule 41(E) for failure to prosecute was proper | Petrovski argued dismissal was an abuse of discretion given his attorney’s complete abandonment and the fact dismissal barred refiling | Neiswinger argued long (≈20-month) inactivity and lack of service justified dismissal to prevent indefinite docket delay | Reversed: court held dismissal was an abuse of discretion given unique facts (attorney suspension/abandonment, lack of prejudice shown, inability to refile) |
| Whether plaintiff should be charged for attorney’s inaction | Petrovski argued his conduct was not sufficiently dilatory to justify dismissing his claim | Neiswinger argued client responsibility for counsel’s inaction justified dismissal | Court weighed factors and found client should not be fully penalized given counsel’s suspension and lack of prejudice to defendant |
| Whether lesser sanctions were adequate before dismissal | Petrovski argued dismissal was extreme and lesser measures could preserve the claim | Neiswinger argued dismissal appropriate after prolonged inaction | Court preferred deciding on the merits where possible and found lesser remedies appropriate in these circumstances |
| Effect of the trial court’s “without prejudice” label when limitations expired | Petrovski argued label was illusory because refiling was time-barred | Neiswinger relied on the form of the order | Court recognized label was functionally a dismissal with prejudice and considered that harm in reversing dismissal |
Key Cases Cited
- Belcaster v. Miller, 785 N.E.2d 1164 (Ind. Ct. App. 2003) (sets out nine-factor balancing test for Trial Rule 41(E) dismissals)
- Geiger & Peters, Inc. v. Am. Fletcher Nat’l Bank & Tr. Co., 428 N.E.2d 1279 (Ind. Ct. App. 1981) (upholds T.R. 41(E) dismissals where service not perfected for unreasonable time)
- McKinley, Inc. v. Skyllas, 77 N.E.3d 818 (Ind. Ct. App. 2017) (client generally bound by attorney’s actions; court discussed attribution of attorney misconduct to client)
- Caruthers v. State, 58 N.E.3d 207 (Ind. Ct. App. 2016) (dismissal is an extreme remedy and should be used sparingly)
- Raisor v. Jimmie’s Raceway Pub, Inc., 946 N.E.2d 72 (Ind. Ct. App. 2011) (Indiana rules lack a federal-equivalent 4(m) service deadline; court noted differences with FRCP 4(m))