*1 in the even Appellees, in favor junctions harm. irreparable showing of aof
absence reasons, reverse foregoing
For the in- preliminary denial courts' Net, American Mega against
junctions for a remand
Cash, Planet Cash injunctions of whether
determination opin- issued, consistent
should
ion. remanded.
Reversed J., DARDEN,
SHARPNACK, J., and
concur. ENVIRONMENTS, INC., d/b/a
OFFICE Appellant-Plaintiff,
McKelvey-Kell, CO. INSURANCE
LAKE STATES Co.,
Harleysville Insurance
Appellees-Defendants. 49A02-0408-CV-720.
No. of Indiana. Appeals
Court 29, 2005.
Aug.
against Lake States Company Insurance (col- Harleysville Company Insurance States"). lectively, "Lake Pursuant Tri- al Rule the trial court dismissed the prejudice lawsuit with aas sanction for noncompliance its order to mediate the case in accordance with local rules. Because we cannоt that the trial court abused its by discretion dismissing the in light action of Office Environments' dilatoriness and failure to proper follow the being channels for lieved mediate, from the order to we af- firm. History
Facts and Procedural Following collapse of its roof and consequent property damage and business interruption, Office Environments filed a claim with Lake A dispute States. arose regarding payment claim, of the and Office Environments filed a complaint alleging breach of contract and bad faith in Marion Superior in January Court 2001. The trial jury court set a 8, 2002, trial for January and, in accordance with Marion County Hansen, Lawrence M. Hansen 16.3(C)(1),1 Law Local Rule parties ordered the Firm, LLC, Fishers, IN, Appellant. to complete mediation of the case at least sixty days prior to the set trial date. Reynolds,
Thomas Todd Lewis, Lisa M. Threlkeld, Reynolds, LLP, Indianapolis, parties mutually selected John IN, Appellees. Trimble their mediator. Trimble agreed to mediator, serve as explained OPINION procedure his "usual for handling me-
VAIDIK, Judge. diations is similar to procedures uti- Summary Case lized most My mediators. rate is $200 Environments, hour, Inc. appeals per plus expenses reasonable to be trial court's dismissal of its complaint split equally between the parties pay- County 1. Marion governs Local Rule 16.3 (60) Al- completed Mediation is to be sixty days Dispute ternative Resolution. trial, Subsection C prior unlеss the mediation referral delineates when mandatory, mediation is good is vacated for Objec- cause shown. one such instance is when the in a tions to mediation be made within timely civil case have made a demand (15) days fifteen completion of the jury trial: management required conference Jury Civil Trials. All cases timely where a 16.1(A). made, demand for trial is 16.3(C)(1). County Marion Local R. pursuant to A.D.R. mandatory. called Frazier mediation," November On after days within аble him that inform circulat- began Trimble p. App. Appellant's Trimble then to be rescheduled. needed to schedule calendars March, February, calendars cireulated cireulated first Trimble after weeks Six However, in- April *3 counsel, calendars, Environments' Office not be they would Trimble formed available Frazier, to return yet had Ronald due September until mediation ready for Trimble, prompt- which to dates mediation thus, issues; Feb- in discovery ongoing to letter. a rеminder send Trimble ed calendars 2003, cireulated Trimble ruary to Lake a letter Thereafter, Frazier sent October, and November. September, for advis- Reynolds, counsel, Thomas States' af- until responded parties Neither medi- for unavailable be would that he reminder separate two sent Trimble ter and, February and January during ation however, file a did, parties The letters. requesting would any objection, absent trial, the continue joint motion for calendars resubmit Trimblе resetting the granted, court the trial which May 2002. March, and April, 16, 2008. for December trial March, 2001, sent Trimble In December calendars, Trimble reviewing the After Frazier both May calendars and April, 7, for November mediation the scheduled Meanwhile, Envi- Reynolds. and however, developed a con Trimble, 2008. the continue a motion filed ronments 'to the need parties flict, informed granted court trial The jury trial. for calendars reschedule, submitted and 11, June trial for reset motion The mе February, and March. January, re- the calendars reviewing After 2002. 6, 2004. March for was rescheduled diation counsel, scheduled Trimble turned filed a 26, 2003, Lake States On November Frazier, 2002; how- 16, April for trial, the trial which to continue motion resched- ever, asked granted.2 Additionally, Office a conflict. due to uled 2003, moved Frazier to con- In December filed another Environments counsel granted trial court The as Office trial. withdraw tinue 24, refused for June and reset because continuance once an additional provide 20083. retainer exhausted. had been initial retainer the mediation rescheduled Trimble Thereaf- the motion. granted trial court advised parties 3, 2002. Because May Law- engaged ter, Office ready for mediation not be they Trimble new counsel. as its Hansen rence 2002, media- howevér, May May, him that he informing letter Hansen sent calen- cancelled, Trimble sent tion had a conflict developed had September. July, August, dars 2004, mediation. March schedule to Trimble's respond slow Frazier consulting parties, After Trimble a letter sent so Trimble for dates request April the mediation rescheduled Be- Frazier. from response requesting a letter Meanwhile, sent Hansen 2004. calendars, their returned both fore Trimble, stated: which August July calendar Trimble's aware, I have substituted may be youAs scheduled Thereafter, filled. mat- in this for the as counsel 26, 2002. for November the mediation Plaintiff a new was dismissed granted the motion date. The While n_ was set. continuance, specify a new date it did I ter. was not involved in the selection Office Environments' contention that the
of mediators or agreements to retain trial court erred not allowing it to file a mediators this matter. I wanted to response to Lakes reply States' on the provide you a courtesy notification that motion to dismiss. In particular, Office my offices will not responsible for Environments claims that because of the any еxpenses in the event me- volume of attachments to reply, diation is unsuccessful in this matter. I trial court should given opportu- it an my have advised client that expenses all nity respond. While the at- materials are his responsibility and I will not be tached to Lake States' reply were volumi- nous, acting as they consisted of correspondence and agent his or requesting extension of credit mediator court filings that Office Environments was *4 relative to this matter. If this is not privy Moreover, to. the trial rules do not acceptable, please advise so that may we automatically allow a to file a re- act accordingly. sponse reply. Thus, to a we cannot that the trial court Id. at 155. Upon abused its receiving letter, by discretion denying Office requested Trimble Environments the opportu- each nity pay a to file a response retainer of to Lake $600 before the media- States' reply tion. Office Office rеsponse Environments refused to Environments' retainer, the motion to dismiss. Trimble cancelled the Turning now to the merits of the Lake States filed a motion to dismiss case, Office argues that the complaint Einvironments' with prej- trial court by erred dismissing its com udice. In support motion, of their Lake plaint pursuant to Indiana Trial Rule States cited Office Environments' refusal 41(E) for failing to comply with local rules to comply with the trial court's order that regarding mediation. particular, In the case be mediated in accordance with argues Emvironments that pursuant local rules. Office Environments filed a A.D.R. Rule 2.10 only sanction that the response, and Lake States filed a reply to trial court had the authority impose which it attached correspondence and the assessment of mediation costs and at court filings regarding the scheduling of torney fees. See Ind. Alternative Dispute the mediation. A hearing was held on Resolution Rule 2.10 ("Upon by Lake States' Motion to Dismiss during either party and hearing, the court which Office Environments pro- failed to impose against sanctions any attorney, or vide evidence that it was unable to pay party representative who fails comply requested Trimble's retainer. At the with rules, these mediation limited to as hearing, Office requested sessment of mediation costs attor and/or that it be able to respond to Lake States' ney fees relevant process."). Con reply. The trial court request. denied this sequently, Office Environments claims that Additionally, the trial court granted Lake its complaint must be reinstated. Office motion, States' and Office Environments argument mark, misses the filed a motion to errors, correct which was however, because the trial court was not denied following a hearing. Office Envi- sanctioning Office Environments for its ronments appeals. now failure to comply with the mediation rules.
Discussion and Decision Here, the triаl court ordered the Before we proceed with our sub to mediate the case. Mediation is contem- stantive analysis case, of this we plated address 16(A) Trial Rule and mandated Rule Trial Having decided Rules, which County Local Marion by the 2.10, we Rule controls, 41(E) not A.D.R. Marion Rule Trial authorized are ruling reverse we will note 16.3(C)(1) expressly Rule Local County 41(E) is there only where Rule Trial timely where "all cases provides v. Co. Dev. Rueth of discretion. abuse made, mediation trial is demand (Ind.Ct.App. Muenich, N.E.2d mandatory." 2 is Rule A.D.R. pursuant of discre An abuse 2004), denied. trans. with dismissal sanction The trial court's decision if the occurs tion Envi- to Office response inwas prejudice and effect logic clearly against comply failure ronments' cireumstances facts case-not misinterpreted court has if the or rulee-and violation 684, 686 Yost, law. Stoehr applica- therefore, Trial Rule trans. denied. (Ind.Ct.App.2002), Rule 2.10. A.D.R. rule-not ble part, pertinent Rulе Trial say that Further, states: 41(E) to Rule finding actions civil erred prosecute Failure 2.10 because Rule instead there govern rules. Whenever comply with to "assessment sanctions limits 2.10 comply a failure has been *5 attorney fees taken costs has been and/or no action of or when rules sup- (emphasis sixty [60] process." of period to the a relevant case in a civil or party a court, of than motion on Here, the days, process-other the plied). hearing More- a order really started. shall own scheduling-never on its case. dismissing a trial such violating of purpose for the over, limit sanctions to dis- order and attor- enter costs shall to The court to order plaintiff if the costs plaintiff's of encour- at goal missal frustrate could ney fees at or cause sufficient show medi- to shall table to come parties aging hearing.... such case-never in this parties-as If the ate. expo- mediate, rules then of thе to violations to together
come In addition unequivocally has themselves, costs this Court and/or limited is sure equally Thus, applies 41 Rule minimal. Trial that stated attorney fees mediate, pursuant issued the court with orders orders comply incentive Moore, N.E.2d 622 v. procedures Benton proper rules. follow or denied; reh'g (Ind.Ct.App.1993), 1002, 1006 orders, negligi- becomes relief 587, Ind.App. 166 Campagna, Farinelli for resolv- emphasis strong Given ble. (1975). 299, 305 597, N.E.2d 838 not a mediation, is through issues may Farinelli, that once that a agree opined we we While In result. desired 41 "for Rule mediating Trial lawsuit process begin the dismiss order of an plaintiff controlling, we disobedience 2.10 is Rule Farinelli, proceedings.3 concerning in what 2.10 by Rule limited is a trial 302 at Ind.App. of its a violation impose can it sanctions fo- omitted). opining, In so (citation proceed a case order rules comply with otherwise plead or disobedience a defendant's remedy for 3. The by affidavit аppear made fact is is concerning proceedings an order otherwise, may defaulted. party 55(A): Indiana pursuant default judgment for against whom aWhen failed sought has relief affirmative cused on a trial court's pow- administrative N.E.2d at 884. weight any particular er to order dismissals because factor has in particular ever- "[the depends case on increasing reliance placed upon our court the facts of that Miller, case. Belсaster v. system to solve disputes ... brought [has] 785 N.E.2d 1167 (Ind.Ct.App.2003), juncture us to the judicious trans. denied. where exercise of the powers be essential Office Environments filed its com to preserve any semblance of effective op- plaint against Lake January 4, States on eration of litigative system." Id. at 2001. Because the complaint requested a noted, 301. however, We power "the trial, the trial court issued an control, administrative especially when August 2001, which directed exercised terms of dismissal or default complete mediation of sixty days action, should not lightly in- prior to trial. Office Environments did not dulged in." Id. at Thus, 303-04. we stat- seek relief from this order to mediate. ed that "it entirely proper for acting Although the selected began mediator cir court, court, and the reviewing to consider culating calendars in October media the entire record of facts and cireum- tion was not scheduled until April 16, stances surrounding the particular case 2002-due in part to Frazier not returning when judging whether an administrative the calendars in a timely manner. Once control sanction should be imposed or sus- the mediation scheduled, Frazier tained." Id. at Finally, 304. we noted asked that it be rescheduled because of an that "our review on appeal is limited to unspecified conflict. Thereafter, the medi ascertaining whether the course chosen ation was rescheduled May 8, constitutes a clear abuse of discretion." By agreement of parties, May Id. mediation was cancelled and rescheduled
To determine whether a trial court for 26, November 2002. 25, On November has abused its discretion by dismissing 2002, a Frazier called to cancel the media case under Trial Rule tion scheduled for the following day. The we generally factors, balance (1) several including: the mediation was eventually rescheduled for (2) length of delay; the the reason for the November mediator, 2003. The howev (8) delay; degree the personal responsi er, developed conflict, which in resulted bility on the part (4) plaintiff; the the the mediation being rescheduled for March degree to which plaintiff the will be In interim, the Frazier withdrew charged for the (5) acts of his attorney; as Office Environments' counsel due to the amount prejudice to the defendant non-payment issues, and Hansen entered (6) caused delay; the presence the or his aрpearance. The mediator then devel absence of a lengthy history of having oped another conflict and rescheduled the deliberately proceeded in a dilatory fash mediation April for 2004. Meanwhile, (7) ion; the existence and effectiveness of Hansen advised the mediator that he sanctions less drastic than dismissal which would not be responsible for any of the fulfill the purposes of the rules and the mediation costs or expenses аnd that his desire to (8) avoid court congestion; client would fully remain the responsible for desirability of deciding the case on the any charges. This prompted the mediator merits; (9) and to request a retainer of the extent to which the from $600 Office plaintiff has been stirred into action by a Environments, which it refused pay. threat of dismissal opposed as diligence Thereafter, the mediator cancelled the on the plaintiff's part. Co., Rueth Dev. 816 April 2004 mediation, and Lake States the pay refusal its due cancellation on based case the to dismiss filed retainer. participate failure Environments' Office trial by the directed as mediation the to devote in had Meanwhile, Lakes States pre scheduling and into energy and time court. dates- mediation the various paring had complaint Environments' Office Envi by Office cancelled was which one of three over docket court's the on been had day beforehаnd-and the ronments court dismissed trial when years over head for its over hanging claims first trial Additionally, the case. trial Although years. three over ordered sanction a lesser imposed first could it dismissed years one-half and two our under costs attorney fees such time, jury During case. appropriate rules,4 question we times. four continued was of Office light in remedy such ness in commene- delays all not While unable being history of Environments' are attrib- court-ordered costs. pаy fees unwilling to En- Environments, Office to Office utable to see case, prefer we with As cause did vironments however, merits; its on decided a case its times three least at rescheduled to determine suited better court is re- retainer requested refusal dismissal whether In the cancellation. final in sulted Further, agree appropriate. Envi- to Office solely attributable delays appropri- case is every dissent other given ronments, explanation no faсt, in our And ate for Further- conflict. awas there than pro- situations contemplate rules for the arranging delays more, several follow a mechanism vide attributable were dates various a trial from excused to be order Moreover, Environments. to Office Environments, to mediate. order that Office reveals record itself to avail nevertheless, refused Hancock, uncoopera- Robert principal, objection launching its channels proper it took fact that by the exemplified tive as a retainer. demand mediator's deposition seven months nearly ten neither Specifically, finally appeared [Hancock] "before notices sought relief documentation deposition *7 evidence present it did nor duces subpoena State's] in [Lake quested retainer. pay inability its regarding Further, p. 90. App. Appellant's teeum." responded Instead, Office attor- of Office one least denouncing by to dismiss be- representation withdrew neys it should argument utility mediation-an of refused cause years one-half two made Hence, not this is retainer. an additional ordered: initially when dili- of attorney's lack where situation if we something not In- [MJediation for dismissal. reason sole gence to be likely it would it ... went for at responsible here was deed, the client to at- refused hadn't We successful.... ultimate delays and some least prosecute diligently rules ply with with 41(E) cоurt vests Rule 4. Trial court terms upon such out- the action than other remedies to fashion discretion necessary to to be may withheld determines "Dismissal discretion in its right dismissal: prosecution." may diligent be made of dismissal assure reinstatement com- plaintiff condition subject to tend mediation. There If, some work. for example, the mediation "pro issues, financial which may need to be cess" does not begin until out, worked but we have not refused to mediator report tо a scheduled mediation attend. conference, no could ever recover its attorneys fees for a delay of mediation.1 See id. at 29-30. That result seems inconsistent with A.D.R. Based on the foregoing review of the 2.10, which explicitly permits sanc factors relevant to a Trial Rule dis- tions the form of attorneys fees "rele missal, we that the trial court vant to process." Under majori abused its discretion dismissing Office ty's interpretation, nothing that occurred Emvironments' сomplaint prejudice. with prior to the initial mediation conference Consequently, we affirm. would be covered under rules; the A.D.R. Affirmed. instead, the trial rules apply. One wonders, then, what is the reason for and SHARPNACK, J., concurs. value of separate A.D.R. rules? MAY, J., dissents separate with opinion. It is a well-established rule of statutory MAY, Judge, dissenting. construction that we assume legisla "the ture did not Because I enact disagree provision" useless the majority's such that "[where detеrminative statutory provisions conclusion process are in conflict, started, part had no not of a I must statute respect- should be fully rendered dissent. I meaningless believe but should be recon pro- ciled cess started the rest when the trial provided statute." In re notice on August 20, Guardianship Hickman, to all 805 N.E.2d they 816 (Ind.Ct.App.2004) were ordered (quoting to mediation. Robin son v. Wroblewski, Therefore, N.E.2d 474- sanctions could properly impose on 475 (Ind.1998)), Environ- trans. denied 822 ments were (Ind.2004). limited A.D.R. Rule 2.10 to Nor would I attribute our supreme mediation costs court an fees, and attorney intent to enact and the "use sanction less" rules dismissal when it complaint promulgated rules that available to are independent the trial court. of the trial rules.
My belief is supported by A.D.R. Rule 2.7, which is entitled "Mediation Proce Only the A.D.R. rules apply should 2.7(A) dure." Rule is entitled "Advise A.D.R. proceedings. AD.R. Rule 210 ment of Participants." As "advisement of makes that clear by limiting sanctions to participants" is, by the terms, rule's own assessment of mediation costs at- and/or the first step the "mediation procedure," torney fees. T.R. provides which this advisement must necessarily repre the sanction of dismissal, applies when *8 sent the initiation of the process. mediation there has been a failure to comply with Any other interpretation would frustrate "these rules." The term "these rules" in the Alternative Dispute Resolution frame T.R. undoubtedly refers to the trial 1. The majority nоtes Lake States "had to de- a lesser sanction attorney such as fees and vote time energy and into scheduling costs([.]" if, Id. But holds, as majority preparing" for mediation and "had these "process" started, mediation yet had not hanging claims over its head for over three trial court could not in fact imposed that years." .) (Op. at It goes then on to "lesser provided sanction" under the A.D.R. state "the trial court could have imposed first rules. into any inquiry without imposed is diation see And rules. A.D.R. rules, not dispute suits (Ind.Ct. process that whether 737, 739 State, v. Ford ordered often be will litigants, (here, provisions (specific App.1995) (and per- sides both provi when mediation general into rules) over prevail AD.R. well) process know the judge, rules) haps relation trial (here, the sions matter). situations, like the subject In some futile. the same will be financial alleges its us, party one I believe do Nor act or to an are attributable difficulties trial comply with failed has Forcing party. other by the omission its an extent to such mediation order mediation, into challenged party financially prejudice. dismissed should claim mediation party forcing notes, "order" majority theAs counter-productive. costs, often will mediation complete quired date. trial set to the days prior sixty least Dis- Motion filed its Lake States
When Without set. had been
miss, trial date no date, Office a set of violation not
could mediate. delays were there question no
There attributable were case, not all but in this WATSON, Appеllant- Brandon on example; For Environments. Defendant, EKin- and Office 2003, Lake States June continu- joint filed vironments setting. Indiana, Appellee-Plaintiff. choice ninth their ance STATE represented States Lake Counsel No. 02A03-0412-CR-574. "complex involved case 71.) medi- (App. at damages issues." Indiana. Appeals Court scheduled cancelled twice ator Aug.29,2005. at least On conflicts. due conferences sides- attorneys for both occasion one counsel- Environment's just Office
not request mediator's respond
failed May 2002 calendars, and the nei- because rescheduled
conference ready.
ther appropri- is more dispute
This mediation by application resolved
ately erred I believe
Rules.
dismissing reverse accordingly I proceedings. further
remand counties Many comment. a final
I offer I cases, and civil in all
require practice. good believe
do *9 productively simply cases
Some me- When through
dealt