Altice, C.J.
Case Summary
NIBCO, Inc.’s declaratory judgment action was dismissed for failure to prosecute. Two years later, the trial court, despite rejecting NIBCO’s claim that it was entitled to reinstatement under Ind. Trial Rule 60(B), reinstated the action. The trial court reasoned that it was required to reinstate the action because it failed to hold an Ind. Trial Rule 41(E) hearing before the dismissal. As the only vehicle for reinstatement in this case was T.R. 60(B), we conclude that the trial court erred by reinstating the action.
We reverse.
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As the trial court observed in this case, a court is required to hold a hearing prior to dismissing a case for failure to prosecute…..
In this appeal, the parties spill much ink debating whether a hearing was in fact held – though they agree that none of the parties attended – and if a hearing was not held, whether the circumstances of this case would warrant reversal of the judgment of dismissal. On the latter point, Insurers contend that a hearing was scheduled, and NIBCO was duly served with notice of the hearing but did not attempt to attend or reschedule the hearing or otherwise respond to the hearing notice. Insurers argue that under these circumstances a trial court should not have to commence a hearing simply to go on the record to note the plaintiff’s non-attendance.
These disputes are beside the point, however, because, unlike the cases cited above and relied upon by the trial court, this case does not involve an appeal from the judgment of dismissal. NIBCO missed that opportunity. Thus, pursuant to T.R. 41(F), its only recourse was to seek reinstatement of the declaratory judgment action via T.R. 60(B). See T.R. 41(F) (providing for reinstatement following a dismissal with prejudice “for the grounds and in accordance with the provisions of Rule 60(B)”); see also Baker & Daniels, LLP v. Coachmen Indus., Inc., 924 N.E.2d 130, 137 n.6 (Ind. Ct. App. 2010) (“Rule 41(F) plainly states that reinstatement of claims dismissed with prejudice must be in accordance with Rule 60(B).”), trans. denied. [Footnote omitted.]
Due to the belated filing of its T.R. 60(B) motion twenty months after the dismissal, NIBCO’s options were even more limited, which is reflected by the fact that NIBCO sought reinstatement only pursuant to T.R. 60(B)(8)…
Here, the trial court expressly determined that NIBCO was not entitled to relief under T.R. 60(B)(8) because (1) NIBCO did not seek relief within a reasonable time and (2) NIBCO had not shown exceptional circumstances justifying relief…
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Despite clearly and definitively rejecting reinstatement on T.R. 60(B) grounds, the trial court reinstated the action only because it had not held a T.R. 41(E) hearing. In essence, the trial court applied a per se rule of reinstatement making dismissals subject to reinstatement indefinitely – that is, beyond a reasonable time – in any case where the trial court failed to hold a T.R. 41(E) hearing. This was clearly erroneous. Relief from the judgment of dismissal was available to NIBCO only under T.R. 60(B). [Footnote omitted.] Because it failed to act within the time permitted by the rule, NIBCO was not entitled to reinstatement.
Judgment reversed.
Weissmann, J. and Kenworthy, J., concur.