Najam, S.J.
Statement of the Case
Mary Kay Anderson, James Kevin Miller, and Chris K. Miller (collectively, “the Landowners”) filed a complaint seeking declaratory and injunctive relief and a motion for temporary restraining order (“TRO”) against the City of Boonville (“Boonville”). The Landowners alleged that Boonville planned to commit a trespass by causing water from a privately owned detention basin to be discharged directly and unlawfully on to one or both of their properties. Boonville intended to, and eventually did, redirect water from an adjoining subdivision detention basin, ultimately depositing the water into a private ditch (“the Anderson-Miller private ditch”) on the Landowners’ properties.
The Landowners obtained a TRO against Boonville, which was later dissolved. Much later, the trial court dismissed the Landowners’ complaint under Trial Rule 12(B)(6). The Landowners then exercised their right under Trial Rule 12(B) and Trial Rule 15(A) and filed an Amended Complaint against Boonville. Meanwhile, Boonville filed a motion for an award of attorney’s fees, costs, and damages (“the Fee Motion”). Boonville alleged that the orders dissolving the TRO and dismissing the Landowners’ complaint “confirmed” that Boonville had been wrongfully restrained and, therefore, that Boonville was entitled to recover damages pursuant to Indiana Trial Rule 65(C). See Appellant’s Br. p. 19.
The Millers, under Trial Rule 41(A)(1)(a), and then Anderson, under Trial Rule 41(A)(2), voluntarily dismissed their Amended Complaint. The trial court allowed the dismissals of the Amended Complaint without prejudice and without conditions. The court also denied Boonville’s Fee Motion. Boonville contends that the Landowners should not have been allowed to voluntarily dismiss their Amended Complaint without also satisfying Boonville’s Fee Motion for having been wrongfully restrained.
The parties dispute the significance, operation, and effect of orders entered on November 16, 2023 and March 15, 2024 as well as the correctness of the final order entered on July 15, 2024. In the first order the court dissolved the TRO. In the second order the court granted Boonville’s Trial Rule 12(B)(6) motion to dismiss the original complaint. In the third and final order the court granted Anderson’s motion for voluntary dismissal, without prejudice, and denied Boonville’s Fee Motion.
Neither the dismissal of the TRO nor the Trial Rule 12(B)(6) dismissal of the original complaint finally and ultimately determined that the TRO was wrongfully issued. But Boonville requested and was denied a hearing on its Fee Motion to prove that it was wrongfully restrained and entitled to an award of damages, fees, and costs. Thus, we hold that the trial court did not abuse its discretion when it granted Anderson’s motion for involuntary dismissal without prejudice but that it erred when it denied Boonville’s Fee Motion against the Landowners without a hearing. Consequently, we affirm in part, reverse in part, and remand with instructions.
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We next consider Boonville’s argument that the Landowners “have effectively circumvented [Trial Rule 12(B)(6)] by filing their [Amended Complaint] and then quickly voluntarily dismissing it ‘without prejudice’ before responding to the second motion to dismiss, so they can attempt to file the same complaint another day.” Appellant’s Br. p. 24. Boonville also claims, “The trial court, in this instance, should have given Anderson a choice to either have Boonville’s attorney’s fees and costs paid for by [the Landowners], or have her Amended Complaint dismissed with prejudice, as was done in Highland Realty.” Reply Br. p. 17.
In support of its argument Boonville relies on our Supreme Court’s decision in Highland Realty, Inc. v. Indianapolis Airport Authority, 563 N.E.2d 1271 (Ind. 1990). In Highland Realty, our Supreme Court found “[r]equiring the plaintiff to reimburse the defendant for attorney’s fees before voluntary dismissal in a case like this one, where litigation has been long and costly, is simply a means of protecting the defendant from the consequences of the plaintiff’s choice to run up the legal services bill, then walk away and wait for a better day to refile its suit.” 563 N.E.2d at 1273. Thus, the court concluded that “a trial court may properly condition plaintiff’s voluntary dismissal without prejudice on the payment of a defendant’s attorney’s fees under T.R. 41(A)(2).” Id. (emphasis added). Here, Boonville contends that the trial court’s failure to give Anderson a choice either to pay Boonville’s damages or to have her Amended Complaint dismissed with prejudice, as was done in Highland Realty, “left the phrase ‘terms and conditions’ [in Trial Rule 41(A)(2)] without any meaning.” Reply Brief p. 17.
Boonville contends that the trial court should have conditioned the dismissal of the parties on payment of Boonville’s attorney’s fees for the Landowners’ purportedly “unfounded lawsuit[,]” “improper TRO[,]” and “legally deficient claims,” Appellant’s App. Vol. III, pp. 59, 63 (Boonville’s Response to Motion for Voluntary Dismissal), and to hold them “accountable for their litigation strategy.” Reply Br. p. 20. Boonville accuses the Landowners of having “unilaterally obtained a TRO against [it] on a claim that was factually unsupported and legally ungrounded.” Appellant’s Br. p. 22.
The Landowners counter that Boonville has “attempted to bully the Plaintiffs into abandoning their claims by, among other things, threatening them with liability for exorbitant and inflated attorney fees” and has waged a “war of financial attrition.” Appellant’s App. Vol. III, pp. 51, 56. (Plaintiffs’ Motion for Voluntary Dismissal). The Landowners contend that Boonville’s request for an award of damages “may be calculated to discourage Landowners and other citizens from challenging Boonville’s decisions by sending a message of the risk and expenses involved.” Appellees’ Br. p. 24. And they describe the City’s attitude as, “We’re dumping [water from the retention basin] in your private ditch whether you like it or not.” Tr. Vol. p. 27.
These allegations reflect the frustration of the parties with each other. This case has been vigorously contested on both sides but for only eleven months, from August 28, 2023 to July 15, 2024, including two months of administrative delays not chargeable to the Landowners. There was a twenty-two-day interruption needed to locate a special judge who would assume jurisdiction after Boonville’s Trial Rule 76(B) motion and another forty-day delay before a hearing on the TRO after a special judge had been selected, a hearing which was scheduled “by agreement.” In contrast, in Highland Realty the lawsuit was pending for over five years. 563 N.E.2d at 1273.
We cannot say the Landowners have engaged in a frivolous or vexatious litigation strategy and have merely run up Boonville’s legal bill and then walked away to file suit again later. To the contrary, Anderson stated in her motion that she “wishe[d] to voluntarily dismiss the claims and put an end to this litigation not because her claims lack merit—far from it—but because she cannot continue to fund this lawsuit.” Appellant’s App. Vol. III, p. 51. Anderson, her husband, Wayne, and the Millers had obtained a final judgment including a permanent injunction after a trial against the Builder in Autofish, the precursor to this case. When Anderson filed her Trial Rule 41(A)(2) motion, the trial court had already dismissed the Millers. Anderson’s husband had died, she was left standing alone, and she gave up. These circumstances do not indicate that she engaged in “procedural maneuvering” as Boonville contends. Reply Br. p. 11. Boonville has been uniformly dismissive of the Landowners’ complaint but, we note, has not claimed that the Landowners were engaged in a frivolous, unreasonable, or groundless action. See Ind. Code § 34-52-1-1 (General recovery rule) (1998). We are not persuaded by Boonville’s argument, in effect, that the Landowners have misused the rules of trial procedure. We decline to second guess the trial court on this point.
The authority to condition a plaintiff’s voluntary dismissal “upon such terms and conditions as the court deems proper[,]” T.R. 41(A)(2), includes the authority not to impose any terms and conditions upon the dismissal. A dismissal without prejudice is the default rule under Trial Rule 41(A)(2). (“Unless otherwise specified in the order, a dismissal under this subsection is without prejudice.”). As we said in Tompa v. Tompa, 867 N.E.2d 158, 166 (Ind. Ct. App. 2007), “there is no abuse of discretion for the trial court not to do that which it is not required to do.”
We decline to interpret Highland Realty as a command to treat the word “may” in that opinion as if it were “shall.” Here, the trial court was well within its discretion not to impose terms and conditions upon Anderson’s motion for voluntary dismissal of the Amended Complaint. The holding in Highland Realty recognizes a trial court’s discretion and does not limit the exercise of that discretion. Highland Realty did not curtail a trial court’s discretion under the “terms and conditions” clause in Trial Rule 41(A)(2), and the facts do not require a different outcome in this case.
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Thus, we affirm in part, reverse in part, and remand with instructions that the trial court conduct an evidentiary hearing on whether Boonville is entitled to an award of Trial Rule 65(C) damages and, if so, in what amount.
Affirmed in part, reversed in part, and remanded with instructions.
Bradford, J., and Foley, J., concur.