On March 31, 2011, the Indiana Court of Appeals provided a lesson in how to ensure that a
, ___ N.E.2d ___ (Ind. Ct. App. 2011), Case No. 24A01-1009-PL-442. The Ritzes may not have succeeded on appeal, even if they had the benefit of the Court's opinion ahead of time, but we can learn from the Court's discussion of the issues.
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This case involves a property dispute between the DNR and the Ritzes. Each claimed possession of a deed conveying ownership of a tract of real estate along the former Whitewater Canal in Franklin County. In 1991, DNR sought to develop a hiking and biking trail that would include the disputed real estate and placed boundary markers on the property to survey it. The Ritzes operated a canoe business on property adjacent to the disputed real estate. The Ritzes' employees removed the markers and denied DNR employees access to the property.
In September 1991, DNR filed a complaint against the Ritzes for ejectment, trespass, preliminary and permanent injunctions, and damages. In April 1992, the trial court
sua sponte issued an order to show cause why the case should not be dismissed pursuant to Rule 41(E) for failure to prosecute, but the case was not dismissed. Three years later, the trial court dismissed the case for failure to prosecute pursuant to Rule 41(E), but (a couple of months later) ordered that the case remain active and not be dismissed. Finally, in December 1998, the trial court again issued an order to show cause why the case should not be dismissed pursuant to Rule 41(E) for failure to prosecute and the case was dismissed in April 1999.
Over ten years later, in October 2009, DNR filed a complaint against the Ritzes for trespass, injunction, damages, and to quiet title pertaining to essentially the same real estate that was the subject of earlier case. The Ritzes filed a motion to dismiss, asserting (1) that the case was originally filed in 1991 and was dismissed with prejudice and (2) that the statute of limitations for quiet title actions had run. DNR then moved to reinstate the original action, contending that Trial Rule 41(E) required a hearing prior to dismissal, such a hearing was not held, and therefore the 1999 dismissal had been improper.
The parties then engaged in motion practice that resulted in the dismissal of the 2009 action and a hearing on the 1998 show cause order in the original action. The trial court dismissed that original action because DNR had failed to take any action for almost eleven years and could not offer a good excuse for the delay.
On appeal, the Court held that the trial court abused its discretion when it dismissed the original case in 2010. It held that this claim, a dispute over whether the land was public land, was particularly desirable to resolve on the merits because public land cannot be alienated and the right of the public to use public lands is not barred by the statute of limitations. Thus, "DNR's prior recorded deed ... will cast a perpetual shadow over the Ritzes' ownership rights." Moreover, while the length of the delay was "substantial," "the desirability of deciding this case on the merits is exceptionally important because of the alleged public interest in the disputed land."
Most cases will not have an "exceptionally important" need to be decided on the merits, so that portion of the Court's decision will not be particularly enlightening for most litigators. However, the court's discussion of other factors, particularly the prejudice to the Ritzes, is instructive.
The Ritzes argued that they would be prejudiced if the case were dismissed. The Court stated that the Ritzes did not introduce sufficient evidence of prejudice.
The Ritzes have not asserted prejudice from having built on, developed, or improved the property in the belief that it belonged to them. The record before us does not reveal how or if the Ritzes were actually using the property. ... The Ritzes do not assert that they have paid taxes on the property or that the loss of the disputed property would materially affect their canoe business.
Thus, if you are in the position of advocating in favor of a dismissal under Rule 41(E), you should take the time to gather and introduce evidence demonstrating why dismissal is appropriate in your case. Facts help - don't simply rely on the strength of your arguments.
