Despite an almost two-year span with no action on a car-crash complaint, the Indiana Court of Appeals has ruled the plaintiff may move forward with the suit because the unique facts of the case do not warrant dismissal for failure to prosecute.
After Tony Petrovski and Robert Neiswinger were involved in a car collision in April 2013, Petrovski hired northern Indiana attorney Samuel Vazanellis to represent him in a complaint against Neiswinger. Two years later, just two days before the statute of limitations expired, Vazanellis filed a complaint against Neiswinger on Petrovski’s behalf and attempted to serve Neiswinger via certified mail. However, the service was returned as unsuccessful, and Vazanellis did not make a second attempt to serve Neiswinger.
Petrovski then entered a period of being unable to reach Vazanellis, who refused to return his calls throughout most of 2016. The Indiana Supreme Court suspended Vazanellis for noncooperation with an investigation against him in August 2016, then converted that suspension into an indefinite suspension in February. According to the Indiana Roll of Attorneys, Vazanellis is still suspended.
When Petrovski learned of his counsel’s suspension in December 2016, he retained new counsel, who served Neiswinger with Petrovski’s complaint against him. Neiswinger moved to dismiss the complaint pursuant to Indiana Trial Rule 41(E) for failure to prosecute, and the Lake Circuit Court agreed to do so without prejudice.
On appeal in Tony Petrovski v. Robert Neiswinger, 45A03-1706-CT-1412, Petrovski argued the trial court abused its discretion in granting Neiswinger’s motion to dismiss. The Indiana Court of Appeals agreed, with Chief Judge Nancy Vaidik writing Friday that there are nine factors a court must balance when determining whether to dismiss a case for failure to prosecute, and the weight of each of those factors depends upon the facts of the case.
Here, Vaidik wrote five of the factors weigh in favor of allowing Petrovski to prosecute his complaint after a nearly two-year delay, as Neiswinger cites no evidence that he was prejudiced by the delay. Further, Petrovski acted to retain new counsel and move the case forward before Neiswinger moved to dismiss, Vaidik wrote, and “there is a clear preference for deciding cases on the merits.”
Thus, when considering Vazanellis’ “complete abdication of his duties,” the appellate court found dismissal of Petrovski’s complaint was an abuse of discretion.
A similar case involving Vazanellis will go before the Indiana Supreme Court next month. In Elizabeth Roumbos v. Samuel G. Vazanellis, et al., 45S03-1710-CT-00635, Elizabeth Roumbos sued Vazanellis and Thiros & Stracci law firm for malpractice after he failed to file a negligence complaint on her behalf within the applicable statute of limitations. The Lake Superior Court found in favor of the firm, but the Court of Appeals reversed in February.
The high court will hear oral arguments in that case on Nov. 9.