Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           FILED
establishing the defense of res judicata,                   Aug 29 2012, 9:35 am
collateral estoppel, or the law of the
case.                                                              CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




APPELLANT PRO SE:                                ATTORNEY FOR APPELLEE:

JEAN D. SCHOKNECHT                               DAVID M. SEITER
Indianapolis, Indiana                            Garrison Law Firm, LLC
                                                 Indianapolis, Indian a




                              IN THE
                    COURT OF APPEALS OF INDIANA

JEAN D. SCHOKNECHT,                              )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )      No. 49A02-1201-CP-37
                                                 )
SUSAN E. DUNLAP f/k/a HASEMEIER and              )
f/k/a SCRIBNER,                                  )
                                                 )
       Appellee.                                 )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Thomas J.Carroll, Judge
                           Cause No. 49D06-9812-CP-4072


                                      August 29, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
                               STATEMENT OF THE CASE

       Jean D. Schoknecht (“Landlord”), pro se, appeals the dismissal of her complaint

against Susan E. Dunlap (“Tenant”) pursuant to Indiana Trial Rule 41(E).

       We affirm.

                                         ISSUES

              1.      Whether the trial court judge erred by failing to recuse
                      himself.

              2.      Whether the trial court abused its discretion in dismissing
                      Landlord’s complaint.

                                         FACTS

       We adopt the statement of facts set forth in this court’s decision in Schoknecht v.

Dunlap, No. 49A04–0912–CV–745, slip op. at 1-2 (Ind. Ct. App. Nov. 10, 2010), which

reads, in pertinent part, as follows:

       This case arises from a residential lease which was entered into over fifteen
       years ago. In August 1995, Landlord entered into a lease agreement with
       Tenant for residential property located in Indianapolis for a lease term of
       one year, and Tenant paid Landlord a security deposit in the amount of
       $750. Following the expiration of the initial one-year lease term, Tenant
       continued to lease the property from Landlord on a month-to-month basis.

              In April 1997, Landlord filed suit against Tenant in the Marion
       County Small Claims Court alleging waste and failing to make lease
       payments when due, and Landlord obtained a judgment against Tenant
       which entitled Landlord to possession of the property. The court set the
       matter for hearing on damages. After Tenant requested the return of her
       security deposit and Landlord sent a letter to Tenant itemizing damages and
       an estimated cost of repair, Landlord dismissed her claim against Tenant
       without prejudice in November 1997.



                                            2
        On May 8, 1998, Tenant filed suit against Landlord for her security
deposit in the Wayne Township Division of the Marion County Small
Claims Court. On July 27, 1998, Landlord filed a counterclaim. On
August 4, 1998, on the date the small claims court had set the matter for
hearing, Landlord instituted a separate action against Tenant by filing a
Complaint for Damages and Demand for Jury Trial in the Marion County
Superior Court alleging breach of the lease agreement and damages to the
property. The proceedings in the Wayne Township Division were
transferred to the Marion Superior Court No. 10 and the two actions were
consolidated. On October 13, 1998, Tenant filed an Answer and
Counterclaim in the Superior Court. In February 2000, the court granted
summary judgment in favor of Tenant and against Landlord on the grounds
that Landlord failed to comply with notice requirements related to security
deposits as set forth by Indiana statutes. Landlord appealed, and on
September 20, 2000, a panel of this court held that Landlord had complied
with the statutory notice requirement and reversed and “remand[ed] to the
trial court to determine the amount of damages Landlord is entitled to, if
any, and whether Tenant is entitled to reimbursement of any portion of her
security deposit.”

        On remand, the parties continued to litigate the case for almost nine
years, which included numerous continuance motions, at least two motions
to dismiss under Trial Rule 41(E), unsuccessful mediation, numerous pre-
trial conferences, change of counsel several times by both parties, a motion
for order to appear filed by Tenant, a motion to remove Tenant’s counsel
filed by Landlord, a court order for Landlord to personally appear for her
deposition, several motions for change of judge by Landlord, and various
other filings with Marion Superior Court No. 10.

       On June 19, 2009, Tenant filed a Jury Waiver with the court in
which Tenant waived trial by jury and requested the court to set the matter
for a bench trial. An entry in the CCS dated June 26, 2009, states:
“[Tenant’s] motion to waive jury trial is set for hearing on July 21, 2009.”
Landlord filed a response to Tenant’s jury waiver, which was file-stamped
on July 5, 2009, and alleged in part: “[Tenant’s] waiver of jury trial . . . is
meaningless as I do not waive my right to the jury trial that I have
demanded and to which I have an absolute constitutional right.” Landlord’s
response also objected to a hearing on waiver “as being a complete waste of
time as [Landlord has] not and will not ever waive [her] right to have a jury
decide this case.” An entry in the CCS dated July 14, 2009, indicates that
the court denied Landlord’s request to vacate the hearing set on jury waiver.

                                      3
         The court held a hearing on July 21, 2009, at which the court stated that
         “once you try something in small claims court, my position is that’s it
         you’ve waived your right to trial by jury,” and gave the parties additional
         time to submit additional arguments prior to a ruling.

                 On August 10, 2009, Tenant filed a Brief in which she argued that
         Landlord waived her right to a jury trial and that Landlord’s complaint
         should be dismissed with prejudice. On August 24, 2009, Landlord filed a
         Plaintiff’s Brief in Support of Her Objection To Defendant’s Motion For
         Bench Trial and Response To Defendant’s Undenominated and Untimely
         Motion to Dismiss Under Trial Rule 12(B)(6). On September 28, 2009,
         Landlord filed a notice to the Clerk that Judge Caroll [sic] has failed to
         either rule on a motion, set it for hearing, or obtain an extension to rule; or
         has delayed in ruling on a motion; and request that this case be transferred
         to the Supreme Court. On October 30, 2009, the court issued a written
         order in which it dismissed this case in its entirety, including the complaint
         and counterclaim, with prejudice and determined that Landlord was not
         entitled to a jury trial.

(Internal citations, citations to the record and footnote omitted).

         Landlord appealed, asserting that the trial court abused its discretion in dismissing

her claim and also improperly denied her request for a jury trial. Finding that the record

did not show that the requirements for dismissal pursuant to Trial Rule 41(E) had been

met, this court held that the trial court abused its discretion in dismissing Landlord’s

claim.    Id. at 3.   This court also found that the trial court had improperly denied

Landlord’s request for a jury trial.      Id. at 6.   Accordingly, this court reversed and

remanded for further proceedings.        The clerk of this court certified the opinion on

December 22, 2010.

         On August 24, 2011, Tenant again filed a motion to dismiss pursuant to Trial Rule

41(E). The trial court set the matter for a hearing on October 11, 2011. Subsequently, on


                                               4
September 6, 2011, Landlord filed a praecipe for jury trial. On October 11, 2011,

Landlord filed a motion to withdraw the cause from the trial judge pursuant to Trial Rule

53.1 and a motion for recusal of the trial judge.

       The trial court rescheduled the hearing on Tenant’s motion to dismiss, and on

November 16, 2011, the court clerk denied Landlord’s motion to withdraw the cause

from the trial judge pursuant to Trial Rule 53.1.

       The trial court held a hearing on Tenant’s motion to dismiss on December 16,

2011, and took the matter under advisement. On December 20, 2011, the trial court

granted Tenant’s motion to dismiss.

                                        DECISION

1. Recusal

       Landlord asserts the trial court abused his discretion in denying her motion to

recuse after this court handed down its opinion in Schoknecht v. Dunlap. Landlord

argues that the trial judge cannot be impartial given the two prior appellate court

decisions in this matter.

       First, we note that, pursuant to Indiana Trial Rule 76(C)(3), where a court on

appeal remands a case, the parties “shall have ten [10] days from . . . the order of the

court on appeal is certified” to seek an automatic change of judge. Here, the clerk of this

court certified the Schoknecht v. Dunlap opinion on December 22, 2010. Thus, Landlord

did not meet the criteria set forth for an automatic change of judge. We therefore look to



                                              5
whether the trial court abused its discretion in failing to recuse himself pursuant to Trial

Rule 79.

        Indiana Trial Rule 79(C)(4) provides that a “judge shall disqualify and recuse

whenever the judge . . . is associated with the pending litigation in such fashion as to

require disqualification under the Code of Judicial Conduct or otherwise.” Essentially,

Landlord contends that the trial judge violated Rules 1.2, 2.2, 2.5, and 2.111 of the Code

of Judicial Conduct by not recusing himself after this court’s decision in Schoknecht v.

Dunlap.

                A ruling upon a motion to recuse rests within the sound discretion of
        the trial judge and will be reversed only upon a showing of abuse of that
        discretion. An abuse of discretion occurs when the trial court’s decision is
        against the logic and effect of the facts and circumstances before it. When
        reviewing a trial judge’s decision not to disqualify h[im]self, we presume
        that the trial judge is unbiased. “In order to overcome that presumption, the
        appellant must demonstrate actual personal bias.” In addition, the mere
        appearance of bias and partiality may require recusal if an objective person,
        knowledgeable of all the circumstances, would have a rational basis for
        doubting the judge’s impartiality. Upon review of a judge’s failure to
        recuse, we will assume that a judge would have complied with the
        obligation to recuse had there been any reasonable question concerning
        impartiality, unless we discern circumstances which support a contrary
        conclusion.




1
  Rule 1.2 provides, in relevant part, that a “judge shall act at all times in a manner that promotes public
confidence in the . . . impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” Rule 2.2 provides that a “judge shall uphold and apply the law, and shall perform all duties
of judicial office fairly and impartially.” Rule 2.5(A) provides that a “judge shall perform judicial and
administrative duties competently, diligently, and promptly.” Finally, Rule 2.11 provides that a “judge
shall disqualify himself . . . in any proceeding in which the judge’s impartiality might reasonably be
questioned, including” where “[t]he judge has a personal bias or prejudice concerning a party . . . .”


                                                     6
Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 63-64 (Ind. Ct. App. 2012)

(internal citations omitted). Adverse rulings are insufficient to show prejudice or bias.

Dan Cristiani Excavating Co., Inc. v. Money, 941 N.E.2d 1072, 1082 (Ind. Ct. App.

2011); see also Everling v. State, 929 N.E.2d 1281, 1288 (Ind. 2010) (“Adverse rulings

and findings by a trial judge from past proceedings with respect to a particular party are

generally not sufficient reasons to believe the judge has a personal bias or prejudice.”).

       Although Landlord cites to a history of adverse rulings, including rulings reversed

by this court, she fails to demonstrate any actual personal bias or prejudice of the trial

judge. Given the history of this case, Landlord argues that “a hypothetical reasonable

person would have created a question in his or her mind whether Judge Carroll had kept

or could keep an open mind, or whether Judge Carroll’s impartiality . . . might reasonably

be questioned.” Landlord’s Br. at 6. The issue, however, is not whether a reasonable

person creates a question of impartiality in his or her mind; rather, the issue is whether

the trial judge’s “conduct would create in reasonable minds a perception” of bias or

impartiality. Ind. Judicial Conduct Rule 1.2 cmt. Given that Landlord has failed to show

anything but good-faith errors, we cannot say that the trial judge’s conduct has created a

perception of bias, impartiality or unfairness. See Jud.Cond. R. 2.2 cmt. (stating that

good-faith errors of fact or law when applying and interpreting the law do not violate the

Code of Judicial Conduct).




                                             7
2. Dismissal

       Landlord asserts that the trial court improperly dismissed her action for failure to

prosecute pursuant to Trial Rule 41(E), where “all that was left for [Landlord] to do on

her Complaint, and [Tenant] to do on her Counterclaim, was get the matter tried.”

Landlord’s Br. at 12.

              We review dismissal of a cause of action under T.R. 41(E) for an
       abuse of discretion. In so doing, we consider whether the trial court’s
       decision was against the logic and effect of the facts and circumstances;
       “‘we will affirm the trial court if any evidence supports the trial court’s
       decision.’”

Baker Machinery, Inc. v. Superior Canopy Corp., 883 N.E.2d 818, 821 (Ind. Ct. App.

2008) (internal citations omitted), trans. denied.

       Trial Rule 41(E) provides, in relevant part, that “when no action has been taken in

a civil case for a period of sixty [60] days, the court . . . on its own motion shall order a

hearing for the purpose of dismissing such case.” Furthermore, “[t]he court shall enter an

order of dismissal . . . if the plaintiff shall not show sufficient cause at or before such

hearing.”

       In determining whether a trial court abused its discretion in dismissing an action

for failure to prosecute, we consider several factors.

       These factors include: (1) the length of the delay; (2) the reason for the
       delay; (3) the degree of personal responsibility on the part of the plaintiff;
       (4) the degree to which the plaintiff will be charged for the acts of his
       attorney; (5) the amount of prejudice to the defendant caused by the delay;
       (6) the presence or absence of a lengthy history of having deliberately
       proceeded in a dilatory fashion; (7) the existence and effectiveness of
       sanctions less drastic than dismissal which fulfill the purposes of the rules

                                              8
       and the desire to avoid court congestion; (8) the desirability of deciding the
       case on the merits; and (9) the extent to which the plaintiff has been stirred
       into action by a threat of dismissal as opposed to diligence on the plaintiff’s
       part. The weight any particular factor has in a particular case depends on
       the facts of that case.

Olson v. Alick’s Drugs, Inc., 863 N.E.2d 314, 319-20 (Ind. Ct. App. 2007), trans. denied.

“‘[A] lengthy period of inactivity may be enough to justify dismissal under the

circumstances of a particular case, especially if the plaintiff has no excuse for the delay.’”

Baker, 883 N.E.2d at 823 (quoting Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct. App.

2004)).

       A trial court’s authority to dismiss a case pursuant to Trial Rule 41(E) “stems not

only from considerations of fairness for defendants, but is also rooted in the

administrative discretion necessary for a trial court to effectively conduct its business.”

Baker, 883 N.E.2d at 823. “The plaintiff bears the burden of moving the litigation and

the trial court has no duty to urge or require counsel to go to trial, even where it would be

within the court’s power to do so.” Lee, 811 N.E.2d at 885.      In order to avoid dismissal

under Trial Rule 41(E), “‘a plaintiff must resume prosecution before the filing of the T.R.

41(E) motion.’”     Belcaster v. Miller, 785 N.E.2d 1164, 1168 (Ind. Ct. App. 2003)

(quoting Benton v. Moore, 622 N.E.2d 1002, 1005 (Ind. Ct. App. 1993)), trans. denied.

       In this case, the Clerk of this Court certified the second appeal in this matter on

December 22, 2010. No action took place for the next eight months. On August 24,

2011, Tenant filed her motion to dismiss pursuant to Trial Rule 41(E). Subsequently, on

September 6, 2011, Landlord filed her motion to set trial. Thus, Tenant filed her motion

                                              9
to dismiss after more than sixty days of inactivity and before Landlord resumed

prosecution of the matter, thereby satisfying the procedural requirements under Trial Rule

41(E). Nonetheless, we still must look to additional factors in determining whether the

trial court abused its discretion in granting Tenant’s motion to dismiss.

        As the length of delay, eight months certainly is not an especially egregious

amount of time. This court, however, has upheld dismissals for shorter delays. See Lee,

811 N.E.2d at 886 (finding no abuse of discretion in dismissing a complaint after a three-

month delay in prosecution). Furthermore, a review of the chronological case summary

reveals that Landlord has delayed much of this action and has only been “stirred into

action” by the threat of dismissal.2 Olson, 863 N.E.2d at 320. Accordingly, we cannot

say that the trial court abused its discretion in dismissing Landlord’s complaint.

        Affirmed.

ROBB, C. J. and BAILEY, J., concur.




2
  For example, on December 11, 2000, the clerk of this court certified the first appellate opinion handed
down in this matter. There, this court reversed and remanded for further proceedings. No action,
however, took place until April 17, 2003, when the trial court set the matter for “call of the docket” on
April 25, 2003, and sent notice thereof to the parties. (App. 7). Following the call of the docket, the trial
court sua sponte dismissed the matter on April 30, 2003, spurring Landlord to file a motion to set aside
the dismissal, reinstate the case, and set the matter for trial.
                                                    10
