                                                                         Sep 11 2015, 8:53 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Michael J. Andreoli                                       Robert Clutter
      Zionsville, Indiana                                       Sergey Grechukhin
                                                                Kirtley, Taylor, Sims, Chadd & Minnette,
                                                                P.C.
                                                                Lebanon, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert Blackford,                                         September 11, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                06A01-1410-MI-437
              v.                                                Appeal from the Boone Superior
                                                                Court

      Boone County Area Plan                                    Lower Court Cause No.
                                                                06D02-1405-MI-43
      Commission and Boone County
      Drainage Board,                                           The Honorable Rebecca McClure,
                                                                Judge
      Appellees-Plaintiffs.




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant-Defendant, Robert Blackford (“Blackford”), who is a former

      prosecutor and represented himself pro se, appeals the trial court’s denial of his

      oral request for a continuance made on the day of trial. The trial court denied


      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015               Page 1 of 26
      Blackford’s request, held the bench trial, and entered judgment in favor of

      Appellees-Plaintiffs, Boone County Area Plan Commission (“the Plan

      Commission”) and Boone County Drainage Board (“the Drainage Board”)

      (collectively, “Boone County”). Blackford argues that the trial court abused its

      discretion by denying his continuance request. Given Blackford’s failure to

      show good cause or prejudice, we conclude that the trial court did not abuse its

      discretion.


[2]   We affirm.


                                                       Issue
              Whether the trial court abused its discretion by denying
              Blackford’s oral request for a continuance made on the day of trial.

                                                       Facts
[3]   On May 1, 2014, the Plan Commission filed a complaint against Blackford and

      his estranged wife, Susan Blackford (“Susan”).1 In its complaint, the Plan

      Commission alleged, in part, that:

              4. Defendants are the owners of real estate located in Boone
              County, County Parcel Number 008-00210-01 and an address of
              3401 East 750 South (est.), Boone County, Indiana (“the
              Property”). The Property is located within Boone County but
              outside an incorporated town or city.




      1
       Susan was named as a defendant below, but she neither responded to the complaint nor appeared at trial.
      The trial court entered default judgment against her. Because Susan was a party below, she is a nominal
      party in this appeal. See Ind. Appellate Rule 17(A). For simplicity, when referring to the claims alleged
      against Blackford and Susan, we will refer to them collectively as “Blackford” or “Defendants.”

      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015                    Page 2 of 26
        5. The unincorporated areas of Boone County are governed by
        and subject to the Zoning Ordinance of Boone County (“the
        Zoning Ordinance”) . . . .
        6. The Property is designated as General Agricultural (“AG”), as
        that term is defined in the Zoning Ordinance.
        7. The Zoning Ordinance provides that “Open Material Storage”
        is permitted only on real estate with a zoning designation[] of I-2
        (General Industry), or by Special Exception on real estate with a
        zoning designation of I-1 (light Industry). Open Material Storage
        use is not permitted in the AG designated areas.
        8. A “Construction/Demolition Site,” as that term is defined in
        the Zoning Ordinance, is permitted only by Special Exception by
        the Boone County Board of Zoning Appeals (“BZA”) in the
        areas designated with an I-1 zoning, I-2 zoning, or AG zoning.
        Defendants did not apply for a special exception with the BZA.
        9. I.C. [§] 36-7-4-1014 provides that Plaintiff may bring an action
        in a court of competent jurisdiction to enforce the Zoning
        Ordinance.
        10. On or about December 19, 2013, Defendants’ Property was
        inspected and found to contain a significant amount of dirt,
        concrete, debris, and an unpermitted construction trailer. It was
        determined that the accumulation of dirt, concrete, and debris
        has negatively affected drainage, and presented a high potential
        for off-site erosion and sedimentation in violation of the Boone
        County Drainage Ordinance. Defendants did not obtain a permit
        for the temporary construction trailer or a Drainage Permit in
        violation of the Zoning Ordinance.
        11. On or about March 17, 2014[,] a Notice to Stop Work Order
        (“Order”) was placed on the Property. Defendants did not
        comply with the Notice.
        12. On or about April 29, 2014, Defendants’ Property was
        inspected and found to contain piles of dirt, concrete, rebar,
        construction equipment, and an unpermitted construction trailer,
        and a second Order was posted on the Property.

Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 3 of 26
              13. Defendants, or their agents, have intentionally removed and
              destroyed two (2) Stop Work Orders posted on the Property by
              Plaintiff, and continue to conduct activities at the site in
              contravention of those Orders and the Zoning Ordinance.
              14. Defendants have been notified of the non-conforming uses of
              the Property by letters sent by U.S. Mail and Certified Mail, and
              have refused or failed to remedy the non-conforming uses of the
              Property.
              15. Defendants’ uses of the Property . . . are in violation of the
              Zoning Ordinance, Drainage Ordinance, and is a common
              nuisance.
      (App. 21-23) (emphases added). The Plan Commission sought a permanent

      injunction to “permanently enjoin Defendants from utilizing the Property as a

      construction/demolition site or an open material storage for storing dirt,

      concrete, rebar, debris, industrial or construction waste and other materials.”

      (App. 24). Additionally, the Plan Commission sought, subject to provisions of

      the Zoning Ordinance, “civil penalties of not more than Three Hundred Dollars

      ($300.00) per day” as well as attorney fees and costs. (App. 24).


[4]   On May 22, 2014, Blackford, a former prosecutor, filed a pro se answer to the

      complaint. In his answer, Blackford denied that he was using the Property for

      Open Material Storage or as a Construction/Demolition Site. In regard to the

      allegations contained in paragraph 10 of the Plan Commission’s complaint,

      Blackford answered, in part, as follows:


              OH MY GOD!!!! Rachel Cardis [the Plan Commission’s
              Executive Director] found a significant amount of dirt on my
              farm! I admit it. There is a large amount of dirt on my property.
              I find no authority whatsoever enabling any Boone County
              official to regulate dirt on my farm, either the bringing in of the
      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 4 of 26
              dirt, or the moving of dirt around on the property itself . . . After
              studying the zoning ordinance, I believe my impression is
              correct—there are no prohibitions to what I am doing . . . [T]he
              Complaint turns Bill Clintonish: “Mistakes were made”!!
              Mistakes don’t make themselves, and the phrase “It was
              determined” in paragraph 10 suffers the same ambiguity: Who
              made the determination that drainage has been negatively
              affected? What kind of qualifications does that person possess?
              Against what standard was the present condition compared in
              order to make such a determination? This allegation is void for
              vagueness. I had the property examined and surveyed by Hause
              Surveying and Engineering, and the surveyors and engineers
              determined that, in fact, there has been no impact whatsoever to the
              drainage at the property. All of the neighboring properties drained
              onto my farm. All the neighboring properties continue to drain
              onto my farm. There is no drainage from my farm to any neighboring
              property. I have no intention of altering that fact. Neither is there
              any off site erosion. I do not believe I need a drainage permit . . . .
      (Appellee’s App. 5-7) (emphases added). Blackford also asserted that any Stop

      Work Order was “void for lack of authority” because his activity on his

      property was “simply not prohibited by the zoning ordinance.” (Appellee’s

      App. 8). He also acknowledged that he had received correspondence from the

      Plan Commission but admitted that he had “ignored” it. (Appellee’s App. 9).

      Blackford did not raise any specific affirmative defenses in his answer.


[5]   Along with Blackford’s answer, he also filed a counterclaim, alleging that the

      Plan Commission had committed perjury in its complaint. Blackford alleged,

      in part, that:

              Paragraph #10 [of the Plan Commission’s complaint] is simply
              untrue on its face. It is unlikely anyone with a level of
              intelligence above that of [a] moron could conclude my activities

      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 5 of 26
              on my property have affected drainage. I have had my property
              surveyed by Hause Surveying and Engineering. They report I am
              having no effect on drainage.
      (Appellee’s App. 11). As part of his counterclaim, Blackford also asserted, “I

      am a former prosecutor.” (Appellee’s App. 12).


[6]   On May 30, 2014, the trial court held a pretrial conference, during which it set a

      bench trial for July 30, 2014. During that hearing, the trial court asked

      Blackford if he was going to hire counsel, and he indicated that he was not.

      That same day, Blackford filed a motion to dismiss, and the Plan Commission

      filed a response in opposition to Blackford’s motion shortly thereafter.2 On

      June 16, 2014, the trial court denied Blackford’s motion to dismiss.


[7]   On July 3, 2014, the Plan Commission filed a motion to amend its complaint,

      in which it requested “to include the [Drainage] Board as another Plaintiff.”

      (App. 26). In its motion, the Plan Commission stated that the Drainage Board

      was “an interested and an indispensable party” because the “original Complaint

      allege[d] violations of the Stormwater Management Ordinance of Boone

      County[.]” (App. 26). The Plan Commission stated that “the Amended

      Complaint ha[d] no substantive changes[,]” and it attached a copy of the

      amended complaint to its motion. (App. 26).




      2
       Blackford did not include a copy of his motion to dismiss or the Plan Commission’s opposition motion in
      his Appellant’s Appendix; nor did Boone County include a copy of these pleadings in their Appellees’
      Appendix.

      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015                   Page 6 of 26
[8]   In its proposed amended complaint, the Plan Commission alleged that the

      Drainage Board was “charged with exercising the enforcement of drainage and

      stormwater management regulations” and could “bring civil actions in its own

      name to enforce any provisions of the chapter” of the ordinance. (App. 28). In

      regard to the violation of the drainage ordinance, the Plan Commission also

      alleged that


              stormwater drainage improvements related to development of
              lands, and erosion and sediment control systems installed during
              new construction and grading of lots and other parcels of land
              located with[in] Bo[o]ne County are regulated by and subject to
              the Stormwater Management Ordinance of Boone County (the
              “Drainage Ordinance”) as adopted by the Commissioners of
              Boone County on April 21, 1997, and most recently amended on
              December 1, 2008.
      (App. 29). As in its complaint, the Plan Commission alleged in the amended

      complaint that “Defendants’ uses of the Property . . . [were] in violation of the

      Zoning Ordinance, Drainage Ordinance, and [were] a common nuisance.”

      (App. 31). The Plan Commission again sought a permanent injunction to

      “permanently enjoin Defendants from utilizing the Property as a

      construction/demolition site or an open material storage for storing dirt,

      concrete, rebar, debris, industrial or construction waste and other materials.”

      (App. 31). Additionally, the Plan Commission’s proposed amended complaint

      requested fines, pursuant to both the Zoning Ordinance and the Drainage

      Ordinance, for violations of these ordinances. Specifically, it sought: (1) under

      the provisions of the Zoning Ordinance, “civil penalties of not more than Three

      Hundred Dollars ($300.00) per day[;]” and (2) under the provisions of the

      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 7 of 26
      Drainage Ordinance, “civil penalties of not more than Five Thousand Dollars

      ($5000.00) per day[.]” (App. 32). It also sought attorney fees and costs.


[9]   On July 7, 2014, the trial court instructed Blackford that he had ten days to

      respond to the Plan Commission’s motion to amend the complaint. Fourteen

      days later, on July 21, 2014, Blackford filed a pro se Opposition to Plaintiff’s

      Motion to Amend Complaint (“opposition response”). In his opposition

      response, Blackford generally stated that he opposed the Plan Commission’s

      motion to amend, but he did not assert any specific objection to the addition of

      the Drainage Board. Blackford asserted, in part, that:

              The proposed amended Complaint, just as the original
              Complaint, contains no information which could in any way
              enable defendants to defend this action . . . Plaintiffs have not
              identified a single, living person as a plaintiff in order that
              defendants may undertake discovery. Is the Court going to
              entertain a Notice of Deposition of Boone County Drainage
              Board? Who’s going to show up? The original Complaint was
              drafted so poorly that plaintiff’s attorney is able to add an entire
              county board without even having to add to or change the
              language of the original Complaint. Is it possible that next week
              plaintiff’s attorney will move the court to add the FBI, the CIA,
              and the Department of Homeland Security to the list of plaintiffs?
              Who am I dealing with here?
                                                     *****
              The original Complaint, and it’s equally muddy proposed
              amended Complaint, both fail to state a basis for the court’s
              jurisdiction . . . .
              In short, the proposed amended Complaint fails to state a claim
              for which relief can be granted 12(b)(6), fails to state facts which



      Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015    Page 8 of 26
                could give rise to the court’s jurisdiction 12(b)(1), and gives rise
                to a motion for more definitive statement 12(e).


       (App. 34-36). Also on July 21, 2014, the trial court granted the Plan

       Commission’s motion to amend,3 and Boone County’s amended complaint was

       deemed filed as of that day.4


[10]   On Wednesday, July 30, 2014, the trial court held a bench trial on Boone

       County’s claims and Blackford’s counterclaim. At the beginning of trial,

       Blackford told the trial court that he had gotten notice the preceding Friday that

       the trial court had granted the Plan Commission’s request to file the amended

       complaint. He stated that he had not “had an opportunity to research what that

       d[id] to the landscape” and that he had “sought counsel beginning first thing

       Monday morning [June 28], because this ha[d] gotten more complicated.” (Tr.

       7).


[11]   The trial court questioned what Blackford needed to research, noting that he

       had already responded to the Plan Commission’s motion to amend and that he

       “had addressed the issue raised[.]” (Tr. 7). The trial court then discussed the

       procedural history surrounding the motion to amend, noting that Blackford had

       filed, in an untimely manner, his opposition response to the motion to amend



       3
        Blackford did not include a copy of the trial court’s order in his Appellant’s Appendix; nor did Boone
       County include a copy of it in their Appellees’ Appendix.
       4
        Boone County’s amended complaint contains a file-stamped date of July 24, 2014, but the chronological
       case summary (“CCS”) indicates that it was “([d]eemed filed on 7-21-14 by signed Order on that date).”
       (App. 5).

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015                      Page 9 of 26
       on July 21. The trial court indicated that, when it granted the Plan

       Commission’s motion to amend, the amended complaint attached to the

       motion was deemed filed on the date of the Plan Commission’s request, which

       was July 3. The trial court further stated that it “assumed” that Blackford’s

       opposition response was an answer to the amended complaint. (Tr. 10).

       Blackford stated that he thought he had twenty days from the date the trial

       court granted the motion to amend, which would have been twenty days after

       July 21. The trial court disagreed and stated that it was “deem[ing]” the

       [amended] Complaint answered[.]” (Tr. 11).


[12]   Blackford then requested a continuance so that he could hire an attorney,

       stating that that case had gotten “way more complex than it was when it first

       started” due to the addition of the Drainage Board and that he only became

       aware of the complexity when he got the order granting the motion to amend.

       (Tr. 12). Boone County objected, arguing that Blackford had been aware of the

       drainage issue because it was in the original complaint, he had been in

       communication with county officials since late 2013 about drainage issues, and

       he had “every opportunity to hire an attorney[.]” (Tr. 12). The trial court

       stated that the amended complaint “did not change the nature of the

       Complaint” and merely “added a necessary party.” (Tr. 13). When the trial

       court asked Blackford how the case had become more complex when the

       violation of the drainage ordinance was already at issue in the original

       complaint, he acknowledged that the nature of the complaint had not changed

       because paragraph ten in the original complaint contained an allegation that he


       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 10 of 26
had violated the drainage ordinance. He contended, however, that the addition

of the new party brought “a whole new prospective” to the case because it

added a party who was able to enforce the drainage ordinance violation issue.

(Tr. 15). Blackford asserted that he had not had the opportunity to review the

drainage issue and had “not [been] concerned” with the issue because the

Drainage Board was not a party. (Tr. 14). The trial court pointed out that

Blackford had done “nothing in response to that original Complaint to preclude

that [drainage ordinance violation] argument” and had not asserted that the

Plan Commission did not have a necessary party named. (Tr. 15). After

Blackford asserted that he had not responded to the drainage ordinance

violation allegation in his answer to the original complaint, the trial court stated

that Blackford’s “Answer filed on May the 22nd of 2014 did address paragraph

ten (10)” and the drainage violation issue. (Tr. 17). The trial court further

noted that, when the parties “were here the last time in Court” for a pretrial

hearing on May 30, 2014, the trial court had advised Blackford that “this was

[a] trial . . . not a small claims matter” and told him that he “would have to

adhere to the Rules of Evidence[.]” (Tr. 17). The trial court reminded

Blackford that during that pretrial hearing, it had asked him about hiring

counsel, and he indicated that he did not intend to do so. The trial court

determined that, between that pretrial hearing and the bench trial, the nature of

the complaint had not changed significantly, and it denied Blackford’s oral

request to continue the trial.




Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 11 of 26
[13]   During the bench trial, Blackford cross-examined Boone County’s witnesses

       regarding the allegations that Blackford had violated the drainage ordinance

       and the zoning ordinance. He also presented witnesses on his own behalf. At

       the end of the trial, the trial court took the matter under advisement.


[14]   Thereafter, on August 12, 2014, the trial court entered its order, enjoining

       Blackford “from further work” on his property “pending approval from the

       Boone County Plan Commission, the Boone County Drainage Board, and the

       Indiana Department of Environmental Management.” (App. 20). The trial

       court made the following relevant findings and conclusions regarding the

       procedural history leading up to trial, the denial of Blackford’s continuance

       request, and the claims asserted in Boone County’s amended complaint:

               52. The Boone County Area Plan Commission filed its original
               Verified Complaint for Injunction and Fine on May 1, 2014.
               That Complaint contained an allegation that the Defendants’ use
               of their Property constituted violations of both the Zoning
               Ordinance[] and Drainage Ordinance.
               53. . . . On May 22, 2014, Robert Blackford filed his Answer to
               Plaintiff’s Verified Complaint and Counter-Claim. Included in
               that Answer was [Blackford’s] answer to the paragraph of the
               Plaintiff’s Complaint that alleged violation of both the County
               [Zoning] Ordinance and the County Drainage Board Ordinance.
               54. Further, in Robert Blackford’s Counter-Claim he allege[d]
               that “It [was] unlikely anyone with a level of intelligence above
               that of a moron could conclude my activities on my property
               have affected drainage . . .” thereby addressing the portion of
               Plaintiff’s Complaint alleging a violation of the County Drainage
               Ordinance.



       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 12 of 26
           55. On July 3, 2014, Plaintiff Boone County Area Plan
           Commission requested leave to amend the Complaint earlier
           filed to include the Boone County Drainage Board as a necessary
           party, which motion contained a copy of the proposed Amended
           Complaint. Plaintiff’s Motion requested that the Court issue an
           order granting Plaintiff leave to file the Amended Complaint,
           that the Amended Complaint be deemed filed, and for all other
           just and proper relief.
           56. On July 7, 2014, the Court gave the Defendants ten (10) days
           to respond to Plaintiff’s Request to Amend.
           57. It was not until July 21, 2014, that Robert Blackford filed his
           Opposition to Plaintiff’s Motion to Amend Complaint. In that
           response, Robert Blackford stated that the “proposed amended
           Complaint fails to state a claim for which relief can be granted,
           fails to state facts which could give rise to the court’s jurisdiction,
           and gives rise to a motion of more definitive statement.”
           58. The Court did not read [Blackford’s] Opposition to oppose
           addition of a necessary party, but [as] to claim instead that no
           entity had the right to bring the current action against him.
           59. On July 24, 2014, the Plaintiffs marked for filing their earlier
           proposed Amended Complaint for Injunction and Fine. The
           Court having earlier so Ordered deemed that Amended
           Complaint filed as of July 3, 2014.5
                                                    *****
           61. Clearly, Plaintiffs proved violations of both the Boone
           County Zoning Ordinance and the Boone County Drainage
           Board Ordinance.
           62. Although this Court would not normally impose the
           maximum allowable fine upon such a finding, the Court finds
           most egregious, the Defendants’ total disregard for the authority
           of the Boone County Area Plan Commission and Drainage



5
    This is in conflict with the CCS as noted in footnote 4.


Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015     Page 13 of 26
        Board to regulate work on unincorporated land in Boone County
        and their blatant disregard for the Stop Work Orders issued.
        63. Until approximately 1983, Robert Blackford was an attorney
        by profession.
        64. . . . it was made clear to [Defendants] by the Area Plan
        Commission’s letter of March 17, 2014, that they bore total
        responsibility for violations upon their property and that they
        would be held financially accountable for any fines imposed. . . .
                                               *****
        66. The Court, having found that Robert C. Blackford and Susan
        J. Blackford violated Boone County Drainage Ordinance as set
        forth above, and finding the actions of the Defendants in ignoring
        the three (3) Stop Work Orders issued particularly egregious, the
        Court hereby assesses a fine of Five Thousand Dollars
        ($5,000.00) per day from the date of the face-to-face [meeting]
        between county officials and Robert Blackford on March 24,
        2014, through July 30, 2014. The Court sets fine upon these
        violations over the period of ninety[-]eight days in the sum of
        Four Hundred Ninety Thousand Dollars ($490,000.00).
        67. The Court having also determined that the Defendants
        violated the Boone County Zoning Ordinance, hereby assess fine
        upon that finding in the sum of Three Hundred Dollars ($300.00)
        per day for the period of ninety[-]eight days for a total fine upon
        those violations of Twenty Nine Thousand Four Hundred
        Dollars ($29,400.00).
        68. The Court, hereby finds for the Plaintiffs and against the
        Defendants, Robert C. Blackford and Susan J. Blackford, and
        enters Judgment in favor of the Plaintiffs and against the
        Defendants, jointly and severally, in the sum of Five Hundred
        Nineteen Thousand Four Hundred Dollars ($519,400.00), plus
        Court Costs of One Hundred Fifty Six Dollars ($156.00) and
        attorney fees in the sum of Eight Thousand Seven Hundred
        Fifteen Dollars ($8,715.00).



Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 14 of 26
               69. The Court further grants the Plaintiffs’ prayer for injunctive
               relief.


       (App.18-20).


[15]   Thereafter, Blackford, by counsel, filed a motion to correct error, in which he

       alleged that the trial court had erred by denying his request for a continuance.

       He argued that the denial of his request did not allow him to hire counsel,

       precluded him from filing an answer to the amended complaint with

       “potential” affirmative defenses and additional counterclaims, and was “in

       violation of his procedural due process rights to a fair hearing.” (App. 45).

       Blackford also alleged that the trial court’s denial of his request was erroneous

       because the trial court had mistakenly concluded that his time to file an answer

       had elapsed and that the changes to the amended complaint were non-

       substantive. Blackford asserted that the changes to the amended complaint

       were, instead, substantive because the original complaint “in no way could

       have placed [him] upon reasonable Notice as to the nature and extent of the

       drainage allegations that were ultimately raised by the Amended Complaint.”

       (App. 47). Blackford asked the trial court to grant him a new trial and to allow

       him to file responsive pleadings to the amended complaint. Boone County filed




       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 15 of 26
       a response to Blackford’s motion to correct error. 6 Without holding a hearing,

       the trial court denied Blackford’s motion. Blackford now appeals.


                                                    Decision
[16]   Blackford presents a single issue for our review and contends that the trial court

       erred by denying his oral request for a continuance.


[17]   Before we address this issue, we pause to note that Blackford neither challenges

       the trial court’s conclusion that he had violated the zoning and drainage

       ordinances nor does he challenge the $519,400.00 judgment entered against

       him. While, at first blush, that amount may seem excessive, a review of the

       record reveals that there is significant evidence of the damage and negative

       effect on drainage caused by his dumping of dirt in violation of the ordinances

       and his willful defiance of multiple stop-work orders. For example, the

       evidence reveals that in December 2013, county officials inspected Blackford’s

       property, found a significant amount of dirt, and then informed Blackford by

       letter of the need to comply with the local ordinances. The record further

       shows that after meeting on March 24, 2014 with county officials, who told

       Blackford to cease dumping dirt on his property, he dumped approximately

       2,000-3,000 additional truckloads of dirt. Additionally, a witness who worked

       at a golf course directly south of Blackford’s property testified that, after




       6
        Boone County’s response is not included in either Blackford’s Appellant’s Appendix or Boone County’s
       Appellee’s Appendix.

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015                 Page 16 of 26
       learning that Blackford had a stop-work order issued against him, he started to

       count the number of tri-axle dump trucks that off-loaded dirt at Blackford’s

       property and that between June 3 and July 28, 2014, he counted 596 trucks.

       This witness also testified that Blackford was causing more water than normal

       to back up onto the golf course after a heavy rain and that dirt from Blackford’s

       property had caused dirt to build up around the drain on his property. A police

       officer also testified regarding the numerous tri-axle dump trucks he had seen

       dumping dirt onto Blackford’s property. The officer testified that the dumping

       of dirt on Blackford’s property had caused mud to accumulate on the nearby

       road. He also testified that, after a heavy rain, the water would pool on the

       road at a depth that could cause people to hydroplane. Finally, we point out

       that the trial court imposed fines under the ordinances only from the date that

       Blackford personally met county officials while it could have included dates

       prior to that.


[18]   We now turn to Blackford’s challenge to the trial court’s denial of his oral

       request for a continuance. Pursuant to our Indiana Trial Rules, “[u]pon [a]

       motion” to continue a trial filed by a party, a trial court has “discretion” to

       “postpone[] or continue[]” the trial. Ind. Trial Rule 53.5. “[A] trial court shall

       grant a continuance upon motion and ‘a showing of good cause established by

       affidavit or other evidence.’” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind.

       2009) (quoting Ind. Trial Rule 53.5) (emphasis added). “A trial court’s decision

       to grant or deny a motion to continue a trial date is reviewed for an abuse of

       discretion, and there is a strong presumption the trial court properly exercised


       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 17 of 26
       its discretion.” Id. “A denial of a motion for continuance is [considered to be

       an] abuse of discretion only if the movant demonstrates good cause for granting

       it.” Id. “However, no abuse of discretion will be found when the moving party

       has not demonstrated that he or she was prejudiced by the denial.” Riggin v.

       Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). “There are

       no mechanical tests for deciding when a denial of a continuance is so arbitrary

       as to violate due process. The answer must be found in the circumstances

       present in every case, particularly in the reasons presented to the trial judge at

       the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786, 790 (Ind. Ct.

       App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-590 (1964), reh’g

       denied).


[19]   Continuances to allow time for additional preparation are generally disfavored

       and require a showing of “good cause” and how “it is in the interests of

       justice.” Williams v. State, 681 N.E.2d 195, 202 (Ind. 1997). See also Clodfelder v.

       Walker, 125 N.E.2d 799, 800 (Ind. 1955) (explaining that a motion for

       continuance should be made at the earliest practicable time after knowledge of

       the necessity for a continuance). Furthermore, “[a] continuance requested for

       the first time on the morning of trial is not favored.” Lewis v. State, 512 N.E.2d

       1092, 1094 (Ind. 1987).


[20]   When arguing that the trial court abused its discretion, Blackford first contends

       that the trial court’s denial of his continuance request, which was based on his

       assertion that he wanted to hire an attorney, resulted in a violation of his due

       process rights. Secondly, he contends that the trial court’s denial of his

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 18 of 26
       continuance request was erroneous because the trial court found that his

       opposition response served as his answer to the amended complaint and that his

       time to file an answer to the amended complaint had passed.


[21]   Boone County argues that the trial court did not abuse its discretion by denying

       Blackford’s continuance request because he “did not show, by affidavit or other

       evidence, a good cause to request the continuance.” (Boone County’s Br. 17).

       Boone County also contends that the trial court’s ruling was not an abuse of

       discretion because Blackford knew of the drainage ordinance violation

       allegations and “had sufficient time to prepare a defense, request a continuance,

       or hire counsel prior to the trial date.” (Boone County’s Br. 17).


[22]   We agree with Boone County that the trial court’s denial of Blackford’s

       continuance request made on the day of trial was not an abuse of discretion and

       did not violate any potential right to due process, and we find that our Indiana

       Supreme Court’s opinion in Gunashekar to be instructive to the resolution of this

       issue. In that case, the plaintiff filed a complaint, alleging that the defendants

       had breached a contract and had committed conversion and deception.

       Gunashekar, 915 N.E.2d at 954. The defendants, who were not native English

       speakers, originally had an attorney, but he filed a motion to withdraw his

       appearance eight weeks before trial. Id. The trial court granted the motion six

       weeks before the trial, leaving the defendants without an attorney. Id. Eleven

       days before trial, the defendants filed a pro se motion to continue the trial,

       stating that they wanted to hire new counsel. Id. The defendants did not attach

       an affidavit or present evidence explaining their interim efforts to hire a new

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 19 of 26
       attorney. Id. The trial court denied the motion and held the scheduled bench

       trial. Id. The trial court entered judgment against the defendants in the amount

       of $147,337.04 and an additional $296,520.00 for treble damages and attorney

       fees. Id. at 955.


[23]   On appeal, the defendants argued, in part, that the trial court had abused its

       discretion by denying their motion to continue the trial to hire a new attorney.

       Id. Our Court agreed and reversed the trial court’s judgment and remanded for

       a new trial. Id. (citing Gunashekar v. Grose, No. 02A03-0712-CV-614, 2008 WL

       3311840, slip op. at 2 (Ind. Ct. App. Aug. 12, 2008), trans. granted). Our

       Indiana Supreme Court, however, granted transfer and held that the trial court

       did not abuse its discretion by denying the defendants’ motion to continue the

       trial. Id. 955-56. Our supreme court explained that “the trial court was entitled

       to consider how long the trial had been scheduled, the lack of explanation for

       eight weeks of apparent inaction, the relative simplicity of a three-witness bench

       trial, and the potential that the request was a conscious gaming of the system.”

       Id. at 956.


[24]   Like in Gunashekar, the trial court here did not abuse its discretion by denying

       Blackford’s request to continue the bench trial. Here, Blackford, who had been

       an attorney and former prosecutor, represented himself throughout the

       proceeding and filed various pleadings, including an answer, counterclaim,

       motion to dismiss, and opposition response to the motion to amend. After the

       trial court had set the case for a bench trial, the Plan Commission filed a motion

       to amend its complaint on July 3, 2014, seeking to add the Drainage Board as a

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 20 of 26
       plaintiff. The trial court granted the motion on July 21, and Blackford received

       notice of the order on July 24. Blackford, however, waited until the morning of

       trial on July 30, 2014, to make an oral request for the trial court to continue the

       trial, contending that he had just become aware of the drainage ordinance

       violation issue on July 24 and needed to hire counsel to deal with this new

       complex issue. However, both the original complaint and the amended

       complaint contained allegations that Blackford had violated the drainage

       ordinance. When the trial court asked Blackford how the case had become

       more complex when the violation of the drainage ordinance was already at

       issue in the original complaint, he acknowledged that the nature of the

       complaint had not changed because paragraph ten in the original complaint

       contained an allegation that he had violated the drainage ordinance. Blackford

       asserted that he had “sought counsel” on June 28, but he gave no further

       explanation or details regarding whether he was close to retaining an attorney

       or whether he needed additional time to do so. (Tr. 7). Before denying

       Blackford’s oral request, the trial court noted that it had, at a May 30 pretrial

       hearing, asked Blackford about hiring counsel, and he indicated that he had

       stated that he did not intend to do so.


[25]   Blackford’s continuance request was done by an oral motion on the day of trial

       and not by a motion supported by an “affidavit or other evidence” or a

       “showing of good cause” as required by Trial Rule 53.5. “[A] pro se litigant is

       held to the same established rules of procedure that trained counsel is bound to

       follow.” Gunashekar, 915 N.E.2d at 955. Because Blackford did not articulate


       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 21 of 26
       any good cause for the continuance or show that he would be prejudiced, and

       given the deference to the trial court’s decision on this matter, we conclude that

       the trial court did not abuse its discretion by denying Blackford’s oral request

       for a continuance made on the morning of trial. See, e.g., Gunashekar, 915

       N.E.2d at 956 (affirming the trial court’s denial of a motion to continue the

       bench trial); Fetner v. Maury Boyd & Assocs., Inc., 563 N.E.2d 1334, 1338 (Ind. Ct.

       App. 1990) (affirming the trial court’s denial of the defendant’s motion to

       continue to hire counsel and holding that the denial of the motion to continue

       did not constitute a violation of due process), reh’g denied, trans. denied.


[26]   We now turn to Blackford’s argument that the trial court erred by denying his

       request to continue the trial so that he could file an answer to the amended

       complaint. Blackford contends that the trial court erred by treating his

       opposition response as an answer to the amended complaint. He also contends

       that the trial court erred by finding that the time to file an answer to the

       amended complaint had passed, and he asserts that pursuant to Trial Rule 15,

       he had twenty days from July 21, 2014 to file his answer to the amended

       complaint.


[27]   Here, at the beginning of trial, Blackford told the trial court that the amended

       complaint had made things “more complicated” and that he needed time to do

       more research. When Blackford asserted that he should be given more time so

       that he could file an answer to the amended complaint, the trial court disagreed.

       The trial court noted that Blackford had already responded to the Plan

       Commission’s motion to amend and that he had addressed the drainage issue.

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015    Page 22 of 26
       (Tr. 7). The trial court stated that it “assumed” that Blackford’s opposition

       response was an answer to the amended complaint, and it “deem[ed] the

       Complaint answered.” (Tr. 10, 11). The trial court also stated that Blackford’s

       twenty-day period for filing an answer had already passed because the amended

       complaint was deemed filed as of July 3, 2014, when the Plan Commission filed

       the motion to amend.


[28]   In regard to Blackford’s argument that the trial court erred by treating his

       opposition response as an answer to the amended complaint, we note that

       “courts are not bound by a party’s characterization of a motion[.]” YTC Dream

       Homes, Inc. v. DirectBuy, Inc., 18 N.E.3d 635, 642 (Ind. Ct. App. 2014) (quoting

       Stephens v. Irvin, 734 N.E.2d 1133, 1135 n. 1 (Ind. Ct. App. 2000)), opinion aff'd

       in relevant part, vacated in part, 30 N.E.3d 701 (Ind. 2015). A review of

       Blackford’s opposition response reveals that it generally stated that he opposed

       the Plan Commission’s motion to amend, but he did not assert any specific

       objection to the addition of the Drainage Board. Instead, Blackford addressed

       some of the allegations, denying that he had personally placed any of the dirt on

       his property or that he had violated an ordinance. He also asserted affirmative

       defenses, including lack of jurisdiction and failure to state a claim. Thus, we

       cannot conclude that the trial court erred in the manner asserted by Blackford.


[29]   Turning to Blackford’s argument that the trial court erred by finding that the

       time to file an answer to the amended complaint had passed, we note that Trial

       Rule 15(A) addresses amendments to pleadings and answers thereto. This rule

       provides in relevant part:

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 23 of 26
               [A] party may amend his pleading only by leave of court or by
               written consent of the adverse party; and leave shall be given
               when justice so requires. A party shall plead in response to an
               amended pleading within the time remaining for response to the
               original pleading or within twenty [20] days after service of the
               amended pleading, whichever period may be the longer, unless the
               court otherwise orders.


       (Emphasis added).


[30]   We note that the CCS indicates that the amended complaint was deemed filed

       as of July 21, when the trial court entered the order granting the Plan

       Commission’s motion. Thus, less than twenty days would have passed from

       that July 21st date to the July 30th bench trial. Nevertheless, Trial Rule 15(A)

       provides that this twenty-day period can be altered if “the court otherwise

       orders.”


[31]   Moreover, we cannot agree that the twenty-day time limit set forth in Trial Rule

       15(A) is controlling on the determination of whether the trial court erred by not

       allowing Blackford to file an additional pleading in addition to his opposition

       response, which, as discussed above, the trial court treated as the functional

       equivalent of an answer. Here, the original complaint contained an allegation

       that Blackford had violated the drainage ordinance, but that complaint did not

       list the Drainage Board, the real party in interest to the claim, as a plaintiff.

       Thereafter, the Plan Commission sought to amend the complaint to add the

       Drainage Board as a party plaintiff, stating that it was “an interested and an

       indispensable party to this action.” (App. 26).


       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 24 of 26
[32]   “Our rules of trial procedure promote the participation of the real party interest

       in litigation.” Inlow v. Henderson, Daily, Withrow & DeVoe, 787 N.E.2d 385, 398

       (Ind. Ct. App. 2003), trans. denied. “A real party in interest . . . is the person

       who is the true owner of the right sought to be enforced.” Hammes v. Brumley,

       659 N.E.2d 1021, 1030 (Ind. 1995), reh’g denied. Indiana Trial Rule 17(A)

       provides that “[e]very action shall be prosecuted in the name of the real party in

       interest.” This rule further provides that:


               No action shall be dismissed on the ground that it is not
               prosecuted in the name of the real party in interest until a
               reasonable time after objection has been allowed for the real
               party in interest to ratify the action, or to be joined or substituted
               in the action. Such ratification, joinder, or substitution shall have
               the same effect as if the action had been commenced initially in
               the name of the real party in interest.


[33]   Trial Rule 17(A). “As evidenced by the clear language in Trial Rule 17, it

       encourages allowing the real party in interest to be joined or substituted in the

       action[.]” Hammes, 659 N.E.2d at 1030. “Trial Rule 17 also clearly states that

       the substitution of a real party in interest relates back to the date the initial

       complaint was filed.” Id. Because the amended complaint added the Drainage

       Board as the real party in interest for the drainage ordinance violation issue,

       pursuant to Trial Rule 17(A), that substitution of the real party in interest

       related back to the date the initial complaint was filed. Thus, under the specific

       facts of this case, the trial court did not err when it refused to allow Blackford to

       file an answer to the amended complaint.


       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015   Page 25 of 26
[34]   Affirmed.7


       Crone, J., and Brown, J., concur.




       7
         At the end of their Appellee Brief, Boone County included a single-sentence request, asking this Court to
       “award them the reasonable attorney fees under Ind. Appellate Rule 67(C).” (Boone County Br. 26).
       Appellate Rule 67 applies to “costs,” not attorney fees. See Ind. App. R. 67(A). This rule further provides
       that “[u]pon a motion . . . within sixty (60) days after the final decision of the Court of Appeals, the Clerk
       shall tax costs[.]” App. R. 67(A) (emphasis added). These costs include: (1) the filing fee; (2) the cost of
       preparing the Record on Appeal, including the Transcript and Appendix; and (3) postage expenses for service
       of documents with the Clerk. App. R. 67(B). Because Appellate Rule 67 pertains to costs, which must be set
       out by a party entitled to costs and requested after a final decision, we decline Boone County’s request at this
       time.

       Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015                       Page 26 of 26
