 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
court except for the purpose of establishing                           Feb 22 2019, 8:57 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James F. Glass                                           Christopher N. Wahl
Indianapolis, Indiana                                    Kye J. Steffey
                                                         David J. Saferight
                                                         Steffey Wahl, LLC
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James F. Glass,                                          February 22, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-PL-2274
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
CPG Partners, LP, JDR                                    The Honorable James D. Worton
Fixtures, Inc., Under Armour                             Trial Court Cause No.
Premium Outlet, KP Sullivan                              03D01-1604-PL-2286
Builders, Inc.,
Appellees-Defendants.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019               Page 1 of 21
[1]   James F. Glass appeals the trial court’s order dismissing his action against CPG

      Partners, LP, JDR Fixtures, Inc., Under Armour Retail, Inc., (“Under

      Armour”), and KP Sullivan Builders, Inc. (“KP Sullivan Builders” and

      collectively, the “Defendants”). 1 He raises five issues which we revise and

      restate as:


            I.     Whether the trial court abused its discretion when it released a
                   mechanic’s lien;

           II.     Whether the court erred in granting the motion to dismiss filed
                   by CPG Partners, LP, JDR Fixtures, Inc., and Under Armour;

          III.     Whether the court abused its discretion when it denied Glass’s
                   motion for default judgment;

          IV.      Whether the court erred or abused its discretion in ultimately
                   denying Glass’s February 5, 2018 motion for change of judge;
                   and

           V.      Whether the court abused its discretion in dismissing Glass’s
                   claim under Ind. Trial Rule 41(E).


      We affirm.


                                       Facts and Procedural History

[2]   On April 18, 2016, Glass filed a mechanic’s lien which listed the property name

      in part as “Under Armor [sic] Remodel, Edinburgh Premium Outlets” and

      asserted: “After deducting such credits and offsets for the Claimants [sic] work




      1
       The Defendants list Under Armour Premium Outlet as an Appellee on its caption page but also lists the
      attorneys as the attorneys for “Under Armour Retail, Inc., incorrectly named as Under Armour Premium
      Outlet.” Appellees’ Brief at 1.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019             Page 2 of 21
      and material, the sum of $13,500.00 dollars together with 10% per annum is

      due and owing to the Claimant from this date, March 22, 2016.” Appellant’s

      Appendix Volume II at 38.


[3]   On April 22, 2016, Glass, pro se, filed a complaint against the Defendants and

      alleged two causes of action. He alleged under a breach of contract claim that

      he and KP Sullivan Builders entered into a written agreement by which he

      agreed to furnish certain labor, services, equipment, and materials for work of

      improvements on the building parcel for an agreed contract price of $15,000.

      He alleged that “[t]he labor, services, equipment, and materials furnished by

      [him] had and have a reasonable value” of $13,500 and that KP Sullivan

      Builders breached the agreement and owed him $13,500 with interest. Id. at 43.

      With respect to a claim for the foreclosure of the mechanic’s lien, he asserted

      that “[e]ach defendant claims some right, title, or interest in or to the building

      parcel . . . .” Id. In what appears to be the conclusion of his complaint, Glass

      demanded judgment in the sum of $15,500 together with interest as damages for

      breach of contract, $66 in costs incurred in recording the mechanic’s lien claim

      and court filing fees of $300, and that “[t]he sum of $15,866.00, together with

      attorney fees and interest, be ordered as a lien against the building parcel . . . .”

      Id. at 44.


[4]   On May 11, 2016, KP Sullivan Builders filed a Motion to Set Amount of Surety

      for Written Undertaking asserting that the total amount of the mechanic’s lien

      was $13,500 and requesting that the court set a sum certain to enable KP

      Sullivan Builders to file a written undertaking with surety pursuant to Ind. Code

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 3 of 21
      §§ 32-28-3. An entry dated May 16, 2016, in the chronological case summary

      (“CCS”) states: “Order on Motion to Set Amount of Surety for Written

      Undertaking. The Court sets the amount of surety for written undertaking to

      release the mechanic’s liens shall be set in the amount of $15000.00 . . . .” Id. at

      3.


[5]   On June 6, 2016, KP Sullivan Builders filed a written undertaking with surety

      and attached a surety from Western Surety Company, which states in part:


              That we, [KP Sullivan Builders] as Principal(s), and Western
              Surety Company, a corporation authorized to do surety business
              in the State of Indiana, as Surety, are held and firmly bound unto
              [Glass], as Obligee, in the penal sum of not to exceed [$15,000],
              for the payment of which well and truly to be made, we bind
              ourselves and our legal representatives, firmly by these presents. .
              ..

              Whereas, the Principal(s) desire(s) to have such lien released by
              filing this bond in accordance with Ind. Code § 32-8-3-11.

              Now, therefore, the condition of this obligation is such that if the
              Principal(s) shall pay the Obligee, as holder of the lien, any
              judgment that may be recovered in this proceeding, including
              costs and attorneys’ fees allowed by the court, if the claim on
              which the judgment is founded shall be found by the court to
              have been a lien on the property at the time of the
              commencement of this action, then this obligation to be void;
              otherwise to remain in full force and effect.


      Id. at 137 (capitalization omitted).


[6]   On June 10, 2016, the court entered an order stating that the court accepted the

      written undertaking with surety filed by KP Sullivan Builders and ordered that

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 4 of 21
      “the property described in Plaintiff James F. Glass’ Mechanic’s Liens filed with

      the Bartholomew County Recorder’s office as Document Numbers

      2016002360, 2016002580, and 2016003169, is hereby released from the Lien’s

      [sic] recorded by James F. Glass and the property shall be discharged from the

      Liens pursuant to Indiana Code § 32-28-3-11(c)(1) and (2).” Appellees’

      Appendix Volume II at 12.


[7]   On July 18, 2016, CPG Partners, LP, JDR Fixtures, Inc., and Under Armour

      filed a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). They argued that

      Glass’s claims against them were improper because Glass’s claims arise out of a

      subcontract agreement entered into between Glass and KP Sullivan Builders

      and that they were not in privity of contract with Glass. They also requested

      attorney fees and costs. A CCS entry with a minute entry date of July 18, 2016,

      states that a pre-trial conference was scheduled for September 22, 2016, and a

      jury trial was scheduled for October 25, 2016.


[8]   A CCS entry dated July 25, 2016, indicates that the trial court scheduled a final

      pre-trial conference for September 22, 2016, and a jury trial for October 25,

      2016. On September 15, 2016, Glass filed a Motion for Extension of Time. On

      September 19, 2016, the court entered an order which states: “Comes now the

      Plaintiff, James F. Glass and files his Motion for Extension of time to research

      and comply to the [sic] pre-trial order. IT IS THEREFORE ORDERED BY

      THE COURT that the defendant may have an extension of time to and

      including October 14, 2016, within which to answer.” Id. at 51.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 5 of 21
[9]    On September 19, 2016, the Defendants filed a motion for continuance of the

       October 25, 2016 jury trial and all related deadlines. The CCS contains an

       entry dated September 22, 2016, which states: “Converted Event[.] Calendar:

       Final Pre-Trial Conference (Time: 16:00:00) (Judge: D01).” Appellant’s

       Appendix Volume II at 7 (capitalization omitted). On September 27, 2016, the

       court granted the motion, ordered that all deadlines set in the July 18, 2016 pre-

       trial conference order be vacated, and scheduled a trial date of April 11, 2017.


[10]   On September 29, 2016, Glass filed a motion for default judgment pursuant to

       Ind. Trial Rule 55 and asserted that there was no continuance of the September

       22, 2016 hearing and that neither the Defendants nor their attorneys appeared

       at that conference. On September 30, 2016, KP Sullivan Builders, CPG

       Partners, LP, JDR Fixtures, Inc., and Under Armour filed a verified response in

       opposition to Glass’s motion for default judgment. They argued that Glass was

       granted an extension of time until October 14, 2016, and asserted that “[t]hese

       pleadings are typically reviewed and discussed at the final pre-trial conference.”

       Appellees’ Appendix Volume II at 58. They asserted that they filed a motion

       for a continuance on September 19, 2016, their counsel called the court the

       week of the final pre-trial conference to determine whether their motion for

       continuance had been granted and was told to call back later in the week,

       counsel contacted the court around 9:00 a.m. on September 22, 2016, and was

       asked to call back later that afternoon, and counsel again contacted the court

       around 12:45 p.m. and was informed that the Judge had signed the order for a

       continuance and the order was being held until a new trial date was


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 6 of 21
       determined. They also asserted that their “counsel specifically asked for

       confirmation that the final pre-trial conference was therefore cancelled and they

       did not need to appear that afternoon, which the [c]ourt answered in the

       affirmative.” Id. at 58-59. On October 5, 2016, the court denied Glass’s motion

       for default judgment.


[11]   On October 20, 2016, the court entered an order granting the motion to dismiss

       filed by CPG Partners, LP, JDR Fixtures, Inc., and Under Armour, dismissing

       Glass’s complaint against them with prejudice, awarding attorney fees and

       costs, and scheduling a hearing for December 1, 2016.


[12]   On October 28, 2016, Glass filed a motion for change of judge. On January 10,

       2017, the court denied Glass’s motion. On January 20, 2017, Glass filed a

       Motion to Hold the Cause in Abeyance until the Indiana Supreme Court Rules

       on the Petition for Writ of Mandamus. On March 27, 2017, KP Sullivan

       Builders filed a motion to continue. On April 10, 2017, the court denied

       Glass’s Motion to Hold Cause in Abeyance Pending Supreme Court Ruling on

       Petition for Writ of Mandamus. That same day the court granted the motion

       for continuance and rescheduled the trial for September 26, 2017.


[13]   On April 18, 2017, Glass filed a Verified Petition for Writ of Mandamus and

       Prohibition. On April 19, 2017, the Indiana Supreme Court entered an order

       which states: “While the pleadings are procedurally deficient in several respects,

       the Court addresses the petition on its merits. Because Mr. Glass seeks a




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 7 of 21
       remedy that is not appropriate under the rules and law governing writs of

       mandamus and prohibition, this original action is DISMISSED.” Id. at 85.


[14]   On April 25, 2017, the court reset the April 20, 2017 hearing due to the Judge

       being ill and rescheduled the hearing for June 19, 2017. On October 12, 2017,

       Glass filed a Motion to Set Jury Trial Date.


[15]   On December 6, 2017, the court entered an order scheduling the jury trial for

       October 16, 2018. That same day, the court entered an order granting a petition

       filed by KP Sullivan Builders for attorney fees in the sum of $443.50. On

       December 15, 2017, Glass filed a motion to set aside judgment pursuant to

       Trial Rule 60(B). On January 4, 2018, the court denied Glass’s motion and

       granted KP Sullivan Builders’ request for attorney fees.


[16]   On February 5, 2018, Glass filed a motion for change of judge pursuant to Ind.

       Trial Rule 76(B), which the trial court granted on February 8, 2018. On

       February 19, 2018, counsel for KP Sullivan Builders filed a Notice of Selection

       of Special Judge which stated that the parties had agreed to Judge Kelly

       Benjamin as the special judge and requested the court to appoint her. A CCS

       entry dated February 20, 2018, indicates that Judge James D. Worton entered

       an order appointing Judge Benjamin as special judge upon her qualifying. On

       March 2, 2018, Judge Benjamin filed a Notice Declining Appointment which

       asserted: “Change of Venue is not appropriate under Trial Rule 76(C) as the

       parties failed to request the change within the required time limits.” Id. at 156.

       On March 5, 2018, Judge Worton entered an order finding that Judge Benjamin


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 8 of 21
       had declined appointment of Special Judge and stating: “IT IS THEREFORE

       ORDERED that the Change of Venue is denied as the parties failed to request

       the change within the required time limits as set forth in Trial Rule 76(C).” Id.

       at 157. On March 16, 2018, Glass filed a motion in which he objected to any

       jury trial date or any other hearing date being scheduled until a special judge is

       selected. A CCS entry dated March 23, 2018, states: “Order Denying Plaintiff’s

       Motion in Opposition of [sic] Deft’s Motion to Vacate Change of Judge and a

       Motion Objection [sic] to Setting Jury Trial Date or Any Other Trial Setting.

       The Court now sets this matter for pre trial conf on May 18, 2018 at 4:00 p.m.”

       Appellant’s Appendix Volume II at 16 (capitalization omitted).


[17]   On April 17, 2018, KP Sullivan Builders filed a motion to dismiss for failure to

       prosecute pursuant to Ind. Trial Rule 41(E). On August 20, 2018, the court

       held a hearing. Counsel for KP Sullivan Builders argued that Glass had failed

       to take any action for approximately two years to advance his case towards trial

       in any meaningful way and instead dedicated his actions to continuously

       relitigate the same preliminary issues regarding the dismissal of three of the

       defendants. Glass argued that he saw no reason for the court to dismiss the

       case because all the rules had been followed and the Defendants requested

       multiple continuances. The court took the matter under advisement.


[18]   On August 22, 2018, the court entered an order which granted KP Sullivan

       Builders’ motion for attorney fees in the sum of $1,267.50, granted KP Sullivan

       Builders’ motion to dismiss for failure to prosecute, and dismissed the case with

       prejudice.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 9 of 21
                                                    Discussion

[19]   We note that Glass is proceeding pro se. Such litigants are held to the same

       standard as trained attorneys and are afforded no inherent leniency simply by

       virtue of being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.

       2014) (citing Matter of G.P., 4 N.E.3d 1158 (Ind. 2014)). This Court will “not

       become an advocate for a party, or address arguments that are inappropriate or

       too poorly developed or expressed to be understood.” Basic v. Amouri, 58

       N.E.3d 980, 984 (Ind. Ct. App. 2016), reh’g denied.


                                                          I.


[20]   The first issue is whether the trial court abused its discretion when it released

       the mechanic’s lien. A trial court abuses its discretion if its decision is clearly

       against the logic and effect of the facts and circumstances before it. Bailey v.

       Holliday, 806 N.E.2d 6, 8-9 (Ind. Ct. App. 2004) (citing McCullough v. Archbold

       Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)).


[21]   Glass argues that the trial court abused its discretion when it “released the

       mechanic’s lien on owner property in the amount of $15,000.00” because the

       amount was not “enough to cover the cost of the $15,866.00 plus attorney fees”

       requested in his foreclosure of the mechanic’s lien. Appellant’s Brief at 13.

       Defendants argue that Glass waived this issue because he never filed any

       response to the motion to set the amount of surety or raised any objection to the

       amount of surety set. They also contend that, waiver notwithstanding, the trial




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 10 of 21
       court did not abuse its discretion in setting the amount of surety required to

       release the mechanic’s lien.


[22]   Glass did not respond to the Motion to Set Amount of Surety for Written

       Undertaking filed by KP Sullivan Builders or object to the trial court’s order.

       Even assuming he did not waive this issue, we cannot say that reversal is

       warranted.


[23]   Ind. Code § 32-28-3-11 provides:


               (a) In an action to foreclose a lien:

                        (1) the defendant or owner of the property subject to the
                        lien; or

                        (2) any person having an interest in the property subject to
                        the lien, including a mortgagee or other lienholder;

               may file in the action a written undertaking with surety to be
               approved by the court.

               (b) An undertaking filed under this section must provide that the
               person filing it will pay any judgment that may be recovered in
               the action to foreclose the lien, including costs and attorney’s fees
               allowed by the court, if the claim on which the judgment is
               founded is found by the court to have been a lien on the property
               at the time the action was filed.

               (c) If an undertaking is filed and approved by the court:

                        (1) the court shall enter an order releasing the property
                        from the lien; and

                        (2) the property shall be discharged from the lien.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 11 of 21
[24]   Glass points to Bailey v. Holliday, 806 N.E.2d 6 (Ind. Ct. App. 2004). In that

       case, a contractor filed a notice of intention to hold a mechanic’s lien for $5,400

       on the owners’ real estate and later filed a complaint to foreclose the lien. 806

       N.E.2d at 8. The owners paid $5,400 to the trial court clerk and filed a written

       undertaking, which stated in part that they “pay the amount into Court with a

       full understanding and acknowledgement the same represents their personal

       surety to pay a judgment, if any, rendered by this Court on the foreclosure filed

       by [Contractor] herein.” Id. at 9. The trial court ordered that the written

       undertaking be approved and that the mechanic’s lien against the owners’

       property be released. Id. at 8.


[25]   On appeal, this Court held that it could not say that the owners’ surety, which

       covered only the amount of the lien, and their “personal surety” or mere

       statement that they would pay any potential judgment that may stem from the

       foreclosure action, complied with the undertaking statute. Id. at 10. We

       observed that the owners “filed a written undertaking with surety that covered

       only the amount of the lien and stated that they would pay for any potential

       judgment” and while the owners deposit of cash with the clerk was generally an

       adequate form of surety, here it “was not adequate . . . because it covered only

       part of the judgment that could potentially be recovered.” Id. at 11. Further,

       the “[o]wners’ words did not provide any kind of guarantee beyond their

       already existing legal obligation to pay a potential judgment.” Id. We

       concluded that the trial court abused its discretion by releasing the mechanic’s

       lien from the owners’ property. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 12 of 21
[26]   Unlike in Bailey, in which the owners deposited a cash amount equal to the lien

       with the court, KP Sullivan Builders obtained a surety from Western Surety

       Company in the amount of $15,000, which was more than the mechanic’s lien

       of $13,500 filed by Glass and which stated that KP Sullivan Builders and

       Western Surety Company “are held and firmly bound unto [Glass], as Obligee,

       in the penal sum of not to exceed [$15,000], for the payment of which well and

       truly to be made, we bind ourselves and our legal representatives, firmly by

       these presents.” Appellant’s Appendix Volume II at 137. We find that KP

       Sullivan Builders filed an undertaking and surety which complied with Ind.

       Code § 32-28-3-11. We cannot say that the trial court abused its discretion by

       releasing the lien.


                                                         II.


[27]   The next issue is whether the trial court erred in granting the motion to dismiss

       filed by CPG Partners, LP, JDR Fixtures, Inc., and Under Armour. “We

       review de novo the trial court’s grant or denial of a motion based on Indiana

       Trial Rule 12(B)(6).” Bd. of Comm’rs of Union Cty. v. McGuinness, 80 N.E.3d 164,

       167 (Ind. 2017) (quoting Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d

       1120, 1122 (Ind. 2010)). “In so reviewing, ‘we look at the complaint in the light

       most favorable to the plaintiff, with every inference drawn in its favor, to

       determine if there is any set of allegations under which the plaintiff could be

       granted relief.’” Id. (quoting King v. S.B., 837 N.E.2d 965, 966 (Ind. 2005)). “A

       dismissal under Trial Rule 12(B)(6) is improper unless it appears to a certainty

       that the plaintiff would not be entitled to relief under any set of facts.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 13 of 21
[28]   Glass appears to argue that CPG Partners, LP, was the owner of the parcel, that

       JDR Fixtures, Inc., was the “leasing Owner of the property,” and Under

       Armour enjoyed the direct benefit of the painting he performed. Appellant’s

       Brief at 15. Defendants argue that Glass offers no argument or citation to

       authority to demonstrate how the trial court erred by granting the motion to

       dismiss after KP Sullivan Builders filed its written undertaking with surety and

       the lien was released from the property. They assert that the surety submitted

       by KP Sullivan Builders guaranteed payment for any amount of judgment that

       Glass “may have otherwise been able to obtain against the lien defendants in

       this matter, thus rendering any claims against the lien defendants unnecessary.”

       Appellees’ Brief at 22.


[29]   The record reveals that Glass’s complaint alleged that only KP Sullivan

       Builders breached the contract. Glass filed a lien and asserted: “After deducting

       such credits and offsets for the Claimants [sic] work and material, the sum of

       $13,500.00 dollars together with 10% per annum is due and owing to the

       Claimant from this date, March 22, 2016.” Appellant’s Appendix Volume II at

       38. The court set the amount of surety for written undertaking to release the

       lien in the amount of $15,000, KP Sullivan Builders filed a written undertaking

       with surety it obtained through Western Surety Company, and the court

       accepted the written undertaking with surety and released the lien. Under these

       circumstances, we cannot say that the trial court erred in granting the motion to

       dismiss CPG Partners, LP, JDR Fixtures, Inc., and Under Armour.


                                                         III.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 14 of 21
[30]   The next issue is whether the trial court abused its discretion when it denied

       Glass’s motion for default judgment. Glass asserts that he drove from

       Indianapolis to Columbus to attend the September 22, 2016 pretrial hearing and

       that neither the Defendants nor their counsel appeared or moved the trial court

       for a timely continuance.


[31]   The grant or denial of a default judgment lies within the sound discretion of the

       trial court. Jackson v. City of Jeffersonville, 771 N.E.2d 703, 705 (Ind. Ct. App.

       2002), trans. denied. On appeal, we will reverse only if the trial court’s decision

       is clearly against the logic and effect of the facts and circumstances before it. Id.

       However, Indiana courts do not generally favor default judgments. Id. Thus,

       any doubt as to the propriety of a default judgment is to be resolved in favor of

       the nonmoving party. Id.


[32]   The record shows that, while the trial court had scheduled a final pre-trial

       conference for September 22, 2016, Glass filed a Motion for Extension of Time

       on September 15, 2016, which the court addressed in a September 19, 2016

       order.     Further, Defendants filed a motion for a continuance on September 19,

       2016. In their verified response in opposition to Glass’s motion for default

       judgment, the Defendants asserted that their counsel contacted the court on

       September 22, 2016, and was informed that they need not appear that

       afternoon. Based upon the record, we cannot say the court abused its discretion

       in denying Glass’s motion for default judgment.


                                                         IV.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 15 of 21
[33]   The fourth issue is whether the trial court erred or abused its discretion in

       denying Glass’s February 5, 2018 motion for change of judge. Ind. Trial Rule

       76 provides in part:


               (B) In civil actions, where a change may be taken from the judge,
               such change shall be granted upon the filing of an unverified
               application or motion without specifically stating the ground
               therefor by a party or his attorney. Provided, however, a party
               shall be entitled to only one [1] change from the judge. . . .

               (C) In any action except criminal no change of judge or change
               of venue from the county shall be granted except within the time
               herein provided. Any such application for change of judge (or
               change of venue) shall be filed not later than ten [10] days after
               the issues are first closed on the merits. Except . . . .


[34]   Glass argues that Judge Worton “abused [his] discretion by reinstating himself

       on said cause because [Glass] believed that he did not have an impartial

       decision maker in this cause of action.” Appellant’s Brief at 18. However,

       Glass does not develop an argument challenging the March 2, 2018 Notice

       Declining Appointment. That Notice asserted that a change of venue was not

       appropriate under Trial Rule 76(C), and the court’s March 5, 2018 order denied

       the change of venue based upon the failure to request a change within the

       required time limits as set forth in Trial Rule 76(C). We conclude that Glass

       has waived this issue.


                                                         V.


[35]   The final issue is whether the trial court abused its discretion in dismissing

       Glass’s claim under Ind. Trial Rule 41(E). Glass argues that KP Sullivan
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 16 of 21
       Builders did not file a motion to dismiss for failure to prosecute until April 17,

       2018, twenty-six days after the trial court set the matter for a pretrial hearing for

       August 20, 2018. He asserts that “[t]he only thing [he] could do at the time

       [was] wait until the August 20, pretrial hearing.” Appellant’s Brief at 20. He

       asserts that his case did not lay dormant for sixty days as required by Trial Rule

       41(E). The Defendants argue that Glass had filed numerous motions and

       requests for change of judge in an apparent attempt to continuously relitigate

       the dismissal of the lien defendants over the past two years and ultimately

       objected to prosecuting his case further under the presiding judge.


[36]   Ind. Trial Rule 41(E) provides in part:


               Whenever there has been a failure to comply with these rules or
               when no action has been taken in a civil case for a period of sixty
               [60] days, the court, on motion of a party or on its own motion
               shall order a hearing for the purpose of dismissing such case.
               The court shall enter an order of dismissal at plaintiff’s costs if
               the plaintiff shall not show sufficient cause at or before such
               hearing. Dismissal may be withheld or reinstatement of
               dismissal may be made subject to the condition that the plaintiff
               comply with these rules and diligently prosecute the action and
               upon such terms that the court in its discretion determines to be
               necessary to assure such diligent prosecution.


[37]   We will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in the

       event of a clear abuse of discretion. Belcaster v. Miller, 785 N.E.2d 1164, 1167

       (Ind. Ct. App. 2003), trans. denied. An abuse of discretion occurs if the decision

       of the trial court is against the logic and effect of the facts and circumstances



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 17 of 21
       before it. Id. We will affirm if there is any evidence that supports the trial

       court’s decision. Id.


[38]   The purpose of Trial Rule 41(E) is “to ensure that plaintiffs will diligently

       pursue their claims” and to provide “an enforcement mechanism whereby a

       defendant, or the court, can force a recalcitrant plaintiff to push his case to

       resolution.” Id. (quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind. Ct. App.

       1993), reh’g denied). “The burden of moving the litigation is upon the plaintiff,

       not the court. It is not the duty of the trial court to contact counsel and urge or

       require him to go to trial, even though it would be within the court’s power to

       do so.” Id. (citing Benton, 622 N.E.2d at 1006 (quotation omitted)). “Courts

       cannot be asked to carry cases on their dockets indefinitely and the rights of the

       adverse party should also be considered. [The defendant] should not be left

       with a lawsuit hanging over his head indefinitely.” Id. (citing Hill v. Duckworth,

       679 N.E.2d 938, 939-940 (Ind. Ct. App. 1997) (quotation omitted)).


[39]   We generally balance several factors when determining whether a trial court

       abused its discretion in dismissing a case for failure to prosecute. Office

       Environments, Inc. v. Lake States Ins. Co., 833 N.E.2d 489, 494 (Ind. Ct. App.

       2005); Belcaster, 785 N.E.2d at 1167. These factors include: (1) the length of the

       delay; (2) the reason for the delay; (3) the degree of the plaintiff’s personal

       responsibility; (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

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 18 of 21
       than dismissal which fulfill the purposes of the rules 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. Belcaster, 785 N.E.2d at

       1167 (citing Lee v. Friedman, 637 N.E.2d 1318, 1320 (Ind. Ct. App.

       1994)). “The weight any particular factor has in a particular case depends on

       the facts of that case.” Id. (quoting Lee, 637 N.E.2d at 1320). “However, 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.” Id. (citing Lee, 637 N.E.2d at 1320). Although Indiana does not

       require trial courts to impose lesser sanctions before applying the ultimate

       sanctions of default judgment or dismissal, we view dismissals with disfavor,

       and dismissals are considered extreme remedies that should be granted only

       under limited circumstances. Turner v. Franklin Cnty. Four Wheelers Inc., 889

       N.E.2d 903, 905 (Ind. Ct. App. 2008).


[40]   The record reveals that, following the trial court’s October 20, 2016 order

       granting the motion to dismiss filed by CPG Partners, LP, JDR Fixtures, Inc.,

       and Under Armour, Glass filed a motion for change of judge on October 28,

       2016, alleging that he believed that the trial court abused its discretion by

       granting the motion to dismiss the three defendants and by denying his motion

       for default judgment. After the court denied his motion on January 10, 2017,

       Glass filed a January 20, 2017 Motion to Hold the Cause in Abeyance until the

       Indiana Supreme Court Rules on the Petition for Writ of Mandamus.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019   Page 19 of 21
However, the record indicates that Glass did not file his Verified Petition for

Writ of Mandamus and Prohibition until months later on April 14, 2017. In his

petition, Glass requested the assignment of a special judge and asserted that the

trial court had erroneously granted the dismissal of CPG Partners, LP. The

Indiana Supreme Court dismissed Glass’s petition of writ of mandamus and

prohibition on April 19, 2017. Glass filed a motion to set aside judgment

pursuant to Trial Rule 60 on December 15, 2017, and argued that the motion to

dismiss filed by CPG Partners, LP, JDR Fixtures, Inc., and Under Armour

misled the court into believing that they were not parties to the mechanic’s lien.

On February 5, 2018, Glass filed another motion for change of judge pursuant

to Ind. Trial Rule 76(B) and asserted that he believed Judge Worton was

“showing prejudice and bias pursuant to his ruling; as a result, if Plaintiff

wins[,] a trial would have no effect on the outcome; therefore, a jury trial would

be a formality.” Appellant’s Appendix Volume II at 179. The court ultimately

denied Glass’s motion for change of judge on March 5, 2018. Eleven days

later, Glass filed a Motion Objecting to Setting Jury Trial or Any Other Trial

Setting in which he objected to any jury trial date or any other hearing date

being scheduled until a special judge is selected. We also note that the trial

court granted multiple requests for attorney fees filed by the Defendants. 2



2
 In part, the record reveals that the trial court awarded attorney fees and costs to CPG Partners, LP, JDR
Fixtures, Inc., and Under Armour in defending Glass’s complaint; $8,006.50 in attorney fees and costs to KP
Sullivan Builders incurred in defending Glass’s complaint; and $5,957 in attorney fees and costs to KP
Sullivan Builders incurred in defending Glass’s motion to hold the cause in abeyance. The court awarded
these attorney fees pursuant to Ind. Code § 34-52-1-1, which provides that the court may award attorney fees
as part of the cost to the prevailing party if the court finds that either party brought the action or defense on a
claim or defense that is frivolous, unreasonable or groundless; continued to litigate the action or defense after

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019                    Page 20 of 21
       Under the circumstances, we cannot say that the trial court abused its discretion

       when it dismissed Glass’s complaint. See Estate of Mills-McGoffney v. Modesitt, 78

       N.E.3d 700, 707 (Ind. Ct. App. 2017) (concluding that plaintiff had failed to

       establish good cause that her complaint should be reinstated following a

       dismissal under Trial Rule 41(E) for failure to prosecute where she informed the

       trial court that she refused to attend any additional proceedings so long as the

       judge continued to preside over the matter).


                                                       Conclusion

[41]   For the foregoing reasons, we affirm the trial court’s dismissal of Glass’s

       complaint.


[42]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or litigated the action in
       bad faith.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2274 | February 22, 2019                 Page 21 of 21
