                                                                                   FILED
                                                                             Apr 17 2019, 8:45 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT
      Charlie W. Gordon
      Lloyd & McDaniel, PLC
      Louisville, Kentucky


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Bank of America, N.A.,                                      April 17, 2019
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  18A-CC-1087
              v.                                                  Appeal from the Lake Superior
                                                                  Court
      Kimberly A. Congress-Jones,                                 The Honorable Calvin D.
      Appellee-Defendant.                                         Hawkins, Judge
                                                                  Trial Court Cause No.
                                                                  45D02-1704-CC-212



      Darden, Senior Judge.


                                       Statement of the Case
[1]   Bank of America, N.A. (“Bank”), appeals the trial court’s grant of Kimberly

      Congress-Jones’ (“Jones”) motion to dismiss for failure to prosecute and the

      trial court’s denial of the Bank’s motion to set aside the dismissal order. We

      affirm.



      Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019                              Page 1 of 14
                                                      Issues
[2]   The Bank raises five issues, which we consolidate and restate as:


              I.       Whether the trial court erred in granting Jones’s motion to
                       dismiss for failure to prosecute.


              II.      Whether the trial court erred in denying the Bank’s motion
                       to set aside the dismissal.


                                Facts and Procedural History
[3]   This case began on April 17, 2017, when the Bank filed a civil complaint

      against Jones, via, its attorney, Gerald E. Bowman of the law firm of Blatt,

      Hasenmiller, Leibsker, & Moore, LLC (“Blatt Hasenmiller”) in Merrillville,

      Lake County, Indiana. The Bank alleged Jones owed it $19,354.54 in unpaid

      credit card debt. Jones hired an attorney, and on May 10, 2017, Jones, by

      counsel, filed an appearance and an answer to the Bank’s complaint. The Bank

      has failed to provide us with a copy of the answer. The Bank took no further

      action in the court in 2017 to move the case forward to a resolution.


[4]   However, on September 22, 2017, Jones served discovery requests, including

      requests for admissions, a request for production of documents, and

      interrogatories, upon the Bank. On September 28, 2017, the Bank, by an

      attorney named Thomas A. Burris of Blatt Hasenmiller, sent a letter to Jones’

      attorney. Burris has never entered an appearance in this case, nor had he taken

      any action heretofore. In the letter, the Bank acknowledged having received the



      Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019         Page 2 of 14
      discovery requests, but Burris asserted the Bank was “not obligated to respond

      due to improper service.” Appellant’s App. Vol. 2, p. 21.


[5]   Apparently, Jones disputed the Bank’s letter in response, and on November 5,

      2017, asserted her requests for admissions had been deemed admitted due to the

      Bank’s failure to timely respond. Nevertheless, Jones stated she would email

      copies of her discovery requests to the Bank again and requested the Bank’s

      responses on or before November 13, 2017. She asserted she would move for

      sanctions if the Bank did not provide a timely response.


[6]   The law firm of Lloyd & McDaniel, PLC, which presently represents the Bank

      in this matter, later represented to the trial court that Blatt Hasenmiller ceased

      to operate at some point “in the later [sic] half of 2017.” Id. at 12. However,

      there is no evidence in the record before this Court to support this assertion, nor

      is there evidence that attorney Gerald Bowman or another attorney from Blatt

      Hasenmiller moved the trial court to withdraw from the case or notified Jones

      of its non-representation or that it was dissolving. Apparently, sometime in

      December of 2017, the Bank hired Lloyd & McDaniel to represent it in some

      capacity. However, no attorney from Lloyd & McDaniel filed an appearance

      with the trial court in this case indicating said representation.


[7]   On or about December 21, 2017, it appears that someone from Lloyd &

      McDaniel sent an unsigned form letter to Jones’ attorney. The letter did not

      purport to be from any specific person or attorney and did not reference the

      instant pending lawsuit. Rather, the letter stated the following:


      Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019        Page 3 of 14
        We believe you are representing Kimberly A. Congress-Jones in
        regards to the debt owed to Bank of America. If we are mistaken
        in this regard, and you are not acting as an attorney for Kimberly
        A. Congress-Jones, please advise us of that immediately. If we
        do not hear from you within 30 days, we will assume that you do
        not represent Kimberly A. Congress-Jones.


        Bank of America referred your client’s account to this firm for
        collection. We have taken over this file from Blatt, Hasenmiller,
        Leibsker & Moore LLC, who previously handled this account on
        behalf of Bank of America. If your client made payment
        arrangements with the prior servicer, please contact our office at
        your earliest convenience to discuss this matter. All future
        payments should be made to our office. As of the date of this
        letter, the amount of the debt your client owes on his/her
        account is $19,354.54. Payment may be made by check, payable
        to Lloyd & McDaniel and directed to use at [mailing address]. If
        your client chooses to do so, your client may make a payment
        online by visiting our website at [web address] at his/her
        convenience. Please contact our office should you wish to
        discuss payment arrangements on your client’s account. You can
        reach us on our toll-free number of [telephone number]. When
        contacting our office by phone or letter, please refer to our file
        number [number].


        Unless you, or your client, within thirty (30) days after receipt of
        this notice, dispute the validity of this debt, or any portion
        thereof, we will assume this debt is valid. If you or your client
        notifies us in writing within the thirty-day period that the debt, or
        any portion thereof, is disputed, we will obtain verification of the
        debt or a copy of the judgment against your client and a copy of
        such verification or judgment will be mailed to you by us. Upon
        your or your client’s written request within the same thirty-day
        period, we will provide you with the name and address of the
        original creditor, if different from the current creditor.


Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019          Page 4 of 14
               This communication is from a debt collector. This is an attempt
               to collect a debt and any information obtained will be used for
               that purpose.


               Yours truly,


               LLOYD & McDANIEL, PLC


       Id. at 20. Sometime later in 2018, the Bank informed the trial court that the

       form letter was “an initial demand letter” to Jones. Id. at 12.


[8]    In the meanwhile, on December 29, 2017, Jones filed a “Motion to Dismiss for

       Failure to Prosecute and as Discovery Sanction and to Compel Responses.” Id.

       at 22. Among other relief sought, Jones asked the trial court to dismiss the

       Bank’s complaint. She served the motion upon attorney Bowman of Blatt

       Hasemiller, having not received official notification that the firm had dissolved

       or was no longer in operation. Jones did not send a copy of the motion to the

       law firm of Lloyd & McDaniel.


[9]    On January 3, 2018, the trial court issued an order scheduling a hearing for

       February 16, 2018. The trial court stated in the order, “Should Plaintiff fail to

       show sufficient cause why this matter should not be dismissed, this action will

       be dismissed with prejudice.” Id. at 10. The court order was sent to Jones and

       to the Bank, via attorney Gerald Bowman of Blatt Hasemiller.


[10]   On February 16, 2018, Jones appeared for the hearing, but the Bank did not.

       The Bank has not supplied this Court with a transcript of the hearing that took


       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019        Page 5 of 14
       place on February 16, 2018. At the conclusion of the hearing, the trial court

       issued an order stating the following: “The Court, being duly advised in the

       premises, now finds and orders that Defendant, KIMBERLY A. CONGRESS-

       JONES’, Motion to Dismiss is hereby granted. This cause is ordered dismissed

       with prejudice.” Id. at 8.


[11]   On February 20, 2018, attorney Katie Carbone of Lloyd & McDaniel filed an

       appearance and notice of substitution of counsel on behalf of the Bank. On

       March 2, 2018, the Bank filed a “motion to set aside order of dismissal and/or

       motion for clarification and/or withdrawal of admissions and extension of time

       and new hearing date.” Id. at 12. On March 12, 2018, Jones filed a response in

       opposition to the Bank’s motion. The Bank has not included Jones’s response

       in the record to this Court.


[12]   The trial court scheduled a hearing for April 20, 2018. On March 28, 2018, the

       Bank, via attorneys, from Lloyd & McDaniel, provided late responses to Jones’

       requests for admissions. The Bank filed with the trial court its notice of

       response to Jones’ requests for admissions on April 2, 2018.


[13]   On April 19, 2018, Jones’ attorney, Duran Keller, filed a motion to withdraw

       from the case. On April 20, 2018, Jones appeared pro se for the hearing as

       scheduled. The Bank has not supplied this Court with a transcript of the record

       of the hearing. At the time of the scheduled hearing, the trial court had not

       acted on attorney Keller’s motion to withdraw.




       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019       Page 6 of 14
[14]   At the conclusion of the hearing, on April 20, 2018, the trial court issued an

       order stating the following: “The Court, being duly advised, now finds and

       orders that Plaintiff, BANK OF AMERICA, N.A.’s, Motion to Set Aside

       Order of Dismissal is hereby denied. The Court’s Order of February 16, 2018,

       remains in full force and effect with prejudice.” Id. at 9. This appeal followed.


                                     Discussion and Decision
                               I. Rule 41 and Standard of Review
[15]   Dismissals for failure to prosecute, and reinstatements after dismissal, are

       governed by Indiana Trial Rule 41, which provides, in relevant part:


               (E) Failure to Prosecute Civil Actions or Comply with Rules.
               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.


               (F) Reinstatement Following Dismissal. For good cause shown
               and within a reasonable time the court may set aside a dismissal
               without prejudice. A dismissal with prejudice may be set aside
               by the court for the grounds and in accordance with the
               provisions of Rule 60(B).


[16]   As a panel of this Court has explained:
       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019         Page 7 of 14
               The purpose of Rule 41(E) is to ensure that plaintiffs will
               diligently pursue their claims. The rule provides an enforcement
               mechanism whereby a defendant, or the court, can force a
               recalcitrant plaintiff to push his case to resolution. 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. Courts cannot be
               asked to carry cases on their dockets indefinitely and the rights of
               the adverse party should also be considered. He should not be
               left with a lawsuit hanging over his head indefinitely.


       Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct. App. 2004) (quotations and citations

       omitted).


[17]   The trial court did not issue findings of fact or conclusions thereon in the course

       of dismissing the case or denying the Bank’s motion to set aside the dismissal.

       In general, we will reverse a Trial Rule 41(E) dismissal for failure to prosecute

       only in the event of a clear abuse of discretion, which occurs if the decision of

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

       before it. Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans.

       denied. Similarly, a trial court’s ruling on a motion to reinstate an involuntary

       dismissal is generally reviewed for an abuse of discretion. Cloyd v. Pasternak,

       791 N.E.2d 757, 758 (Ind. Ct. App. 2003). The judgment below is presumed to

       be valid, and an appellant bears the burden of proving otherwise. Johnson v.

       Citizen’s State Bank, 57 Ind. App. 348, 352, 107 N.E. 35, 37 (Ind. Ct. App.

       1914). Consequently, the judgment will be affirmed if there is any evidence to

       support the trial court’s decision. Benton v. Moore, 622 N.E.2d 1002, 1005 (Ind.



       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019         Page 8 of 14
       Ct. App. 1993). Further, it is an appellant’s duty to provide an adequate record

       for review. Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).


[18]   In this case, Jones did not file an appellee’s brief. When appellees do not

       submit an answer brief, we need not undertake the burden of developing an

       argument on their behalf. Howard v. Daugherty, 915 N.E.2d 998, 999 (Ind. Ct.

       App. 2009). Rather, we will reverse if the appellant’s brief presents a case of

       prima facie error. Id. Prima facie error in this context is error at first sight, on

       first appearance, or on the face of it. Id. at 1000 (quotation omitted).

       Therefore, if an appellant does not meet this burden, we will affirm. Id.


                             II. Dismissal for Failure to Prosecute
[19]   Courts of review generally balance several factors when determining whether a

       trial court erred in dismissing a case for failure to prosecute. 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 personal responsibility on the part of the

       plaintiff; (4) the degree to which the plaintiff will be charged for the acts of the

       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 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. Id.


       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019          Page 9 of 14
[20]   The weight any particular factor has in a case depends upon the facts of that

       case. Id. Dismissals are generally viewed with disfavor and are considered

       extreme remedies that should be granted only under limited circumstances, but

       the court need not impose a sanction less severe than dismissal where the record

       of dilatory conduct is clear. United Bhd. of Carpenters and Joiners of Am., Local

       Union No. 2371 v. Merch. Equip. Grp., 963 N.E.2d 602, 607 (Ind. Ct. App. 2012).


[21]   In this case, the Bank filed suit on April 17, 2017, and filed nothing else on the

       docket until after the trial court issued its dismissal order on February 16, 2018,

       a lengthy delay of ten months. Further, there is no evidence the Bank took any

       informal steps to move the case forward. The Bank, through Blatt Hasenmiller

       attorney Thomas A. Burris, sent Jones a letter on September 28, 2017 stating

       the Bank intended to ignore or not comply with Jones’ discovery requests due

       to alleged defects in service. It appears the Bank did not issue any discovery

       requests to Jones.


[22]   Turning to the reason for the delay, it is unclear why attorney Gerald Bowman

       of the law firm Blatt Hasenmiller, located in Merrillville, Lake County, Indiana,

       took no action on the case for ten months. That law firm may have dissolved at

       some point in late 2017 but there is insufficient evidence in the record to

       support it, as noted. At some point, the Bank hired Lloyd & McDaniel to

       represent it in some capacity, but there is insufficient evidence in the record to

       demonstrate: (1) when, if ever, Blatt Hasenmiller dissolved and/or withdrew

       representation of the Bank in this case; (2) when and how Blatt Hasenmiller

       informed the Bank and Jones of its nonrepresentation in the case; and (3) when

       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019         Page 10 of 14
       the Bank hired Lloyd & McDaniel to represent it in the instant pending lawsuit;

       and (4) why an attorney from Lloyd & McDaniel delayed entering an

       appearance in this pending lawsuit until February of 2018. None of the delay

       can be attributed to Jones or reflected on her.


[23]   The Bank argues the December 21, 2017 letter from Lloyd & McDaniel to

       Jones’ attorney was proof “that Lloyd was now representing [the Bank] and

       intend[ed] to proceed.” Appellant’s Br. p. 6. We disagree. The December 21,

       2017 unsigned form letter did not reference the pending lawsuit at all, much less

       express a willingness to move forward with it. Instead, the letter merely

       discussed Jones’ debt in general terms and indicated the Bank might seek a

       judgment against her if payment was not forthcoming. The Bank later

       characterized the letter as “an initial demand letter.” Appellant’s App. Vol. 2,

       p. 12. In addition, the Bank did not follow up the form letter with any other

       action, such as making personal contact with Jones’ counsel or having one of its

       attorneys file an appearance in this matter with the trial court. It is

       inconceivable that another law firm assuming representation for the Bank

       would wait several months before entering an appearance in this pending

       lawsuit.


[24]   Further, it is unclear how much of the responsibility for the delay rests directly

       with the Bank and the degree to which the Bank will be charged for the acts of

       its attorneys. We do not know from the record when the Bank learned that

       Blatt Hasenmiller may have dissolved and how much time elapsed before the

       Bank hired Lloyd & McDaniel as replacement counsel. The record also fails to

       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019        Page 11 of 14
       explain what the Bank told Lloyd & McDaniel about the status of the instant

       pending lawsuit and what steps needed to be taken.


[25]   The amount of prejudice to Jones appears to be high. In comparison to the

       Bank, Jones appears to be unable to afford to hire another attorney to defend

       her in this lengthy lawsuit. Her initial attorney had already sought to withdraw

       during trial court proceedings, and Jones was forced to appear pro se for the

       hearing on the Bank’s motion to set aside the dismissal.


[26]   In addition, the ten-month delay provides evidence that the Bank has a lengthy

       history of having deliberately proceeded in a dilatory fashion. Now, the Bank

       asserts that, with its current attorneys, it is willing to move forward with the

       case and that it would be desirable to proceed with the case on the merits.

       Nevertheless, the Bank was simply not diligent in this action beforehand and

       was stirred into action only after the case was dismissed with prejudice.

       Apparently, the trial court believed that the damage had already been done to

       Jones by the time the trial court dismissed the Bank’s complaint.


[27]   The Bank argues that Jones acted unfairly by not serving her motion to dismiss

       on Lloyd & McDaniel. We cannot agree. Although Jones was aware that

       Lloyd & McDaniel was involved in collecting a debt, no one from that firm had

       entered an appearance in the case or followed up with discussion of the instant

       case after having had more than sufficient time to do so. Further, no one from

       the Bank’s prior firm, Blatt Hasenmiller, had directly informed Jones or the trial

       court that it had ceased representing the Bank, and neither attorney Gerald


       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019        Page 12 of 14
       Bowman nor anyone else from the firm had filed a motion to withdraw from

       the case.


[28]   Weighing the factors set forth in Belcaster, we conclude that the trial court did

       not abuse its discretion, and it had ample reason to grant Jones’ motion to

       dismiss for failure to prosecute. The Bank has failed to demonstrate prima facie

       error.


                               III. Motion to Set Aside Dismissal
[29]   The Bank claims the trial court should have set aside the dismissal. “A

       dismissal with prejudice may be set aside by the court for the grounds and in

       accordance with the provisions of Rule 60(B).” Ind. Trial Rule 41(F). A

       motion made under Trial Rule 60(B) is addressed to the equitable discretion of

       the trial court, circumscribed by the eight categories listed in Rule 60(B). Lee,

       811 N.E.2d at 887.


[30]   The Bank does not specify which category of Trial Rule 60(B) supports its claim

       to set aside the dismissal order. Instead, the Bank argues Jones’ requests for

       admissions and other discovery requests were unrelated to the facts of the case

       and served as an improper “gotcha device.” Appellant’s Br. p. 11. Specifically,

       the Bank argues this is an action on an “account stated,” Appellant’s Br. p. 11,

       and that Jones’ requests for admissions were instead directed to a breach of

       contract action. The Bank further claims, citing Auffenberg v. Bd. of Trustees of

       Columbus Reg’l Hosp., 646 N.E.2d 328 (Ind. Ct. App. 1995), that Jones did not



       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019        Page 13 of 14
       object to the unpaid balance prior to the suit being filed, which gives rise to an

       inference that the account balance is correct.


[31]   The Bank’s argument is based upon facts not contained in the record. We do

       not know if Jones objected to the Bank’s demands for payment prior to filing

       suit. Further, because the Bank has not included Jones’ answer in the record,

       we do not know whether Jones denied or disputed the account balance after the

       suit was filed. Based on this incomplete record, it cannot be determined

       whether Jones’ discovery requests were improper.


[32]   In addition, the Bank cites to no rule demonstrating that Jones was barred from

       serving her discovery requests upon the Bank, and its attorneys had ample

       opportunity to object to the timing or nature of the requests when they were

       served. The Bank also could have requested an extension of time to respond

       while it switched law firms. In any event, the Bank’s choice to ignore Jones’

       discovery requests was merely one factor in the Bank’s inactivity in this case.

       The Bank has failed to demonstrate prima facie error in the denial of its motion

       to set aside the dismissal order.


                                                  Conclusion
[33]   For the reasons stated above, we affirm the judgment of the trial court.


[34]   Affirmed.


[35]   Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019       Page 14 of 14
