      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
      this Memorandum Decision shall not be                            Mar 24 2020, 7:46 am

      regarded as precedent or cited before any                             CLERK
                                                                        Indiana Supreme Court
      court except for the purpose of establishing                         Court of Appeals
                                                                             and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Dan J. May                                               Robert J. Nice
      Kokomo, Indiana                                          Tara L. Cragen
                                                               Hayleigh J. Neumann
                                                               The Nice Law Firm, LLP
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Scott A. Pitcher,                                        March 24, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-PL-2175
              v.                                               Appeal from the Howard Circuit
      Eugeurtos B. Zimmerman, Jr.,                             Court

      Appellee-Plaintiff.                                      The Honorable James K.
                                                               Muehlhausen, Special Judge
                                                               Trial Court Cause No.
                                                               34C01-1706-PL-531



      Mathias, Judge.


[1]   Scott Pitcher (“Pitcher”) appeals from an order of the Howard Circuit Court

      awarding possession of a backhoe, damages for the loss of use thereof, and




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020            Page 1 of 20
      attorney fees in favor of Eugeurtos Zimmerman, Jr. (“Junior”). Pitcher’s

      arguments on appeal can be consolidated as:


        I.    Whether, under a general judgment standard of review, the trial court’s

              judgment was in error;


       II.    Whether there was any other basis on which Pitcher’s motion to correct

              errors should have been granted; and,


      III.    Whether the matter of attorney fees is moot.


[2]   We affirm.


                                 Facts and Procedural History
[3]   This litigation involves the disputed ownership of two pieces of construction

      equipment: a Lull forklift (“the forklift”) and a CASE 580-M backhoe (“the

      backhoe”). The forklift and backhoe were among Junior’s construction

      business’s inventory that was on the brink of repossession and sale by

      Community First Bank, which held a secured interest in Junior’s equipment. To

      avoid the forced sale, Junior sought financial assistance from his brother, John

      Zimmerman. Community First agreed to assign ownership of the equipment to

      John upon John’s payment of $120,000 to the bank. John took out a $100,000

      loan from Chase Bank to do so, and Junior provided the remaining $20,000.

      John then leased the equipment to Junior for $2,000 per month, which allowed

      Junior to continue operating his business for a time. This occurred in early

      2012.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 2 of 20
[4]   In July 2013, Junior could no longer make payments to his brother and decided

      to find a buyer for the equipment. Junior contacted Pitcher d/b/a Fortune

      Companies as a potential buyer because Pitcher was also in the construction

      business. Junior and Pitcher had had prior business dealings. Pitcher agreed to

      help, and with John’s approval, the men inventoried and set prices for the

      equipment in Junior’s possession. The understanding between John, Junior,

      and Pitcher was that Pitcher would try to select equipment for purchase whose

      total value approximated the amount that John still owed to Chase Bank—at

      the time, about $75,000. Accordingly, Pitcher marked several items on the

      inventory list that he wished to purchase with his initials, “SP.” Pitcher agreed

      to pay John $2,000 per month until the equipment was paid for in full.


[5]   The forklift and the backhoe were subsequently delivered by an associate of

      Junior’s to a Fortune Companies worksite in Lafayette, Indiana. Pitcher made

      regular, monthly payments to John, and by January 2017, John had repaid his

      Chase debt in full, and Pitcher had fulfilled his end of the deal. When John

      received the last of Pitcher’s payments, he created a bill of sale transferring

      ownership of the equipment to Pitcher. The bill of sale did not include the

      forklift or the backhoe, and Pitcher did not alert John to the fact that the items

      were omitted from the bill of sale.


[6]   The facts up to this point are undisputed. On June 6, 2017, Junior filed a

      complaint in the Howard Circuit Court seeking an order granting him

      immediate possession of the forklift and the backhoe. According to Junior,

      there was an oral lease agreement between himself and Pitcher in addition to



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 3 of 20
      the purchase agreement between John and Pitcher. The lease agreement

      allegedly provided that Pitcher would pay Junior $2,000 per month for the use

      of the forklift and the backhoe on construction projects for which Pitcher’s

      company was a subcontractor. Junior alleged that Pitcher breached the oral

      agreement by failing to make monthly lease payments and refusing to return the

      equipment. Junior’s complaint sought relief based on breach of contract and

      posited the alternative theories of promissory estoppel, unjust enrichment,

      conversion, offense against property, and replevin. Junior subsequently filed a

      request for hearing.


[7]   Pitcher responded on September 29, 2017, with an Indiana Trial Rule 12(B)(6)

      motion to dismiss for failure to join a party in interest, which Pitcher alleged

      was John, as the owner of the forklift and the backhoe, in the event Pitcher

      himself was not the owner. The trial court held a hearing on November 3, 2017,

      and heard testimony from Pitcher, Junior, Junior’s business associate, and

      John. The trial court denied Pitcher’s motion to dismiss, determining that John

      was not a party in interest. As to the forklift, the trial court denied Junior’s

      claim for immediate possession thereof. The court scheduled further

      proceedings for February 2018 to determine which party was entitled to

      possession of the backhoe.


[8]   Pitcher and his counsel failed to appear at the February hearing. The trial court

      continued the hearing to April 6, 2018, and awarded $1,000 in attorney fees to

      Junior. On April 24, Pitcher filed his answer to Junior’s complaint with

      affirmative defenses and a motion for judgment on the pleadings. Junior



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 4 of 20
       responded with a motion to strike Pitcher’s motion for judgment on the

       pleadings and counterclaims.


[9]    In May, the trial court scheduled a hearing for June 27, 2018, to consider all

       remaining matters and pending motions. At the June hearing, the trial court

       granted Junior’s motion to strike in part and declined to rule on Pitcher’s

       motion for judgment on the pleadings. The trial court then granted Junior’s

       motion for immediate possession as to the backhoe and, because Pitcher had

       sold the backhoe, heard testimony regarding its fair market and rental value to

       determine what damages Pitcher owed Junior. The trial court’s final order was

       entered on June 27, 2018, and read in operative part:


               Court finds Plaintiff to be the owner of the 580M backhoe and
               that Plaintiff is entitled to final possession thereof.


               Court finds Defendant sold the 580M backhoe and that Plaintiff
               shall recover $17,000 for the loss of the backhoe plus $6,500 for
               the loss of use for a total judgment of $23,500. Plaintiff is also
               awarded $340 attorney fees.


               Defendant is found to be the owner of the Lull [forklift] and
               entitled to final possession thereof.


       Appellant’s App. p. 8.


[10]   Pitcher’s motion to correct errors was denied after hearing. Pitcher filed a notice

       of appeal on September 10, 2018, and also sought a stay of further collection

       proceedings pending appeal. The trial court granted the stay on October 17,

       2018. This appeal followed.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 5 of 20
              I. The trial court’s order can be sustained under our general judgment
                                          standard of review.

[11]   Pitcher appeals from the denial of his motion to correct error. We generally

       review the denial of a motion to correct error for abuse of discretion. Kornelik v.

       Mittal Steel USA, Inc., 952 N.E.2d 320, 324 (Ind. Ct. App. 2011), trans. denied.

       An abuse of discretion occurs when the trial court’s decision is against the logic

       and effect of the facts and circumstances before the court, or if the court has

       misinterpreted the law. Hawkins v. Cannon, 826 N.E.2d 658, 661 (Ind. Ct. App.

       2005), trans. denied. Questions of law are reviewed de novo, and we owe no

       deference to the trial court’s legal conclusions. In re Guardianship of Phillips, 926

       N.E.2d 1103, 1107 (Ind. Ct. App. 2010).


[12]   Neither party requested special findings and conclusions under Trial Rule

       52(A), and the trial court did not designate any portion of its order as special

       findings and conclusions. In the absence of special findings, we apply a general

       judgment standard of review. Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240

       (Ind. 1997). Under this standard, we presume that the court correctly followed

       the law, and we do not reweigh the evidence or reassess the credibility of

       witnesses. Id. We will affirm if the judgment is “sustainable upon any theory

       consistent with the evidence.” Id. In determining if the judgment is against the

       facts and circumstances before the court, we “may look both to other findings

       and beyond the findings to the evidence of record.” C.B. v. B.W., 985 N.E.2d

       340, 344 (Ind. Ct. App. 2013), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 6 of 20
            II. The trial court did not err in determining that the parties had no oral
                                            lease agreement.

[13]   At least one of Pitcher’s arguments on appeal alleges error in the trial court’s

       consideration of whether an oral lease agreement for the forklift and the

       backhoe existed between Junior and Pitcher. See Appellant’s Br. at 13. Junior’s

       complaint sought immediate possession of the forklift and the backhoe based on

       breach of contract; he alleged that there was an oral agreement between him

       and Pitcher to lease the forklift and the backhoe. Pitcher’s position was that the

       forklift and the backhoe were included in the items Pitcher bought from John

       and that no oral lease agreement existed. Furthermore, Pitcher argued that such

       an agreement would violate the statute of frauds. The statute of frauds states in

       relevant part:


               A person may not bring any of the following actions unless the
               promise, contract, or agreement on which the action is based, or
               a memorandum or note describing the promise, contract, or
               agreement on which the action is based, is in writing and signed
               by the party against whom the action is brought or by the party’s
               authorized agent:


                                                       ***


               (5) An action involving any agreement that is not to be
               performed within one (1) year from the making of the agreement.


       Ind. Code § 32-21-1-1(b).


[14]   At the November 3, 2017, hearing, Junior maintained that Pitcher agreed to

       take possession of the forklift and the backhoe, collect rent for their use on a


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 7 of 20
       construction job, and remit “a couple [] thousand” dollars to Junior each

       month. Tr. p. 49. Junior admitted that there was no written formalization of the

       agreement and that he knew the construction job was expected to last “a year to

       two and a half years.” Id. John corroborated Junior’s position and testified that

       the $2,000 monthly payment Pitcher owed to him was “discussed as being

       separate from the rent that [Pitcher] might be able to obtain for Junior.” Tr. p.

       60. John gave conflicting testimony regarding whether he was present for such a

       discussion about leasing the forklift and the backhoe. Pitcher testified that he

       never agreed to pay Junior for the lease of any equipment, whether verbally or

       in writing, and furthermore that such an agreement violated the statute of

       frauds because it could not be completed within one year.


[15]   The trial court determined that the evidence presented did not establish the

       existence of an agreement that Pitcher would lease the forklift and the backhoe

       from Junior. Any request to disturb the trial court’s order based on alleged error

       having to do with the existence of an oral lease agreement is simply a request to

       reweigh the evidence and judge witness credibility, which we will not do. Perdue

       Farms, Inc., 683 N.E.2d at 240. And, even if the evidence did demonstrate a

       lease agreement had been reached, it failed to conform to the writing

       requirement and could not be enforced. Thus, the trial court did not err in

       determining that Junior was not entitled to possession of the forklift or the

       backhoe on his theory that Pitcher breached an oral agreement to lease the

       equipment from Junior.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 8 of 20
         III. The controlling evidence establishing who was entitled to possession was
                                         the inventory list.

[16]   Once the trial court determined that there was no oral lease agreement between

       the parties, the trial court divined that the primary question requiring resolution

       was whether the forklift or the backhoe, or both, were included in the sale of

       equipment from John to Pitcher. At the November 3 hearing, Pitcher produced

       Exhibit A, a handwritten inventory of equipment in Junior’s possession, created

       by Junior and Pitcher, from which Pitcher decided what equipment to

       purchase. See Appellant’s App. p. 57; Tr. p. 50. The document was crude but

       straightforward: it listed the equipment in Junior’s possession, the estimated

       value for each piece of equipment, and a demarcation next to each item

       indicating if Junior would sell the item or if Pitcher would purchase the item.

       Though Exhibit A was produced by Pitcher, Junior averred that “[t]his

       document produced by Mr. Pitcher’s counsel frankly may be the best

       corroborative evidence that we have[.]” Tr. p. 77. The trial court agreed, and

       thus the hearing proceeded with the common understanding that Exhibit A

       controlled as the best evidence of ownership because it was created close in time

       to the sale; both Junior and Pitcher participated in its creation; and there was no

       timely dispute as to its accuracy.


[17]   Regarding the forklift, Junior’s position was that Pitcher had not purchased it

       because the marking next to the forklift “doesn’t look like the same SPs you see

       throughout.” Tr. p. 77. Pitcher countered that the initials were his, and that he

       had purchased the forklift because it was “the most important piece to us in this




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 9 of 20
       package . . . the most vital piece . . , we use every single day.” Tr. pp. 71–72.

       The trial court found:


               [A]s to [whose] position on the [forklift] has more strength, I just
               believe the notation, which I believe to be an SP by the [forklift]
               on Exhibit [A] which was created July 19, 2013, is the most
               reliable evidence I have, and I’m going to find against you
               [Junior] on your quest for possession of the [forklift] based upon
               that.


       Tr. p. 85.


[18]   There was no error in the trial court’s denial of Junior’s request for immediate

       possession of the forklift based on this evidence, nor was there error in the trial

       court’s later order finding Pitcher as the rightful owner of the forklift.


[19]   Regarding which party was entitled to possession of the backhoe, the trial court

       again determined that Exhibit A, the handwritten equipment inventory,

       controlled. The inventory listed three backhoes for sale: a 580 Super K

       estimated at $10,000; a 580M estimated at $25,000; and a 580 Super M

       estimated at $35,000. See Appellant’s App. p. 57. Pitcher’s initials were noted

       next to only one of the backhoes: the 580 Super M. Junior claimed that he was

       entitled to immediate possession of the 580M, there being “no [marking] next

       to the 580-M at all,” and the trial court agreed. Tr. p. 77. The trial court stated

       at the end of the November 3 hearing that “the backhoe goes to Junior[.]” Tr. p.

       93. Pitcher did not object. Accordingly, Pitcher has waived for appellate review

       his claim that the trial court abused its discretion when it considered Exhibit A

       controlling evidence. See Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990)


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 10 of 20
       (stating preference for the general rule that waiver results if a timely objection to

       documents or exhibits is not raised at the trial court).


[20]   The parties returned to the trial court on June 27, 2018. Pitcher verified that the

       backhoe at issue was the 580M. Pitcher did not produce evidence that he had

       purchased the 580M backhoe, and the trial court reaffirmed that Exhibit A—on

       which Pitcher’s initials did not appear next to the 580M backhoe—was the best

       evidence. The trial court concluded that Junior was the rightful owner of the

       backhoe and entitled to possession thereof. For the same reasons we find that

       the trial court did not err in its disposition of the forklift, we find the trial court

       did not err in its disposition of the backhoe.


[21]   Pitcher admitted that around January 2017, he sold the backhoe at issue to a

       third party for approximately $17,000. Accordingly, the trial court found that

       Junior was owed $17,000 in damages based on the sale of the backhoe, as well

       as $6,500 in damages based on loss of use of the backhoe for twenty-four

       months, the total owed to Junior amounting to $23,500. The trial court did not

       err in determining that Pitcher owned the forklift, that Junior owned the

       backhoe, and that Junior was owed $23,500 based on the sale and loss of use of

       the backhoe.


[22]   While the trial court’s order did not address the specific allegations in Junior’s

       complaint, based on our review of the evidence before the trial court, we

       conclude that its judgment can be sustained under our general judgment

       standard of review. The trial court’s judgment was based on one document that




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 11 of 20
       both parties agreed was operative: the handwritten inventory of the equipment

       in Junior’s possession where Pitcher indicated which items he wished to

       purchase. The trial court credited the testimony of the parties that this was the

       extent of the sale agreement, and we may not reassess the credibility of

       witnesses on appeal. Thus, because there was consensus about the inventory

       list, we cannot say that the trial court’s decision declaring ownership based on

       what the inventory list revealed was contrary to law.


            IV. There was no other basis on which Pitcher’s motion to correct error
                                    should have been granted.

[23]   Pitcher also contends that the trial court’s denial of his motion to correct error

       was an abuse of discretion because the trial court’s original denial of his Trial

       Rule 12(B)(6) motion to dismiss for failure to name the real party in interest was

       incorrect. For the following reasons, the denial of Pitcher’s motion to dismiss

       was not error; even if it was error, the doctrine of invited error bars Pitcher from

       now prevailing on the argument.


[24]   Pitcher timely responded to Junior’s complaint with a Trial Rule 12(B)(6)

       motion to dismiss for failure to name the real party in interest, disputing that

       Junior could properly assert a claim to the equipment because the underlying

       purchase took place between Pitcher and John. Pitcher’s motion requested

       dismissal or, in the alternative, John’s joinder to the action as the real party in

       interest. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 12 of 20
[25]   Trial Rule 12 authorizes a party to present certain defenses; a motion to dismiss

       asserting Rule 12(B)(6) challenges the legal sufficiency of a complaint. See T.R.

       12(B)(6) (allowing as a defense asserted by motion the plaintiff’s “[f]ailure to

       state a claim upon which relief can be granted, which shall include failure to

       name the real party in interest under Rule 17”); Trail v. Boys and Girls Clubs of

       Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). Our supreme court has

       explained that 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). In ruling on such a motion to dismiss, “a court is required to take as true

       all allegations upon the face of the complaint and may only dismiss if the

       plaintiff would not be entitled to recover under any set of facts admissible under

       the allegations of the complaint.” Huffman v. Office of Envtl. Adjudication, 811

       N.E.2d 806, 814 (Ind. 2004). And in reviewing such motions, the trial court

       must draw all reasonable inferences in favor of the non-moving party. Id.


[26]   Here, the basis of Pitcher’s motion to dismiss was that John, not Junior, was

       the “true owner” of the ownership right that Junior sought to enforce.

       Appellant’s App. pp. 22–23. At the November 3 hearing, John was called as a

       witness, and the trial court heard argument on whether John was a real party in

       interest. Junior presented the equipment lease agreement between himself and

       John that was created at the time John purchased the interest in Junior’s

       equipment from Community First Bank. Tr. p. 58. John appeared at the initial

       hearing and testified, on direct and cross examination, about the effect of

       subsequent revision to the agreement:



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 13 of 20
        [Junior’s Counsel]: [T]he tail end of that document [Exhibit 4]
        reads, [‘T]he ownership of all other equipment owned by [John
        d/b/a] Gaging Concepts and covered by the lease agreement is
        transferred to [Junior.’] Why was that paragraph there?


                                                ***


        [John]: So, when I sold [] the equipment to Scott [Pitcher] then
        the . . . all of the other stuff I had no use for it, so I transferred all
        of that back to him [Junior]. There was other items on that list
        that Scott didn’t buy, and I had no use for it and it was at
        Junior’s disposable [sic], to do what he wanted with it.


        [Junior’s Counsel]: Did you basically give it to him?


        [John]: Well I only bought the equipment to help him [Junior] so
        I was basically I had no need for the equipment and if Scott
        hadn’t of [sic] stepped in and bought the equipment when that
        loan was paid off I would have transferred ownership, all of it
        back to Junior.


        [Junior’s Counsel]: Ok. And so we agree, you were paid off in
        full by Scott?


        [John]: I was paid off in full.


                                                ***


        [Pitcher’s Counsel]: Exhibit 4, same question. The date you
        created it.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 14 of 20
               [John]: I can’t tell you the date I created this one but I changed
               this when we, we revised the equipment lease when [Pitcher
               d/b/a] Fortune Companies bought the equipment.


               [Pitcher’s Counsel]: Back in ’13?


               [John]: That would have been, well it says here, ‘[B]y agreement
               of Gaging Concepts and [Junior d/b/a] C & Z Construction
               Management the lease agreement is cancelled as of [August 14,
               2013]’, and I believe that’s the date that Scott bought the
               equipment.


       Tr. pp. 58–59, 62.


[27]   From this testimony, the trial court concluded that the basis for Pitcher’s

       motion to dismiss—failure to join the real party in interest—was without merit.

       The trial court’s decision to deny Pitcher’s Rule 12(B)(6) motion to dismiss was

       not error.


[28]   Furthermore, Pitcher unequivocally agreed with Junior when Junior argued

       that John was not the real party in interest under Rule 17. A party is barred by

       the doctrine of invited error from taking advantage on appeal of an error that he

       invited. See Witte v. Mundy, 820 N.E.2d 128, 133–34 (Ind. 2005); Baxendale v.

       Raich, 878 N.E.2d 1252, 1254 n.2 (Ind. 2008) (party who advised trial court that

       special findings were unnecessary was estopped from arguing on appeal that

       trial court erred in not entering findings); Wright v. State, 828 N.E.2d 904, 907

       (Ind. 2005) (State precluded from arguing on appeal that trial court erred in




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 15 of 20
merging convictions where trial court did so on the State’s recommendation).

The following exchange occurred at the November 3 hearing:


        [Junior’s Counsel]: [T]he testimony today has shown there is no
        indispensable party issue, no real party and [sic] interest issue.
        John has made it clear he doesn’t have a dog in this fight in terms
        of ownership, he doesn’t claim ownership. [B]y his
        documentation for what it is, [he] said you know [‘O]nce there
        was a mechanism for me to get my money back and I got paid
        off, what was left, the residue went to my brother.[’] So, it’s
        Junior’s claim and Junior is here asserting it.


                                                ***


        [Court]: [S]o today, am I right guys? The only thing we were
        doing was deciding temporary possession on [Junior]’s
        complaint.


        [Junior’s Counsel]: And, and Your Honor I think with testimony
        that we’ve had so far we, we know that one of two things
        happened, we know that John disposed of any interest in
        property and either went to [Pitcher] or it went to Junior [], so I
        would ask the Court to deny the motion to dismiss with regard to
        real party and [sic] interest because John’s testimony is, [‘]I gave
        everything I didn’t sell to Junior Zimmerman[’] so Junior is the
        right plaintiff and Junior is here asserting his right toward the
        backhoe so we don’t need to be distracted by this real party and
        [sic] interest issue, that can be moved on from.


        [Pitcher’s Counsel]: I’ll agree with that because even if you
        don’t join [John] I can join him as a third-party complaint.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 16 of 20
                [Court]: Yeah, I agree with [what] [Junior] said there. We’re
                going to deny your motion to dismiss.[1]


       Tr. pp. 78, 88 (emphasis added).


[29]   When counsel for Junior characterized the dispute over ownership of the

       forklift and the backhoe as between Junior and Pitcher, counsel for Pitcher

       abandoned the Rule 12(B)(7) argument underlying his motion to dismiss. Thus,

       the doctrine of invited error barred Pitcher from belatedly reasserting the Rule

       12(B)(7) motion to dismiss in subsequent responsive pleadings, and it bars him

       from now arguing that the trial court erred in denying the motion.2


[30]   Pitcher also contends that the trial court erred in declining to rule on his Rule

       12(C) motion for judgment on the pleadings. Under Rule 6(C), a defendant to a

       claim must reply within twenty days. The effect of failure to answer a claim is

       that the averments of the pleading will be deemed admitted.




       1
         The trial court did not specify which Rule 12(B) subsection it found dispositive in denying Pitcher’s motion,
       which cited both subsections (6) and (7) as grounds for dismissal. Rule 12(B)(7), failure to join a party for just
       adjudication under Rule 19, permits the court to “treat the absent party as not indispensable and allow the
       action to proceed without him.” T.R. 19(B). It is unequivocally within the trial court’s discretion to
       determine the indispensability of a party. Rollins Burdick Hunter of Utah, Inc. v. Bd. of Trs. of Ball State Univ., 665
       N.E.2d 914, 920 (Ind. Ct. App. 1996). Here, the trial court heard from John himself, who declaimed any
       interest relating to the subject of Junior’s complaint. We are satisfied that there was no abuse of discretion in
       the trial court’s determination under either Rule 12(B)(6), that John was not the real party in interest, or Rule
       12(B)(7), that John was not an indispensable party.
       2
         We note, too, that Trial Rule 14(A) would have allowed Pitcher to join John as a third-party complaint.
       The rule provides: “A defending party, as a third-party plaintiff, may cause a summons and complaint to be
       served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s
       claim against him. The third-party plaintiff must file the third-party complaint with his original answer or by leave of
       court thereafter with good cause shown.” T.R. 14(A) (emphasis added). Pitcher did not attempt to join John
       by either method under Rule 14(A).




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020                            Page 17 of 20
[31]   Ten months after Junior filed his complaint, on April 24, 2018, and five months

       after the trial court held an initial hearing at which it declined to grant Pitcher’s

       Rule 12(B)(6) motion to dismiss and proceeded to hear argument on the

       remaining issues, Pitcher filed an answer asserting several affirmative defenses

       and seeking judgment on the pleadings under Trial Rule 12(C). On appeal,

       Pitcher argues that the trial court erred when it “failed to consider” his

       affirmative defenses and declined to rule on his Rule 12(C) motion for judgment

       on the pleadings, and thus that the trial court’s denial of his motion to correct

       error was an abuse of discretion. Appellant’s Br. at 28.


[32]   A motion for judgment on the pleadings pursuant to Rule 12(C) attacks the

       legal sufficiency of the pleadings. Rivera ex rel. Rivera v. City of Nappanee, 704

       N.E.2d 131, 132 (Ind. Ct. App. 1998), trans. denied. The rule allows for “any

       party [to] move for judgment on the pleadings” after the close of pleadings but

       “within such time as not to delay the trial.” T.R. 12(C). Motions filed pursuant

       to Rule 12 are subject to the time requirements of Trial Rule 6(C): “A

       responsive pleading required under these rules, shall be served within twenty

       [20] days after service of the prior pleading.” Because Pitcher’s Rule 12(C)

       motion was filed belatedly and after the trial court had already proceeded to

       hear argument on the substantive issues at the November 3 hearing, the trial

       court did not err in declining to rule on the motion.


[33]   Pitcher also argues on appeal that the trial court erred in imposing personal

       liability on him for payment of damages to Junior, rather than entering

       judgment against Fortune Companies, Pitcher’s business. Appellant’s Br. at 23.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 18 of 20
       Pitcher did not raise his objection to being named individually at the November

       2017 hearing. Rather, at the June 2018 hearing, he renewed his Rule 12(B)(6)

       motion to dismiss—which had already been denied by the trial court—arguing

       that Fortune Companies, not Pitcher, should be named as the real party at

       interest. Because Pitcher raised this objection in an untimely manner and

       because he acquiesced to being named as the defendant, the trial court did not

       err in imposing judgment against Pitcher individually, and we decline to

       address the matter further.


                                 V. The matter of attorney fees is waived.

[34]   Finally, Pitcher argues that the trial court’s assessment of attorney fees against

       him is contrary to law. A trial court’s decision to grant or deny attorney fees

       will not be disturbed absent an abuse of discretion. Kovenock v. Mallus, 660

       N.E.2d 638, 643 (Ind. Ct. App. 1996), trans. denied. What constitutes reasonable

       attorney fees is a matter largely within the trial court’s discretion. Chicago

       Southshore & South Bend R.R. v. Itel Rail Corp., 658 N.E.2d 624, 634 (Ind. Ct.

       App. 1995). An abuse of discretion occurs when the trial court’s decision is

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

       Damage Specialists of America v. Johnson, 984 N.E.2d 660, 667 (Ind. Ct. App.

       2013).


[35]   Here, the trial court awarded $1,000 in attorney fees to Junior when Pitcher and

       his counsel failed to appear at the February 2018 hearing. At the November 3,

       2017, hearing, the parties had agreed on a mutually convenient date in

       February, and Pitcher did not file any request for extension of time or otherwise


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 19 of 20
       notify the trial court that he would be unable to appear at the February hearing.

       Sometime after the order granting $1,000 of attorney fees to Junior, Pitcher’s

       counsel paid the award in full “out of [his] own pocket.” Tr. p. 163. Junior’s

       counsel confirmed that his office received the payment. By paying the fee as

       ordered and failing to timely object or request an evidentiary hearing pertaining

       to the award at the June 2018 hearing, Pitcher has waived the matter for our

       review on appeal. See Verma v. D.T. Carpentry, LLC, 805 N.E.2d 430, 433 (Ind.

       Ct. App. 2004) (when a party fails to make an objection to the trial court, it

       cannot raise the objection on appeal).


                                                 Conclusion
[36]   For all of these reasons, we hold that the trial court did not err in declining to

       grant the relief Pitcher sought.


[37]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2175 | March 24, 2020   Page 20 of 20
