MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Jul 23 2019, 8:31 am

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


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
Renee’ M. Babcoke                                        Rodney Pol, Jr.
Miller Beach (Gary), Indiana                             Assistant City Attorney
                                                         Gary, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andy’s Truck and Equipment                               July 23, 2019
Co., Inc., Andrew Young, and                             Court of Appeals Case No.
D.A.Y. Investments, LLC,                                 18A-OV-1708
Appellants,                                              Appeal from the Lake Superior
                                                         Court
        v.                                               The Honorable John Pera, Judge
                                                         Trial Court Cause Nos.
City of Gary,                                            45D10-1608-OV-2
Appellee.                                                45D10-1608-OV-1
                                                         45D10-1608-OV-3
                                                         45D10-1609-OV-5
                                                         45D10-1611-OV-6



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019                    Page 1 of 15
[1]   Andy’s Truck and Equipment Co., Inc., (“Andy’s Truck”), Andrew Young

      (“Young”), and D.A.Y. Investments, LLC, (collectively, the “Appellants”)

      appeal the dismissal of their requests for trials de novo. They raise one issue

      which we revise and restate as:


        I.    Whether the trial court abused its discretion by denying their Motions
              to Deem Requests to Be Admitted;

       II.    Whether the court abused its discretion in dismissing their requests
              for trials de novo.


      We affirm in part, reverse in part, and remand.


                                      Facts and Procedural History

[2]   The City of Gary (the “City”) filed a number of ordinance violations against

      Andy’s Truck including excessive amount of trash debris, abandoned vehicles,

      and high weeds and grass under cause numbers 45D10-1608-OV-1 (“Cause No.

      OV-1”) and 45D10-1608-OV-2 (“Cause No. OV-2”). The City filed a number

      of ordinance violations against Young including high weeds and grass,

      uncontrolled litter, and failing to clean up spills beneath leaking vehicles under

      cause numbers 45D10-1608-OV-3 (“Cause No. OV-3”) and 45D10-1609-OV-5

      (“Cause No. OV-5”). The City also alleged D.A.Y. Investments, LLC,

      committed the offense of “[c]reating a nuisance, excessive amount of trash




      Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 2 of 15
      debris that is injurious to anyone’s health” under cause number 45D10-1611-

      OV-6 (“Cause No. OV-6”). 1 Appellee’s Appendix Volume II at 35.


[3]   In 2016, the Gary City Court entered multiple orders of judgment in favor of

      the City, ordered Andy’s Truck to pay fines in excess of $175,000, ordered

      Young to pay fines in excess of $120,000, and ordered D.A.Y. Investments,

      LLC, to pay fines in excess of $18,000. The Appellants filed multiple requests

      for trials de novo in the Lake Superior Court in 2016.


[4]   In March 2016, Andy’s Truck and Young filed Motions to Strike and Dismiss

      in the Lake Superior Court and asserted that the City failed to file a duplicate

      summons or complaint pursuant to Ind. Trial De Novo Rule 2.


[5]   On October 11, 2016, the court held a hearing. 2 The court imposed a discovery

      deadline of May 5th and denied Young’s motion to dismiss. The court stated:


               [L]ooking at Rule 2(E), it is true that the City shall file duplicate
               summons and complaint, but that’s only after the City gets the
               required notice from the Clerk because that is also mandatory
               and it says, promptly after the Request for Trial de novo is filed,
               the clerk of the circuit court shall send notice. It’s the clerk that
               sends the notice. I agree with you that you did send the notice,
               [Appellants’ Attorney]. But the notice must come from the clerk
               and also with an order from the court that the prosecuting



      1
        Without citation to the record, Appellants state that the causes had been pending in the Gary City Court for
      many years and note: “OV-1 since September, 2013, OV-2 since January, 2013, OV-3 since May, 2009, OV-5
      since August, 2009 and OV-6 since November, 2014.” Appellants’ Brief at 8 n.5.
      2
       The transcript lists cause numbers 45D10-1608-OV-1, 45D10-1608-OV-2, 45D10-1608-OV-3, 45D10-1609-
      OV-5, and 45D10-1611-OV-6.

      Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019                     Page 3 of 15
              attorney file a duplicate infraction or ordinance complaint and
              summons with the clerk charging the infraction. There was never
              – there may have been notice from the clerk, but there was never
              an order from the court directing the filing of that. So, your
              motion to dismiss is denied for that reason.


      Appellee’s Appendix Volume II at 179-180.


[6]   Andy’s Truck served Requests to Admit upon the City via regular U.S. mail on

      March 23, 2017, and electronically on March 27, 2017, with respect to some

      cause numbers and by mail and electronically on March 30, 2017, with respect

      to other cause numbers. On May 3, 2017, the City served Answers to Requests

      to Admit under Cause Nos. OV-1, OV-2, and OV-3.


[7]   In August 2017, the Appellants filed Motions to Deem Requests to Be

      Admitted which cited Ind. Trial Rule 36(A) and argued that the City did not

      serve responses until May 3, 2017. On August 14, 2017, the City filed

      Responses to Appellants’ Motions to Deem Requests to Admit Admitted under

      Cause Nos. OV-01, OV-2, OV-3, OV-5, and OV-6. The City asserted that its

      counsel emailed counsel for Andy’s Truck on April 10, 2017, and informed her

      that he would need more time to reply, that counsel never responded to the

      request for more time, and the City responded to the discovery request before

      the deadline by sending responses on May 3, 2017.


[8]   Meanwhile, on August 8, 2017, the Appellants filed multiple motions for

      summary judgment and mentioned the Motions to Deem Requests to Admit

      Admitted and/or argued that the Indiana Department of Environmental


      Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 4 of 15
       Management (“IDEM”) asserted jurisdiction and referenced Indiana’s Home

       Rule Act. On September 12, 2017, the court scheduled a bench trial for April

       30, 2018.


[9]    On November 2, 2017, the court held a hearing and denied Appellants’ requests

       for admissions because “these are core issues intended to be litigated by the

       parties and not something that should be decided by a failure to respond for a

       few days to a request for admissions.” Transcript Volume II at 34. The court

       also denied the motions for summary judgment and referred the case to

       mediation.


[10]   On January 30, 2018, the court held a hearing, mentioned a bankruptcy, and

       the Appellants’ counsel stated: “Yes. I filed a notice to apprise the Court ahead

       of any – coming in here after the deadline for mediation and having to explain

       the situation with Chapter 11s and motions to (indiscernible).” Id. at 61. After

       some discussion, the court stated that all orders with respect to its cases would

       remain in effect including the obligation to complete mediation by March 2nd.

       The Appellants’ counsel later stated that she could not participate pursuant to

       federal law. The court asked her why she had not filed a motion to withdraw,

       and she answered: “Well, no one can participate, your Honor. I have a motion

       to employ pending for all of these matters.” Id. at 64. The City’s counsel

       asserted that the Appellants should have filed the proper motions when they

       filed the bankruptcy petition and not have waited four months. The court

       stated:



       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 5 of 15
               You’re the counsel of record for the Defendant. You’re under an
               order from this Court to complete the mediation by March 2nd.
               There’s nothing in front of me to stay it, postpone it, or do
               anything else. So, we have a trial scheduled, a case management
               schedule, and you’re expected to adhere to it. This matter is not
               stayed. Which tells me that it’s not subject to the Bankruptcy Act
               to begin with. And if it is, that will be for the bankruptcy judge
               to sort out later.


       Id. at 65-66. Appellants’ counsel requested a continuance, and the court denied

       the request.


[11]   On March 15, 2018, the Appellants filed an emergency motion for continuance

       under Cause Nos. OV-1, OV-2, OV-3, OV-5, and OV-6. The motion indicated

       that: the Appellants filed petitions for Chapter 11 Orders for Relief in the

       United States Bankruptcy Court for the Northern District of Indiana under

       certain cause numbers; that the Appellants’ counsel filed a “Motion to Employ

       with the bankruptcy court, but as expected by [the Appellants’ counsel] and

       disclosed to [the City] and this court before trial setting, that motion has not yet

       been granted”; a final hearing on the Motion to Employ had been rescheduled

       for pre-hearing on May 10, 2018, “over debtor’s objection and due to no fault of

       debtor or its counsel, who had expected the Motion to Employ to be resolved

       by the date of filing this motion”; the Appellants’ counsel must comply with 11

       U.S.C. 327 and she is precluded from providing legal representation to the

       Appellants until a Motion to Employ has been approved in the Chapter 11

       proceeding; and Appellants will be left without legal representation on the

       currently set trial dates. Appellants’ Appendix Volume III at 134.


       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 6 of 15
[12]   On March 23, 2018, the City filed a motion to dismiss the cases pursuant to

       Ind. Trial Rule 41(E) and asserted in part that the Appellants were cited for

       municipal code violations dating back to nearly a decade ago in 2009, they

       failed to properly employ counsel for their bankruptcy cases or obtain authority

       to employ counsel for the ordinance violation cases, and the mediator was

       forced to cancel the mediation after both he and the City prepared for and

       appeared at the mediation as scheduled.


[13]   On April 9, 2018, the court held a hearing. The City’s counsel argued in part

       that he believed that “dismissing their petition and reinstating the fines and

       violations determined by the Gary City Court would be the proper way to

       proceed at this time . . . .” Transcript Volume II at 85. After argument, the

       court denied the request for a continuance and stated that the case was going to

       trial on April 30th subject to a ruling on the motion to dismiss. The court also

       told the Appellants’ counsel that she had until April 16th to file a response to

       the City’s motion to dismiss.


[14]   On April 16, 2018, the Appellants’ counsel filed withdrawals of appearance.

       Each withdrawal contains a certificate of service which states that the

       instrument was served on April 16, 2018, and each listed Young and his address

       and contained a line with what appears to be Young’s initials. In a Motion to

       Withdraw filed on April 19, 2018, the Appellants’ counsel asserted that

       representation of them was “impossible by operation of 11 U.S.C. 327(e) unless

       or until the bankruptcy court resolves the disputed issue of [her] further

       representation of the [Appellants] in [her] favor.” Appellants’ Appendix

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 7 of 15
       Volume III at 142. She asserted that she consulted with her clients on or about

       April 9, 2018, and advised them to seek independent third-party counsel for

       legal advice on her withdrawal and that she and her clients agreed on that date

       that she needed to withdraw. She requested that the court allow her withdrawal

       and grant the Appellants sixty days to find substitute counsel.


[15]   On April 24, 2018, the court denied the motions to withdraw and stated: “The

       Court, having reviewed the motions, notes that Counsel has not complied with

       Trial Rule 3.1.” Id. at 145. That same day, the court granted the City’s

       motions to dismiss, affirmed the judgments of the Gary City Court, and

       dismissed the Appellants’ requests for trials de novo with prejudice. The

       Appellants filed motions for reconsideration and relief from judgment, which

       the court denied.


                                                      Discussion

                                                            I.


[16]   The first issue is whether the trial court abused its discretion by denying the

       Appellants’ Motions to Deem Requests to Be Admitted. The Appellants assert

       that the City did not timely respond to the Requests to Admit or request

       additional time. 3 The City asserts that the Appellants fail to argue that the




       3
         The Appellants also assert that the City “offered nothing in support of its Response to Young’s Motion for
       Summary Judgment, nor testimony at hearing thereon, that would be admissible evidence,” and that they
       were entitled to summary judgment. Appellants’ Brief at 17. To the extent their motions for summary
       judgment were based upon the admissions, we cannot say that reversal is warranted as we affirm the trial
       court’s denial of the request for admissions. To the extent their motions for summary judgment referenced

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019                    Page 8 of 15
       merits of the case were not subserved by withdrawal or that they were

       prejudiced in their defense by the withdrawal resulting in waiver of its challenge

       to the trial court’s ruling. It also argues that, even if its responses were

       untimely, the court specifically ruled that the admissions were core issues that

       should not be defaulted.


[17]   Ind. Trial Rule 36(A) provides in part that “[a] party may serve upon any other

       party a written request for the admission, for purposes of the pending action

       only, of the truth of any matters” and that the matter is “admitted unless,

       within a period designated in the request, not less than thirty [30] days after

       service thereof or within such shorter or longer time as the court may allow, the

       party to whom the request is directed serves upon the party requesting the

       admission a written answer or objection.” Ind. Trial Rule 36(B) provides that

       “[a]ny matter admitted under this rule is conclusively established unless the

       court on motion permits withdrawal or amendment of the admission,” and “the

       court may permit withdrawal or amendment when the presentation of the

       merits of the action will be subserved thereby and the party who obtained the

       admission fails to satisfy the court that withdrawal or amendment will prejudice

       him in maintaining his action or defense on the merits.” “As used in Rule

       36(B), the word ‘“prejudice” does not mean that the party who has obtained the

       admissions will lose the benefit of the admissions; rather, it means that the party




       IDEM’s jurisdiction or the Home Rule Act, we note that the Appellants do not refer to either in their brief on
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019                     Page 9 of 15
       has suffered a detriment in the preparation of his case.’” Costello v. Zavodnik, 55

       N.E.3d 348, 352-353 (Ind. Ct. App. 2016) (quoting Corby v. Swank, 670 N.E.2d

       1322, 1326 (Ind. Ct. App. 1996)), reh’g denied. “For example, prejudice under

       the rule may be shown where the party obtaining the admission is unable to

       produce key witnesses or present important evidence.” City of Muncie v. Peters,

       709 N.E.2d 50, 55 (Ind. Ct. App. 1999), reh’g denied, trans. denied.


[18]   The Indiana Supreme Court has noted that the underlying purpose of Trial

       Rule 36(B) is to “avoid the binding effect of inadvertent admissions.” Gen.

       Motors Corp. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 889 (Ind. 1991), reh’g

       denied. We will reverse the grant or denial of a motion to withdraw admissions

       only for an abuse of discretion. City of Muncie, 709 N.E.2d at 55.


[19]   The Appellants cite only to the argument of their counsel at the November 2,

       2017 hearing for the date on which the requests to admit were served. The

       record reveals that the Motions to Deem Requests to Admit Admitted state that

       Andy’s Truck served some Requests to Admit upon the City via regular U.S.

       mail on March 23, 2017, and electronically on March 27, 2017, and others were

       served by mail and electronically on March 30, 2017. The City served

       responses on May 3, 2017, which was two days prior to the May 5, 2017

       discovery deadline and several months before the case was ultimately dismissed

       in April 2018. We cannot say that allowing the City to withdraw any

       admissions would prejudice the Appellants in maintaining their action on the

       merits. On November 2, 2017, the court held a hearing and denied the

       Appellants’ Motions to Deem Requests to Be Admitted because “these are core

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 10 of 15
       issues intended to be litigated by the parties and not something that should be

       decided by a failure to respond for a few days to a request for admissions.”

       Transcript Volume II at 34. Under the circumstances, we cannot say that the

       trial court abused its discretion.


                                                         II.


[20]   The next issue is whether the trial court abused its discretion in dismissing the

       Appellants’ requests for trials de novo. The Appellants argue that the court

       granted the City’s motions to dismiss on the basis of delay when they had no

       counsel authorized to respond to the motions and they did not delay the trial.

       The City asserts that the court did not abuse its discretion by dismissing the

       Appellants’ petitions and points to the Appellants’ failure to file a reply to its

       motion to dismiss, their delays throughout the original city court matters,

       continuing delays in the trial de novo matters, failure to obtain counsel, and

       failure to mediate the matters as ordered by the trial court.


[21]   Ind. Trial Rule 41(E) provides:


               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



       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 11 of 15
                upon such terms that the court in its discretion determines to be
                necessary to assure such diligent prosecution.


[22]   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

       before it. Id. We will affirm if there is any evidence that supports the trial

       court’s decision. Id. 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 Cty. Four Wheelers Inc., 889 N.E.2d 903, 905 (Ind. Ct. App.

       2008).


[23]   We note that the record shows that at least some action was taken by the

       Appellants during the period leading up to the court’s April 24, 2018 order.

       Approximately fifty-two days before the City filed its motion to dismiss

       pursuant to Rule 41(E) on March 23, 2018, the court held a hearing on January

       30, 2018, at which the Appellants’ counsel argued that she could not participate

       pursuant to federal law, asserted that she had a pending motion to employ in

       bankruptcy court, and requested a continuance. The Appellants also filed an

       emergency motion for continuance on March 15, 2018, eight days before the

       City filed its motion to dismiss pursuant to Rule 41(E) on March 23, 2018. The

       emergency motion states in part:

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 12 of 15
        2. [The Appellants] cannot prosecute or defend themselves in
        this matter without a counsel of record, as they are largely
        Limited Liability Companies (LLCs), or corporations (Corp.’s)
        not individuals, and plaintiff is seeking an amount in excess of
        $1,500. S.C. Rule 8(C).

        3. In any event, [the Appellants] are entitled to legal
        representation, if they so choose.

        4. Defendants filed Petitions for chapter 11 Orders for Relief in
        the U.S. Bankruptcy Court for the Northern District of Indiana
        under cause numbers (D.A.Y. Investments, LLC) 17-22657;
        (Surplus Management Systems, LLC) 17-22658; (Andy’s Truck
        and Equipment Co., Inc.) 17-22661; (Andrew Young) 17-22665;
        (Gary II, LLC) 17-22696 on or about September 17, 2017.
        Pursuant to F.R.B.P[.] 2002, [the City] received Notice of the
        bankruptcy filing through the Clerk of the U.S. Bankruptcy
        Court.

        5. [The Appellants’] counsel personally informed [the City’s]
        counsel and this court of the Petitions for Order of Relief when
        she last stepped up before this court and advised that any counsel
        wishing to represent these debtors in a state or municipal court
        proceeding had to obtain authority to do so from the presiding
        judge in the cause numbers set forth above.

        6. [The Appellants’] counsel has filed a Motion to Employ with
        the bankruptcy court, but as expected by defense counsel and
        disclosed to [the City] and this court before trial setting, that
        motion has not yet been granted. Unfortunately, final hearing on
        defense counsel’s Motion to Employ in this matter has been re-
        set for pre-hearing to May 10, 2018 over debtor’s objection and
        due to no fault of debtor or its counsel, who had expected the
        Motion to Employ to be resolved by the date of filing this
        motion.

        8. [sic] Debtors’ counsel must comply with 11 U.S.C. 327
        (“Employment of Professional Persons”), as applied by the U.S.

Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 13 of 15
        Bankruptcy Court for the Northern District of Indiana and all
        rules of ethics. As such, she, and any other legal counsel, is
        precluded from providing legal representation to defendants until
        a Motion to Employ has been approved in the debtors’ Chapter
        11 proceeding.

        9. This motion is not presented for the purpose of harassment or
        delay. [The Appellants] herein will simply be left without legal
        representation on the currently set trial dates, which would
        certainly result in further delay.

Appellants’ Appendix Volume III at 134 (footnote omitted). The Appellants’

counsel filed withdrawals of appearance on April 16, 2018, in which she

requested the court to grant the Appellants sixty days to find substitute counsel.

Further, at the time the City filed its motion to dismiss, the court had already

scheduled a trial on September 12, 2017, for April 30, 2018. Under these

circumstances, the record does not show that the requirements for dismissal for

failure to prosecute as set forth in Rule 41(E) were satisfied, and we conclude

that any dismissal pursuant to that subsection was improper and the trial court

abused its discretion when it imposed the harshest possible sanction in

dismissing the Appellants’ motions for trials de novo. See State v. McClaine, 261

Ind. 60, 63, 300 N.E.2d 342, 344 (1973) (“The burden is clearly on the

defendant to timely file a motion to dismiss pursuant to TR. 41(E). That is to

say, the defendant must file his motion after the sixty-day period has expired

and before the plaintiff resumes prosecution. The defendants in this case

moved to dismiss after the plaintiff filed its request for trial and thereby failed to

meet the requirements of TR. 41(E).”); Babchuk v. Ind. Univ. Health Tipton Hosp.,

Inc., 30 N.E.3d 1252, 1255 (Ind. Ct. App. 2015) (observing that it is the

Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019   Page 14 of 15
       defendant’s burden to timely file a Trial Rule 41(E) motion to dismiss and the

       motion must be filed before the plaintiff resumes prosecution, rejecting the

       defendant’s argument that the plaintiff’s motion to stay did not constitute

       resumption of prosecution for purposes of Rule 41(E) where the plaintiff

       requested a scheduling conference in the alternative, and holding that the

       defendant’s Rule 41(E) motion was untimely and the trial court abused its

       discretion when it dismissed the plaintiff’s complaint); Benton v. Moore, 622

       N.E.2d 1002, 1006 (Ind. Ct. App. 1993) (holding that the granting of a Trial

       Rule 41(E) motion is an abuse of discretion when trial had already been

       scheduled and all that was available for the plaintiffs to do at that time was

       wait). 4


                                                       Conclusion

[24]   For the foregoing reasons, we affirm the trial court’s denial of the Appellants’

       Motions to Deem Requests to Be Admitted, reverse the court’s dismissal of

       Appellants’ requests for trials de novo, and remand for proceedings consistent

       with this opinion.


[25]   Affirmed in part, reversed in part, and remanded.


       May, J., and Mathias, J., concur.




       4
         Because we conclude that the trial court abused its discretion in dismissing the Appellants’ motions for trials
       de novo, we need not address the Appellants’ remaining arguments regarding Ind. Trial De Novo Rule 2 or
       the motions to continue or withdraw.

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-1708 | July 23, 2019                      Page 15 of 15
