Robert Blackford v. Boone County Area Plan Commission and Boone County Drainage Board

Sep 11 2015, 8:53 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Michael J. Andreoli Robert Clutter
Zionsville, Indiana Sergey Grechukhin
Kirtley, Taylor, Sims, Chadd & Minnette,
P.C.
Lebanon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Blackford, September 11, 2015
Appellant-Defendant, Court of Appeals Case No.
06A01-1410-MI-437
v. Appeal from the Boone Superior
Court
Boone County Area Plan Lower Court Cause No.
06D02-1405-MI-43
Commission and Boone County
Drainage Board, The Honorable Rebecca McClure,
Judge
Appellees-Plaintiffs.
Pyle, Judge.
Statement of the Case
[1] Appellant-Defendant, Robert Blackford (“Blackford”), who is a former
prosecutor and represented himself pro se, appeals the trial court’s denial of his
oral request for a continuance made on the day of trial. The trial court denied
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Blackford’s request, held the bench trial, and entered judgment in favor of
Appellees-Plaintiffs, Boone County Area Plan Commission (“the Plan
Commission”) and Boone County Drainage Board (“the Drainage Board”)
(collectively, “Boone County”). Blackford argues that the trial court abused its
discretion by denying his continuance request. Given Blackford’s failure to
show good cause or prejudice, we conclude that the trial court did not abuse its
discretion.
[2] We affirm.
Issue
Whether the trial court abused its discretion by denying
Blackford’s oral request for a continuance made on the day of trial.
Facts
[3] On May 1, 2014, the Plan Commission filed a complaint against Blackford and
his estranged wife, Susan Blackford (“Susan”).1 In its complaint, the Plan
Commission alleged, in part, that:
4. Defendants are the owners of real estate located in Boone
County, County Parcel Number 008-00210-01 and an address of
3401 East 750 South (est.), Boone County, Indiana (“the
Property”). The Property is located within Boone County but
outside an incorporated town or city.
1
Susan was named as a defendant below, but she neither responded to the complaint nor appeared at trial.
The trial court entered default judgment against her. Because Susan was a party below, she is a nominal
party in this appeal. See Ind. Appellate Rule 17(A). For simplicity, when referring to the claims alleged
against Blackford and Susan, we will refer to them collectively as “Blackford” or “Defendants.”
Court of Appeals of Indiana | Opinion 06A01-1410-MI-437| September 11, 2015 Page 2 of 26
5. The unincorporated areas of Boone County are governed by
and subject to the Zoning Ordinance of Boone County (“the
Zoning Ordinance”) . . . .
6. The Property is designated as General Agricultural (“AG”), as
that term is defined in the Zoning Ordinance.
7. The Zoning Ordinance provides that “Open Material Storage”
is permitted only on real estate with a zoning designation[] of I-2
(General Industry), or by Special Exception on real estate with a
zoning designation of I-1 (light Industry). Open Material Storage
use is not permitted in the AG designated areas.
8. A “Construction/Demolition Site,” as that term is defined in
the Zoning Ordinance, is permitted only by Special Exception by
the Boone County Board of Zoning Appeals (“BZA”) in the
areas designated with an I-1 zoning, I-2 zoning, or AG zoning.
Defendants did not apply for a special exception with the BZA.
9. I.C. [§] 36-7-4-1014 provides that Plaintiff may bring an action
in a court of competent jurisdiction to enforce the Zoning
Ordinance.
10. On or about December 19, 2013, Defendants’ Property was
inspected and found to contain a significant amount of dirt,
concrete, debris, and an unpermitted construction trailer. It was
determined that the accumulation of dirt, concrete, and debris
has negatively affected drainage, and presented a high potential
for off-site erosion and sedimentation in violation of the Boone
County Drainage Ordinance. Defendants did not obtain a permit
for the temporary construction trailer or a Drainage Permit in
violation of the Zoning Ordinance.
11. On or about March 17, 2014[,] a Notice to Stop Work Order
(“Order”) was placed on the Property. Defendants did not
comply with the Notice.
12. On or about April 29, 2014, Defendants’ Property was
inspected and found to contain piles of dirt, concrete, rebar,
construction equipment, and an unpermitted construction trailer,
and a second Order was posted on the Property.
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13. Defendants, or their agents, have intentionally removed and
destroyed two (2) Stop Work Orders posted on the Property by
Plaintiff, and continue to conduct activities at the site in
contravention of those Orders and the Zoning Ordinance.
14. Defendants have been notified of the non-conforming uses of
the Property by letters sent by U.S. Mail and Certified Mail, and
have refused or failed to remedy the non-conforming uses of the
Property.
15. Defendants’ uses of the Property . . . are in violation of the
Zoning Ordinance, Drainage Ordinance, and is a common
nuisance.
(App. 21-23) (emphases added). The Plan Commission sought a permanent
injunction to “permanently enjoin Defendants from utilizing the Property as a
construction/demolition site or an open material storage for storing dirt,
concrete, rebar, debris, industrial or construction waste and other materials.”
(App. 24). Additionally, the Plan Commission sought, subject to provisions of
the Zoning Ordinance, “civil penalties of not more than Three Hundred Dollars
($300.00) per day” as well as attorney fees and costs. (App. 24).
[4] On May 22, 2014, Blackford, a former prosecutor, filed a pro se answer to the
complaint. In his answer, Blackford denied that he was using the Property for
Open Material Storage or as a Construction/Demolition Site. In regard to the
allegations contained in paragraph 10 of the Plan Commission’s complaint,
Blackford answered, in part, as follows:
OH MY GOD!!!! Rachel Cardis [the Plan Commission’s
Executive Director] found a significant amount of dirt on my
farm! I admit it. There is a large amount of dirt on my property.
I find no authority whatsoever enabling any Boone County
official to regulate dirt on my farm, either the bringing in of the
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dirt, or the moving of dirt around on the property itself . . . After
studying the zoning ordinance, I believe my impression is
correct—there are no prohibitions to what I am doing . . . [T]he
Complaint turns Bill Clintonish: “Mistakes were made”!!
Mistakes don’t make themselves, and the phrase “It was
determined” in paragraph 10 suffers the same ambiguity: Who
made the determination that drainage has been negatively
affected? What kind of qualifications does that person possess?
Against what standard was the present condition compared in
order to make such a determination? This allegation is void for
vagueness. I had the property examined and surveyed by Hause
Surveying and Engineering, and the surveyors and engineers
determined that, in fact, there has been no impact whatsoever to the
drainage at the property. All of the neighboring properties drained
onto my farm. All the neighboring properties continue to drain
onto my farm. There is no drainage from my farm to any neighboring
property. I have no intention of altering that fact. Neither is there
any off site erosion. I do not believe I need a drainage permit . . . .
(Appellee’s App. 5-7) (emphases added). Blackford also asserted that any Stop
Work Order was “void for lack of authority” because his activity on his
property was “simply not prohibited by the zoning ordinance.” (Appellee’s
App. 8). He also acknowledged that he had received correspondence from the
Plan Commission but admitted that he had “ignored” it. (Appellee’s App. 9).
Blackford did not raise any specific affirmative defenses in his answer.
[5] Along with Blackford’s answer, he also filed a counterclaim, alleging that the
Plan Commission had committed perjury in its complaint. Blackford alleged,
in part, that:
Paragraph #10 [of the Plan Commission’s complaint] is simply
untrue on its face. It is unlikely anyone with a level of
intelligence above that of [a] moron could conclude my activities
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on my property have affected drainage. I have had my property
surveyed by Hause Surveying and Engineering. They report I am
having no effect on drainage.
(Appellee’s App. 11). As part of his counterclaim, Blackford also asserted, “I
am a former prosecutor.” (Appellee’s App. 12).
[6] On May 30, 2014, the trial court held a pretrial conference, during which it set a
bench trial for July 30, 2014. During that hearing, the trial court asked
Blackford if he was going to hire counsel, and he indicated that he was not.
That same day, Blackford filed a motion to dismiss, and the Plan Commission
filed a response in opposition to Blackford’s motion shortly thereafter.2 On
June 16, 2014, the trial court denied Blackford’s motion to dismiss.
[7] On July 3, 2014, the Plan Commission filed a motion to amend its complaint,
in which it requested “to include the [Drainage] Board as another Plaintiff.”
(App. 26). In its motion, the Plan Commission stated that the Drainage Board
was “an interested and an indispensable party” because the “original Complaint
allege[d] violations of the Stormwater Management Ordinance of Boone
County[.]” (App. 26). The Plan Commission stated that “the Amended
Complaint ha[d] no substantive changes[,]” and it attached a copy of the
amended complaint to its motion. (App. 26).
2
Blackford did not include a copy of his motion to dismiss or the Plan Commission’s opposition motion in
his Appellant’s Appendix; nor did Boone County include a copy of these pleadings in their Appellees’
Appendix.
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[8] In its proposed amended complaint, the Plan Commission alleged that the
Drainage Board was “charged with exercising the enforcement of drainage and
stormwater management regulations” and could “bring civil actions in its own
name to enforce any provisions of the chapter” of the ordinance. (App. 28). In
regard to the violation of the drainage ordinance, the Plan Commission also
alleged that
stormwater drainage improvements related to development of
lands, and erosion and sediment control systems installed during
new construction and grading of lots and other parcels of land
located with[in] Bo[o]ne County are regulated by and subject to
the Stormwater Management Ordinance of Boone County (the
“Drainage Ordinance”) as adopted by the Commissioners of
Boone County on April 21, 1997, and most recently amended on
December 1, 2008.
(App. 29). As in its complaint, the Plan Commission alleged in the amended
complaint that “Defendants’ uses of the Property . . . [were] in violation of the
Zoning Ordinance, Drainage Ordinance, and [were] a common nuisance.”
(App. 31). The Plan Commission again sought a permanent injunction to
“permanently enjoin Defendants from utilizing the Property as a
construction/demolition site or an open material storage for storing dirt,
concrete, rebar, debris, industrial or construction waste and other materials.”
(App. 31). Additionally, the Plan Commission’s proposed amended complaint
requested fines, pursuant to both the Zoning Ordinance and the Drainage
Ordinance, for violations of these ordinances. Specifically, it sought: (1) under
the provisions of the Zoning Ordinance, “civil penalties of not more than Three
Hundred Dollars ($300.00) per day[;]” and (2) under the provisions of the
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Drainage Ordinance, “civil penalties of not more than Five Thousand Dollars
($5000.00) per day[.]” (App. 32). It also sought attorney fees and costs.
[9] On July 7, 2014, the trial court instructed Blackford that he had ten days to
respond to the Plan Commission’s motion to amend the complaint. Fourteen
days later, on July 21, 2014, Blackford filed a pro se Opposition to Plaintiff’s
Motion to Amend Complaint (“opposition response”). In his opposition
response, Blackford generally stated that he opposed the Plan Commission’s
motion to amend, but he did not assert any specific objection to the addition of
the Drainage Board. Blackford asserted, in part, that:
The proposed amended Complaint, just as the original
Complaint, contains no information which could in any way
enable defendants to defend this action . . . Plaintiffs have not
identified a single, living person as a plaintiff in order that
defendants may undertake discovery. Is the Court going to
entertain a Notice of Deposition of Boone County Drainage
Board? Who’s going to show up? The original Complaint was
drafted so poorly that plaintiff’s attorney is able to add an entire
county board without even having to add to or change the
language of the original Complaint. Is it possible that next week
plaintiff’s attorney will move the court to add the FBI, the CIA,
and the Department of Homeland Security to the list of plaintiffs?
Who am I dealing with here?
*****
The original Complaint, and it’s equally muddy proposed
amended Complaint, both fail to state a basis for the court’s
jurisdiction . . . .
In short, the proposed amended Complaint fails to state a claim
for which relief can be granted 12(b)(6), fails to state facts which
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could give rise to the court’s jurisdiction 12(b)(1), and gives rise
to a motion for more definitive statement 12(e).
(App. 34-36). Also on July 21, 2014, the trial court granted the Plan
Commission’s motion to amend,3 and Boone County’s amended complaint was
deemed filed as of that day.4
[10] On Wednesday, July 30, 2014, the trial court held a bench trial on Boone
County’s claims and Blackford’s counterclaim. At the beginning of trial,
Blackford told the trial court that he had gotten notice the preceding Friday that
the trial court had granted the Plan Commission’s request to file the amended
complaint. He stated that he had not “had an opportunity to research what that
d[id] to the landscape” and that he had “sought counsel beginning first thing
Monday morning [June 28], because this ha[d] gotten more complicated.” (Tr.
7).
[11] The trial court questioned what Blackford needed to research, noting that he
had already responded to the Plan Commission’s motion to amend and that he
“had addressed the issue raised[.]” (Tr. 7). The trial court then discussed the
procedural history surrounding the motion to amend, noting that Blackford had
filed, in an untimely manner, his opposition response to the motion to amend
3
Blackford did not include a copy of the trial court’s order in his Appellant’s Appendix; nor did Boone
County include a copy of it in their Appellees’ Appendix.
4
Boone County’s amended complaint contains a file-stamped date of July 24, 2014, but the chronological
case summary (“CCS”) indicates that it was “([d]eemed filed on 7-21-14 by signed Order on that date).”
(App. 5).
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on July 21. The trial court indicated that, when it granted the Plan
Commission’s motion to amend, the amended complaint attached to the
motion was deemed filed on the date of the Plan Commission’s request, which
was July 3. The trial court further stated that it “assumed” that Blackford’s
opposition response was an answer to the amended complaint. (Tr. 10).
Blackford stated that he thought he had twenty days from the date the trial
court granted the motion to amend, which would have been twenty days after
July 21. The trial court disagreed and stated that it was “deem[ing]” the
[amended] Complaint answered[.]” (Tr. 11).
[12] Blackford then requested a continuance so that he could hire an attorney,
stating that that case had gotten “way more complex than it was when it first
started” due to the addition of the Drainage Board and that he only became
aware of the complexity when he got the order granting the motion to amend.
(Tr. 12). Boone County objected, arguing that Blackford had been aware of the
drainage issue because it was in the original complaint, he had been in
communication with county officials since late 2013 about drainage issues, and
he had “every opportunity to hire an attorney[.]” (Tr. 12). The trial court
stated that the amended complaint “did not change the nature of the
Complaint” and merely “added a necessary party.” (Tr. 13). When the trial
court asked Blackford how the case had become more complex when the
violation of the drainage ordinance was already at issue in the original
complaint, he acknowledged that the nature of the complaint had not changed
because paragraph ten in the original complaint contained an allegation that he
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had violated the drainage ordinance. He contended, however, that the addition
of the new party brought “a whole new prospective” to the case because it
added a party who was able to enforce the drainage ordinance violation issue.
(Tr. 15). Blackford asserted that he had not had the opportunity to review the
drainage issue and had “not [been] concerned” with the issue because the
Drainage Board was not a party. (Tr. 14). The trial court pointed out that
Blackford had done “nothing in response to that original Complaint to preclude
that [drainage ordinance violation] argument” and had not asserted that the
Plan Commission did not have a necessary party named. (Tr. 15). After
Blackford asserted that he had not responded to the drainage ordinance
violation allegation in his answer to the original complaint, the trial court stated
that Blackford’s “Answer filed on May the 22nd of 2014 did address paragraph
ten (10)” and the drainage violation issue. (Tr. 17). The trial court further
noted that, when the parties “were here the last time in Court” for a pretrial
hearing on May 30, 2014, the trial court had advised Blackford that “this was
[a] trial . . . not a small claims matter” and told him that he “would have to
adhere to the Rules of Evidence[.]” (Tr. 17). The trial court reminded
Blackford that during that pretrial hearing, it had asked him about hiring
counsel, and he indicated that he did not intend to do so. The trial court
determined that, between that pretrial hearing and the bench trial, the nature of
the complaint had not changed significantly, and it denied Blackford’s oral
request to continue the trial.
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[13] During the bench trial, Blackford cross-examined Boone County’s witnesses
regarding the allegations that Blackford had violated the drainage ordinance
and the zoning ordinance. He also presented witnesses on his own behalf. At
the end of the trial, the trial court took the matter under advisement.
[14] Thereafter, on August 12, 2014, the trial court entered its order, enjoining
Blackford “from further work” on his property “pending approval from the
Boone County Plan Commission, the Boone County Drainage Board, and the
Indiana Department of Environmental Management.” (App. 20). The trial
court made the following relevant findings and conclusions regarding the
procedural history leading up to trial, the denial of Blackford’s continuance
request, and the claims asserted in Boone County’s amended complaint:
52. The Boone County Area Plan Commission filed its original
Verified Complaint for Injunction and Fine on May 1, 2014.
That Complaint contained an allegation that the Defendants’ use
of their Property constituted violations of both the Zoning
Ordinance[] and Drainage Ordinance.
53. . . . On May 22, 2014, Robert Blackford filed his Answer to
Plaintiff’s Verified Complaint and Counter-Claim. Included in
that Answer was [Blackford’s] answer to the paragraph of the
Plaintiff’s Complaint that alleged violation of both the County
[Zoning] Ordinance and the County Drainage Board Ordinance.
54. Further, in Robert Blackford’s Counter-Claim he allege[d]
that “It [was] unlikely anyone with a level of intelligence above
that of a moron could conclude my activities on my property
have affected drainage . . .” thereby addressing the portion of
Plaintiff’s Complaint alleging a violation of the County Drainage
Ordinance.
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55. On July 3, 2014, Plaintiff Boone County Area Plan
Commission requested leave to amend the Complaint earlier
filed to include the Boone County Drainage Board as a necessary
party, which motion contained a copy of the proposed Amended
Complaint. Plaintiff’s Motion requested that the Court issue an
order granting Plaintiff leave to file the Amended Complaint,
that the Amended Complaint be deemed filed, and for all other
just and proper relief.
56. On July 7, 2014, the Court gave the Defendants ten (10) days
to respond to Plaintiff’s Request to Amend.
57. It was not until July 21, 2014, that Robert Blackford filed his
Opposition to Plaintiff’s Motion to Amend Complaint. In that
response, Robert Blackford stated that the “proposed amended
Complaint fails to state a claim for which relief can be granted,
fails to state facts which could give rise to the court’s jurisdiction,
and gives rise to a motion of more definitive statement.”
58. The Court did not read [Blackford’s] Opposition to oppose
addition of a necessary party, but [as] to claim instead that no
entity had the right to bring the current action against him.
59. On July 24, 2014, the Plaintiffs marked for filing their earlier
proposed Amended Complaint for Injunction and Fine. The
Court having earlier so Ordered deemed that Amended
Complaint filed as of July 3, 2014.5
*****
61. Clearly, Plaintiffs proved violations of both the Boone
County Zoning Ordinance and the Boone County Drainage
Board Ordinance.
62. Although this Court would not normally impose the
maximum allowable fine upon such a finding, the Court finds
most egregious, the Defendants’ total disregard for the authority
of the Boone County Area Plan Commission and Drainage
5
This is in conflict with the CCS as noted in footnote 4.
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Board to regulate work on unincorporated land in Boone County
and their blatant disregard for the Stop Work Orders issued.
63. Until approximately 1983, Robert Blackford was an attorney
by profession.
64. . . . it was made clear to [Defendants] by the Area Plan
Commission’s letter of March 17, 2014, that they bore total
responsibility for violations upon their property and that they
would be held financially accountable for any fines imposed. . . .
*****
66. The Court, having found that Robert C. Blackford and Susan
J. Blackford violated Boone County Drainage Ordinance as set
forth above, and finding the actions of the Defendants in ignoring
the three (3) Stop Work Orders issued particularly egregious, the
Court hereby assesses a fine of Five Thousand Dollars
($5,000.00) per day from the date of the face-to-face [meeting]
between county officials and Robert Blackford on March 24,
2014, through July 30, 2014. The Court sets fine upon these
violations over the period of ninety[-]eight days in the sum of
Four Hundred Ninety Thousand Dollars ($490,000.00).
67. The Court having also determined that the Defendants
violated the Boone County Zoning Ordinance, hereby assess fine
upon that finding in the sum of Three Hundred Dollars ($300.00)
per day for the period of ninety[-]eight days for a total fine upon
those violations of Twenty Nine Thousand Four Hundred
Dollars ($29,400.00).
68. The Court, hereby finds for the Plaintiffs and against the
Defendants, Robert C. Blackford and Susan J. Blackford, and
enters Judgment in favor of the Plaintiffs and against the
Defendants, jointly and severally, in the sum of Five Hundred
Nineteen Thousand Four Hundred Dollars ($519,400.00), plus
Court Costs of One Hundred Fifty Six Dollars ($156.00) and
attorney fees in the sum of Eight Thousand Seven Hundred
Fifteen Dollars ($8,715.00).
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69. The Court further grants the Plaintiffs’ prayer for injunctive
relief.
(App.18-20).
[15] Thereafter, Blackford, by counsel, filed a motion to correct error, in which he
alleged that the trial court had erred by denying his request for a continuance.
He argued that the denial of his request did not allow him to hire counsel,
precluded him from filing an answer to the amended complaint with
“potential” affirmative defenses and additional counterclaims, and was “in
violation of his procedural due process rights to a fair hearing.” (App. 45).
Blackford also alleged that the trial court’s denial of his request was erroneous
because the trial court had mistakenly concluded that his time to file an answer
had elapsed and that the changes to the amended complaint were non-
substantive. Blackford asserted that the changes to the amended complaint
were, instead, substantive because the original complaint “in no way could
have placed [him] upon reasonable Notice as to the nature and extent of the
drainage allegations that were ultimately raised by the Amended Complaint.”
(App. 47). Blackford asked the trial court to grant him a new trial and to allow
him to file responsive pleadings to the amended complaint. Boone County filed
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a response to Blackford’s motion to correct error. 6 Without holding a hearing,
the trial court denied Blackford’s motion. Blackford now appeals.
Decision
[16] Blackford presents a single issue for our review and contends that the trial court
erred by denying his oral request for a continuance.
[17] Before we address this issue, we pause to note that Blackford neither challenges
the trial court’s conclusion that he had violated the zoning and drainage
ordinances nor does he challenge the $519,400.00 judgment entered against
him. While, at first blush, that amount may seem excessive, a review of the
record reveals that there is significant evidence of the damage and negative
effect on drainage caused by his dumping of dirt in violation of the ordinances
and his willful defiance of multiple stop-work orders. For example, the
evidence reveals that in December 2013, county officials inspected Blackford’s
property, found a significant amount of dirt, and then informed Blackford by
letter of the need to comply with the local ordinances. The record further
shows that after meeting on March 24, 2014 with county officials, who told
Blackford to cease dumping dirt on his property, he dumped approximately
2,000-3,000 additional truckloads of dirt. Additionally, a witness who worked
at a golf course directly south of Blackford’s property testified that, after
6
Boone County’s response is not included in either Blackford’s Appellant’s Appendix or Boone County’s
Appellee’s Appendix.
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learning that Blackford had a stop-work order issued against him, he started to
count the number of tri-axle dump trucks that off-loaded dirt at Blackford’s
property and that between June 3 and July 28, 2014, he counted 596 trucks.
This witness also testified that Blackford was causing more water than normal
to back up onto the golf course after a heavy rain and that dirt from Blackford’s
property had caused dirt to build up around the drain on his property. A police
officer also testified regarding the numerous tri-axle dump trucks he had seen
dumping dirt onto Blackford’s property. The officer testified that the dumping
of dirt on Blackford’s property had caused mud to accumulate on the nearby
road. He also testified that, after a heavy rain, the water would pool on the
road at a depth that could cause people to hydroplane. Finally, we point out
that the trial court imposed fines under the ordinances only from the date that
Blackford personally met county officials while it could have included dates
prior to that.
[18] We now turn to Blackford’s challenge to the trial court’s denial of his oral
request for a continuance. Pursuant to our Indiana Trial Rules, “[u]pon [a]
motion” to continue a trial filed by a party, a trial court has “discretion” to
“postpone[] or continue[]” the trial. Ind. Trial Rule 53.5. “[A] trial court shall
grant a continuance upon motion and ‘a showing of good cause established by
affidavit or other evidence.’” Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind.
2009) (quoting Ind. Trial Rule 53.5) (emphasis added). “A trial court’s decision
to grant or deny a motion to continue a trial date is reviewed for an abuse of
discretion, and there is a strong presumption the trial court properly exercised
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its discretion.” Id. “A denial of a motion for continuance is [considered to be
an] abuse of discretion only if the movant demonstrates good cause for granting
it.” Id. “However, no abuse of discretion will be found when the moving party
has not demonstrated that he or she was prejudiced by the denial.” Riggin v.
Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). “There are
no mechanical tests for deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found in the circumstances
present in every case, particularly in the reasons presented to the trial judge at
the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786, 790 (Ind. Ct.
App. 2014) (quoting Ungar v. Sarafite, 376 U.S. 575, 589-590 (1964), reh’g
denied).
[19] Continuances to allow time for additional preparation are generally disfavored
and require a showing of “good cause” and how “it is in the interests of
justice.” Williams v. State, 681 N.E.2d 195, 202 (Ind. 1997). See also Clodfelder v.
Walker, 125 N.E.2d 799, 800 (Ind. 1955) (explaining that a motion for
continuance should be made at the earliest practicable time after knowledge of
the necessity for a continuance). Furthermore, “[a] continuance requested for
the first time on the morning of trial is not favored.” Lewis v. State, 512 N.E.2d
1092, 1094 (Ind. 1987).
[20] When arguing that the trial court abused its discretion, Blackford first contends
that the trial court’s denial of his continuance request, which was based on his
assertion that he wanted to hire an attorney, resulted in a violation of his due
process rights. Secondly, he contends that the trial court’s denial of his
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continuance request was erroneous because the trial court found that his
opposition response served as his answer to the amended complaint and that his
time to file an answer to the amended complaint had passed.
[21] Boone County argues that the trial court did not abuse its discretion by denying
Blackford’s continuance request because he “did not show, by affidavit or other
evidence, a good cause to request the continuance.” (Boone County’s Br. 17).
Boone County also contends that the trial court’s ruling was not an abuse of
discretion because Blackford knew of the drainage ordinance violation
allegations and “had sufficient time to prepare a defense, request a continuance,
or hire counsel prior to the trial date.” (Boone County’s Br. 17).
[22] We agree with Boone County that the trial court’s denial of Blackford’s
continuance request made on the day of trial was not an abuse of discretion and
did not violate any potential right to due process, and we find that our Indiana
Supreme Court’s opinion in Gunashekar to be instructive to the resolution of this
issue. In that case, the plaintiff filed a complaint, alleging that the defendants
had breached a contract and had committed conversion and deception.
Gunashekar, 915 N.E.2d at 954. The defendants, who were not native English
speakers, originally had an attorney, but he filed a motion to withdraw his
appearance eight weeks before trial. Id. The trial court granted the motion six
weeks before the trial, leaving the defendants without an attorney. Id. Eleven
days before trial, the defendants filed a pro se motion to continue the trial,
stating that they wanted to hire new counsel. Id. The defendants did not attach
an affidavit or present evidence explaining their interim efforts to hire a new
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attorney. Id. The trial court denied the motion and held the scheduled bench
trial. Id. The trial court entered judgment against the defendants in the amount
of $147,337.04 and an additional $296,520.00 for treble damages and attorney
fees. Id. at 955.
[23] On appeal, the defendants argued, in part, that the trial court had abused its
discretion by denying their motion to continue the trial to hire a new attorney.
Id. Our Court agreed and reversed the trial court’s judgment and remanded for
a new trial. Id. (citing Gunashekar v. Grose, No. 02A03-0712-CV-614, 2008 WL
3311840, slip op. at 2 (Ind. Ct. App. Aug. 12, 2008), trans. granted). Our
Indiana Supreme Court, however, granted transfer and held that the trial court
did not abuse its discretion by denying the defendants’ motion to continue the
trial. Id. 955-56. Our supreme court explained that “the trial court was entitled
to consider how long the trial had been scheduled, the lack of explanation for
eight weeks of apparent inaction, the relative simplicity of a three-witness bench
trial, and the potential that the request was a conscious gaming of the system.”
Id. at 956.
[24] Like in Gunashekar, the trial court here did not abuse its discretion by denying
Blackford’s request to continue the bench trial. Here, Blackford, who had been
an attorney and former prosecutor, represented himself throughout the
proceeding and filed various pleadings, including an answer, counterclaim,
motion to dismiss, and opposition response to the motion to amend. After the
trial court had set the case for a bench trial, the Plan Commission filed a motion
to amend its complaint on July 3, 2014, seeking to add the Drainage Board as a
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plaintiff. The trial court granted the motion on July 21, and Blackford received
notice of the order on July 24. Blackford, however, waited until the morning of
trial on July 30, 2014, to make an oral request for the trial court to continue the
trial, contending that he had just become aware of the drainage ordinance
violation issue on July 24 and needed to hire counsel to deal with this new
complex issue. However, both the original complaint and the amended
complaint contained allegations that Blackford had violated the drainage
ordinance. When the trial court asked Blackford how the case had become
more complex when the violation of the drainage ordinance was already at
issue in the original complaint, he acknowledged that the nature of the
complaint had not changed because paragraph ten in the original complaint
contained an allegation that he had violated the drainage ordinance. Blackford
asserted that he had “sought counsel” on June 28, but he gave no further
explanation or details regarding whether he was close to retaining an attorney
or whether he needed additional time to do so. (Tr. 7). Before denying
Blackford’s oral request, the trial court noted that it had, at a May 30 pretrial
hearing, asked Blackford about hiring counsel, and he indicated that he had
stated that he did not intend to do so.
[25] Blackford’s continuance request was done by an oral motion on the day of trial
and not by a motion supported by an “affidavit or other evidence” or a
“showing of good cause” as required by Trial Rule 53.5. “[A] pro se litigant is
held to the same established rules of procedure that trained counsel is bound to
follow.” Gunashekar, 915 N.E.2d at 955. Because Blackford did not articulate
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any good cause for the continuance or show that he would be prejudiced, and
given the deference to the trial court’s decision on this matter, we conclude that
the trial court did not abuse its discretion by denying Blackford’s oral request
for a continuance made on the morning of trial. See, e.g., Gunashekar, 915
N.E.2d at 956 (affirming the trial court’s denial of a motion to continue the
bench trial); Fetner v. Maury Boyd & Assocs., Inc., 563 N.E.2d 1334, 1338 (Ind. Ct.
App. 1990) (affirming the trial court’s denial of the defendant’s motion to
continue to hire counsel and holding that the denial of the motion to continue
did not constitute a violation of due process), reh’g denied, trans. denied.
[26] We now turn to Blackford’s argument that the trial court erred by denying his
request to continue the trial so that he could file an answer to the amended
complaint. Blackford contends that the trial court erred by treating his
opposition response as an answer to the amended complaint. He also contends
that the trial court erred by finding that the time to file an answer to the
amended complaint had passed, and he asserts that pursuant to Trial Rule 15,
he had twenty days from July 21, 2014 to file his answer to the amended
complaint.
[27] Here, at the beginning of trial, Blackford told the trial court that the amended
complaint had made things “more complicated” and that he needed time to do
more research. When Blackford asserted that he should be given more time so
that he could file an answer to the amended complaint, the trial court disagreed.
The trial court noted that Blackford had already responded to the Plan
Commission’s motion to amend and that he had addressed the drainage issue.
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(Tr. 7). The trial court stated that it “assumed” that Blackford’s opposition
response was an answer to the amended complaint, and it “deem[ed] the
Complaint answered.” (Tr. 10, 11). The trial court also stated that Blackford’s
twenty-day period for filing an answer had already passed because the amended
complaint was deemed filed as of July 3, 2014, when the Plan Commission filed
the motion to amend.
[28] In regard to Blackford’s argument that the trial court erred by treating his
opposition response as an answer to the amended complaint, we note that
“courts are not bound by a party’s characterization of a motion[.]” YTC Dream
Homes, Inc. v. DirectBuy, Inc., 18 N.E.3d 635, 642 (Ind. Ct. App. 2014) (quoting
Stephens v. Irvin, 734 N.E.2d 1133, 1135 n. 1 (Ind. Ct. App. 2000)), opinion aff'd
in relevant part, vacated in part, 30 N.E.3d 701 (Ind. 2015). A review of
Blackford’s opposition response reveals that it generally stated that he opposed
the Plan Commission’s motion to amend, but he did not assert any specific
objection to the addition of the Drainage Board. Instead, Blackford addressed
some of the allegations, denying that he had personally placed any of the dirt on
his property or that he had violated an ordinance. He also asserted affirmative
defenses, including lack of jurisdiction and failure to state a claim. Thus, we
cannot conclude that the trial court erred in the manner asserted by Blackford.
[29] Turning to Blackford’s argument that the trial court erred by finding that the
time to file an answer to the amended complaint had passed, we note that Trial
Rule 15(A) addresses amendments to pleadings and answers thereto. This rule
provides in relevant part:
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[A] party may amend his pleading only by leave of court or by
written consent of the adverse party; and leave shall be given
when justice so requires. A party shall plead in response to an
amended pleading within the time remaining for response to the
original pleading or within twenty [20] days after service of the
amended pleading, whichever period may be the longer, unless the
court otherwise orders.
(Emphasis added).
[30] We note that the CCS indicates that the amended complaint was deemed filed
as of July 21, when the trial court entered the order granting the Plan
Commission’s motion. Thus, less than twenty days would have passed from
that July 21st date to the July 30th bench trial. Nevertheless, Trial Rule 15(A)
provides that this twenty-day period can be altered if “the court otherwise
orders.”
[31] Moreover, we cannot agree that the twenty-day time limit set forth in Trial Rule
15(A) is controlling on the determination of whether the trial court erred by not
allowing Blackford to file an additional pleading in addition to his opposition
response, which, as discussed above, the trial court treated as the functional
equivalent of an answer. Here, the original complaint contained an allegation
that Blackford had violated the drainage ordinance, but that complaint did not
list the Drainage Board, the real party in interest to the claim, as a plaintiff.
Thereafter, the Plan Commission sought to amend the complaint to add the
Drainage Board as a party plaintiff, stating that it was “an interested and an
indispensable party to this action.” (App. 26).
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[32] “Our rules of trial procedure promote the participation of the real party interest
in litigation.” Inlow v. Henderson, Daily, Withrow & DeVoe, 787 N.E.2d 385, 398
(Ind. Ct. App. 2003), trans. denied. “A real party in interest . . . is the person
who is the true owner of the right sought to be enforced.” Hammes v. Brumley,
659 N.E.2d 1021, 1030 (Ind. 1995), reh’g denied. Indiana Trial Rule 17(A)
provides that “[e]very action shall be prosecuted in the name of the real party in
interest.” This rule further provides that:
No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a
reasonable time after objection has been allowed for the real
party in interest to ratify the action, or to be joined or substituted
in the action. Such ratification, joinder, or substitution shall have
the same effect as if the action had been commenced initially in
the name of the real party in interest.
[33] Trial Rule 17(A). “As evidenced by the clear language in Trial Rule 17, it
encourages allowing the real party in interest to be joined or substituted in the
action[.]” Hammes, 659 N.E.2d at 1030. “Trial Rule 17 also clearly states that
the substitution of a real party in interest relates back to the date the initial
complaint was filed.” Id. Because the amended complaint added the Drainage
Board as the real party in interest for the drainage ordinance violation issue,
pursuant to Trial Rule 17(A), that substitution of the real party in interest
related back to the date the initial complaint was filed. Thus, under the specific
facts of this case, the trial court did not err when it refused to allow Blackford to
file an answer to the amended complaint.
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[34] Affirmed.7
Crone, J., and Brown, J., concur.
7
At the end of their Appellee Brief, Boone County included a single-sentence request, asking this Court to
“award them the reasonable attorney fees under Ind. Appellate Rule 67(C).” (Boone County Br. 26).
Appellate Rule 67 applies to “costs,” not attorney fees. See Ind. App. R. 67(A). This rule further provides
that “[u]pon a motion . . . within sixty (60) days after the final decision of the Court of Appeals, the Clerk
shall tax costs[.]” App. R. 67(A) (emphasis added). These costs include: (1) the filing fee; (2) the cost of
preparing the Record on Appeal, including the Transcript and Appendix; and (3) postage expenses for service
of documents with the Clerk. App. R. 67(B). Because Appellate Rule 67 pertains to costs, which must be set
out by a party entitled to costs and requested after a final decision, we decline Boone County’s request at this
time.
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