author: BARNES, Judge.

text:
    WELTY BUILDING COMPANY, LTD. and, Ohio Farmers Insurance Company, Appellants-Defendants, v. INDY FEDREAU COMPANY, LLC, et al., Appellees-Plaintiffs.
    No. 49A02-1206-PL-493.
    Court of Appeals of Indiana.
    April 4, 2013.

      V. Samuel Laurin, III, Bryan H. Babb, Kevin M. Quinn, Bose McKinney & Evans, LLP, Indianapolis, IN, Marc A. Sanchez, Phillip J. Truax, Frantz Ward, LLP, Cleveland, OH, Attorneys for Appellants.
    Karl L. Mulvaney, Gerard L. Gregerson, Aaron E. Rose, Bingham Greenebaum Doll, LLP, Indianapolis, IN, Attorneys for Appellee, Barth Electric Co., Inc.
    Tasha R. Roberts, Wong Fleming, P.C., Indianapolis, IN, Attorney for Appellee, Roth Bros., Inc.
    Geoffrey M. Grodner, Jared S. Sunday, Mallor Grodner, LLP, Bloomington, IN, Attorneys for Appellee, E.P.I. of Cleveland, Inc.
    Gene R. Leeuw, John M. Mead, Leeuw Oberlies & Campbell, P.C., Indianapolis, IN, Attorneys for Appellee, Elbrecht Investments, LLC d/b/a Elbrecht Concrete.
   OPINION

BARNES, Judge.

Case Summary

Welty Building Company Ltd. (“Welty”) and Ohio Farmers Insurance Company (“OFIC”) appeal the trial court’s denial of their motions to stay proceedings and to compel arbitration. We reverse and remand.

Issue

The sole restated issue before us is whether the trial court properly concluded that Welty was not entitled to demand that its disputes with its subcontractors be submitted to arbitration.

Facts

.Welty, which is based in Ohio, was the general contractor on a project to construct a new FBI headquarters in Indianapolis. The owner of the building was Indy Fedreau Company, LLC (“Fe-dreau”), which also is based in Ohio and would lease the building to the FBI. OFIC provided a contract performance bond on Welty’s behalf for the project. Welty hired the following twenty-one subcontractors to work on the project: Architectural Granite & Marble, Inc. (“AGM”), Barth Electric Co, Inc. (“Barth”), Becker Landscape Contractors, Inc. (“Becker”), Brown Sprinkler Corporation (“Brown”), C.E. Reeve Roofing (“C.E. Reeve”), Certified Floorcovering Services, Inc. (“Certified”), Circle B Construction ■ Systems, LLC (“Circle B”), Door & Hardware Installation of Indiana, Inc. (“Door & Hardware”), Elbrecht Investments, LLC (“Elbrecht”), E.P.I. of Cleveland, Inc. (“E.P.I.”), FA Wilhelm Construction Co., Inc. (“FA Wilhelm”), Gate Precast Company and Gate Precast Erection (collectively “Gate”), JACCO & Associates, Inc. (“JAGCO”), Koch Corporation (“Koch”), Leach & Russell Mechanical Contractors, Inc. (“Leach & Russell”), Long Fence Company, Inc. (“Long Fence”), Porta-King Building Systems (“Porta-King”), Roth Bros., Inc. (“Roth”), Schindler Elevator Corporation (“Schindler”), and Sexson Mechanical Corporation (“Sexson”).

Each of Welty’s subcontracts contained the following provisions regarding mediation and arbitration in Article 37 of the subcontract:

Any claim arising out of or related to this Subcontract, except claims as otherwise provided in Article 24 and except those waived in this Subcontract, shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
⅝: >¡: ⅝ ⅝ ⅜ ⅝
The Subcontractor agrees that the Contractor may, in its sole discretion, elect arbitration with respect to any dispute or claim arising out of or relating to this Subcontract or the breach or performance hereof, and if arbitration is so elected by the Contractor, then the arbitration sháll be conducted and decided by a private arbitrator....

Appellant’s App. pp. 307-08.

Fedreau became dissatisfied with Welty’s performance on the project. On November 16, 2011, Fedreau filed suit against Welty, as well as against OFIC on its bond, alleging breach of contract, breach of bond, fraud, and bad faith. Among other claims, the complaint alleged that Welty ran up the cost of the project by requesting various subcontractors to perform unnecessary work in excess of the original scope of the project without prior approval from Fedreau. Fedreau also asserted that Welty was not timely paying its subcontractors, despite full payment for approved work from Fedreau to Welty, which ultimately resulted in numerous mechanic’s liens being recorded by subcontractors against the property. Fedreau demanded that Welty obtain removal of the liens “by discharging them through payment or by substituting a bond for the lien(s),” but Welty did not do so. Id. at 82. The complaint sought damages from Welty and/or OFIC in the amount of $6,401,015.18.

The complaint also noted that on March 28, 2011, Elbrecht had sued Fedreau to foreclose its mechanic’s lien; that complaint also named Welty as a co-defendant for breach of contract and Gate as a co-defendant because of its own mechanic’s lien filing that was on record at the time. On April 25, 2011, Welty filed a motion in that case “To Stay All Court Proceedings Pending Mediation and Arbitration.” El-brecht App. p. 53. The trial court granted this motion. Elbrecht and Welty participated in mediation, unsuccessfully, on February 15, 2012. Elbrecht immediately requested that Welty nominate an arbitrator, and Welty responded by letter on February 21, 2012: “Welty has not elected whether Elbrecht[’s] payment claim will proceed through arbitration.” Appellant’s App. p. 347. Gate also participated in mediation with Welty on February 15, 2012, which likewise was unsuccessful.

Welty also engaged in informal settlement negotiations with Leach & Russell regarding payment of its invoices, and in particular whether Welty was required to pay Leach & Russell without Fedreau having first paid to Welty all of Welty’s submitted invoices. A letter from Welty to Leach & Russell dated January 6, 2011, stated in part:

Welty maintains that the parties should review and seek agreement on the subcontract accounting and additional/extra scope issues before resorting to formal dispute resolution, which again, is unlikely to be a productive exercise so long as Indy Fedreau refuses to pay for the work Welty and Leach & Russell performed.
That said, if Leach & Russell continues to insist upon mediation, Welty can agree to Richard Kraege as a mediator. But Welty encourages Leach & Russell to first consider a meeting to review the issues and accounting before compelling the parties to incur significant costs to engage in mediation under the circumstances above.

Id. at 514. On January 12, 2012, Leach & Russell agreed to the informal meeting “prior to engaging in mediation.” Id. at 515.

On January 26, 2012, Welty filed an amended counterclaim in the Fedreau case for breach of contract, declaratory judgment, and promissory estoppel. Welty also sought foreclosure of its own mechanic’s lien against the FBI property, in the amount of $6,573,358.58. As part of its mechanic’s lien foreclosure count, which was count II of the counterclaim, Welty joined as defendants all of the above-named subcontractors “to answer as to any interest [they] may have in the Property,” with respect to mechanic’s lien notices that they had filed. Id. at 166-70. The mechanic’s lien foreclosure count also stated, ‘Welty specifically reserves all rights to mandatory mediation and binding arbitration with the Counterclaim Defendants under Article 37 of the subcontracts.” Id. at 170. It further stated that the subcontractors “have been named for the sole purpose of permitting [them] to assert their interest in the Property, and without waiving Welty’s contractual right to mediation and arbitration....” Id.

The declaratory judgment count of Welty’s counterclaim, which was count III, stated, “There exists a controversy regarding Welty’s damages and entitlement under the Contract.” Id. at 171. This count sought a declaration “that, among other things ... Welty is not obligated to satisfy the mechanic’s liens of its subcontractors without full payment by Indy Fe-dreau. ...” Id. at 171-72. This count also stated:

Welty is also entitled to a declaration ... that its mechanic’s lien claim against the property at issue is a valid and subsisting lien against the Property in the amount of $6,573,358.58, ... and that the lien be foreclosed, that the property be sold as if on execution, that Plaintiff and all co-Defendants who have some interest in the property be required to set forth their various claims or be forever barred, that the liens be marshaled and their priority established according to law, and that the proceeds be applied in payment of Welty’s claims and the lien and interest of the other parties.

Id. at 172.

On February 28, 2012, Gate filed a motion “to stay these proceedings pending binding arbitration.” Id. at 180. The motion stated that Welty had elected to arbitrate any dispute with Gate, by virtue of its motion to stay the March 2011 lawsuit pending arbitration. The motion further acknowledged that “Welty’s joining of the Gate Defendants to [the Indy Fedreau-Welty lawsuit and counterclaims] is proper to preserve their claims and priority” but that staying the action was necessary because of Welty’s prior election to arbitrate. Id. at 181. It does not appear the trial court ever ruled on this motion.

A number of subcontractors subsequently filed counterclaims against Welty as part of their answers: Barth, Brown, Certified, Circle B, Door & Hardware, El-brecht, E.P.I., FA Wilhelm, Gate, Koch, and Sexson. The first of these answers/counterclaims was filed on February 14, 2012, and the latest was filed on March 28, 2012.

On April 4, 2012, Welty and OFIC filed their own “Motion to Stay Welty’s Subcontractors’ Claims Against Them Pending Mediation and Arbitration.” App. p. 269. Other subcontractors filed answers to Welty’s counterclaims after this date. The motion only sought a stay of the subcontractors’ counterclaims for payments due and owing against Welty and OFIC. It expressly did not seek a stay of litigation between Fedreau and Welty, and it also did not seek to stay mechanic’s lien foreclosure cross-claims that the subcontractors had filed against Fedreau. The following subcontractors filed or joined in motions opposing Welty and OFIC’s motion to stay: Barth, Becker, Brown, Certified, Circle B, Door & Hardware, El-brecht, E.P.I., FA Wilhelm, JACCO, Leach & Russell, Schindler, and Sexson. The subcontractors specifically contended that Welty had waived the right to insist upon arbitration of the subcontractors’ claims.

On April 25, 2012, counsel for Welty wrote letters to the subcontractors that stated in part, “To the extent we cannot reach an agreement holding your clients claims against Welty in abeyance, Welty elects arbitration of the disputes between them-[I]f we cannot agree on a standstill, liquidating agreement or other arrangement, arbitration will take place in Akron, Ohio.” Id. at 516.

On May 24, 2012, the trial court issued its ruling denying Welty and OFIC’s motion to stay, agreeing with the subcontractors that Welty had waived its contractual right to insist upon arbitration. On June 4, 2012, Welty and OFIC filed a “Motion to Compel Arbitration and Stay Proceedings.” Id. at 549. On June 19, 2012, the trial court ruled that this subsequent motion was “moot” in light of its May 24, 2012 order. Id. at 65. Welty and OFIC initiated this appeal on June 20, 2012. On appeal, a joint appellee’s brief has been filed by Barth, Becker, Brown, C.E. Reeve, Certified, Circle B, Door & Hardware, E.P.I., FA Wilhelm, Gate, Leach & Russell, Roth, and Sexson. Elbrecht has filed its own separate appellee’s brief.

Analysis

None of the parties contend that Article 37 of the subcontracts regarding mediation and arbitration is generally void or unenforceable, or that the disputes between Welty and the subcontractors fall outside its terms. Instead, the subcontractors contend Welty has waived its ability to insist oh arbitration of then* disputes. Even where parties have entered into a valid and enforceable agreement to submit disputes to arbitration, the right to require such arbitration may be waived. Capitol Constr. Servs., Inc. v. Farah, LLC, 946 N.E.2d 624, 628 (Ind.Ct.App.2011). A finding of waiver of the right to arbitrate depends primarily upon whether a party has acted inconsistently with that right. Id. Waiver need not be in express terms and may be implied from the acts, omissions, or conduct of the parties. Id. “In determining if waiver has occurred, courts look at a variety of factors, including the timing of the arbitration request, if dispos-itive motions have been filed, and/or if a litigant is unfairly manipulating the judicial system by attempting to obtain a second bite at the apple due to an unfavorable ruling in another forum.” Id. Waiver of a contractual right, including the right to arbitrate, requires a showing of an intentional relinquishment of a known right. Northern Indiana Commuter Transp. Dist. v. Chicago SouthShore and South Bend R.R., 685 N.E.2d 680, 695 (Ind.1997).

Whether waiver of the right to arbitrate has occurred generally is a question of fact under the circumstances of each case. Id. Regardless, we review de novo a trial court’s ruling on a motion to compel arbitration, as well as similar motions that are of the same effect. Id. This is especially true, given that to the extent the trial court had to resolve a “factual” issue regarding waiver, it did so based entirely upon a paper record and, moreover, there does not appear to be any dispute about the underlying facts of this case. In such cases, there is no appellate deference to a trial court’s factual findings or judgment. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001); Williams v. Tharp, 934 N.E.2d 1203, 1215 (Ind.Ct.App.2010), trans. denied.

We further consider in deciding this case that public policy in Indiana favors enforcement of arbitration provisions. Capitol Constr. Servs., 946 N.E.2d at 628. Additionally, because this case involves interstate commerce by virtue of parties from multiple states, the Federal Arbitration Act and cases decided thereunder applies here. See MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 904 (Ind.2004) (citing 9 U.S.C. §§ 1, 2). Federal policy, like Indiana’s, favors arbitration when possible. Id. at 906. The United States Supreme Court has stated, in light of this policy, that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).

Before turning to the merits, we acknowledge Welty and OFIC’s argument in its opening brief that the trial court should not have even ruled on the waiver issue, but that a ruling on that issue itself should have been submitted to arbitration. See, e.g., Novotny v. Renewal by Andersen Corp., 861 N.E.2d 15, 21 (Ind.Ct.App.2007) (stating that issues such as waiver of an arbitration clause are to be determined during arbitration). As pointed out by Elbrecht, Welty and OFIC did not make this argument before the trial court, although they were well aware that the subcontractors were relying upon waiver to avoid enforcement of the subcontracts’ arbitration provision. Generally, parties cannot raise an argument for the first time on appeal. Leone v. Keesling, 858 N.E.2d 1009, 1015 (Ind.Ct.App.2006), trans. denied. An exception to this rule is a claim that a trial court lacked subject matter jurisdiction, which may be raised at any time. City of East Chicago v. Copeland, 889 N.E.2d 737, 742 (Ind.Ct.App.2005), trans. denied. Although Welty and OFIC generically say the trial court here lacked “jurisdiction” to rule on the issue of waiver, they do not explain how this impacted the trial court’s subject matter jurisdiction to rule on their motion to stay for purposes of arbitration, nor do they make any response in their reply brief to Elbrecht’s claim that they have waived this argument on appeal. As such, we conclude Welty and OFIC have waived their argument that the trial court could not rule on the arbitration waiver issue.

Turning finally to the merits, the subcontractors argue that Welty “elected” to file suit against them, via counterclaims in the Fedreau-Welty lawsuit, without first availing itself (in most cases) of the mediation provision in Article 37 of the subcontracts. This, in turn, resulted in waiver of Welt/s ability to insist upon arbitration of its disputes with the subcontractors, pursuant to the second part of Article 37, according to the subcontractors. The subcontractors also contend that Welty was aware, pre-litigation, that they were making claims for payment from Welty, via proofs of claim filed with OFIC and notices of intention to hold a mechanic’s lien against Indy Fedreau’s property, and essentially that Welty should have been proactive in seeking mediation of all the subcontractors’ claims for payment before the filing of the counterclaims.

The difficulty with the subcontractors’ overall argument is their repeated insistence that Welty “elected” to sue them and deliberately bypassed Article 37 of the subcontract — both its mediation and arbitration provisions — in doing so. Welty argues that its mechanic’s lien foreclosure counterclaim against Indy Fedreau was a compulsory counterclaim under Indiana Trial Rule 13(A). “A compulsory counterclaim is one that ‘arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.’ ” Hilliard v. Jacobs, 927 N.E.2d 393, 401 (Ind.Ct.App.2010) (quoting Ind. Trial Rule 13(A)), trails, denied. The subcontractors have made no attempt to argue that the mechanic’s lien foreclosure counterclaim by Welty against Indy Fedreau was not a compulsory counterclaim, and we see no reason why it would not be.

Moreover, and more importantly, the established law in Indiana is that in a mechanic’s lien foreclosure action, any and all parties with an interest in the property at issue are necessary parties to the action. Potter v. Cline, 161 Ind.App. 349, 361, 316 N.E.2d 422, 429 n. 7 (1974) (citing Demma v. Forbes Lumber Co., 133 Ind.App. 204, 220, 181 N.E.2d 253, 255 (1962)). Indiana Trial Rule 19(A) likewise requires the join-der in any action of any party in whose absence “complete relief cannot be accorded among those already parties,” or if the party “claims an interest relating to the subject of the action” and the party’s absence may “as a practical matter impair or impede his ability to protect that interest” or leave other parties “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations....” Pursuant to these principles, Welty argues that the subcontractors, who themselves had filed mechanic’s lien notices against the Fedreau/FBI property, had to be joined in the mechanic’s lien foreclosure counterclaim against Fedreau for there to be a proper adjudication of the foreclosure. Again, the subcontractors make no counterargument on this point. Thus, it is clear that Welty did not “elect” to sue the subcontractors without first engaging in mediation or arbitration, nor did it voluntarily “institute” a legal proceeding, to use the language of Article 37 of the subcontract. Welty’s hand was forced by Fe-dreau’s filing of the lawsuit against it, at which time Welty was compelled to coun-tersue for foreclosure of its mechanic’s lien and to name the subcontractors as co-defendants on that claim.

The facts of this case are very similar to those addressed by our supreme court in MPACT. In that case, a general contractor was involved in multi-party litigation with its subcontractors and the property owner, including actions for the foreclosure of various mechanic’s liens; the general contractor had not initiated the lawsuit. After about six months of “preparing for litigation,” the general contractor moved to compel arbitration pursuant to its contracts with the property owner and the subcontractors. MPACT, 802 N.E.2d at 904. In assessing whether the general contractor waived the right to arbitrate its disputes with its subcontractors by actively participating in litigation, our supreme court clearly stated, “The filing of counterclaims and cross-claims does not always indicate active participation in litigation.” Id. at 910. Rather, “[a] party should not be held to have waived its right to arbitrate when, in response to a complaint filed against it, it raises counterclaims in order to preserve them.” Id. at 910-11. The court also noted that the general contractor had stated in its original answer that it was not waiving its right to arbitration and that it had never filed a motion to dismiss or for summary judgment before asserting its right to arbitration. Id. at 911. The court concluded, “[t]hese facts show that [the general contractor] acted consistently with its right to arbitrate .... ” Id.

Here, Welty named the subcontractors as necessary co-defendants in its mechanic’s lien foreclosure compulsory counterclaim against Fedreau and in the closely-related declaratory judgment count of the counterclaim, which likewise requested foreclosure of the mechanic’s lien. The counterclaim expressly asserted that Welty was naming the subcontractors as co-defendants “for the sole purpose of permitting [them] to assert their interest in the Property, and without waiving Welty’s contractual right to mediation and arbitration .... ” App. at 170. It does not appear that any substantive activity or discovery took place in the case before Welty filed its initial motion to stay the proceedings for purposes of mediation and/or arbitration, which was filed before even all of the subcontractors had filed answers to Welty’s counterclaim. Welty has never filed any dispositive motions before the trial court, nor can the subcontractors direct us to any unfavorable ruling to which Welty was subjected before it moved to stay the proceedings.

Welty also has consistently and timely invoked its right to mediation and/or arbitration, whether in the present lawsuit or in the earlier-filed lawsuit by Elbrecht. It did in fact engage in mediation with El-brecht and Gate pursuant to that first lawsuit. It was engaged in negotiations with Leach & Russell regarding possible mediation, although that negotiation happened to lead to an informal meeting first. On April 25, 2012, Welty clearly indicated in a letter to all the subcontractors that it intended to pursue arbitration. It is true that Welty may not have always acted instantaneously in invoking its right to arbitration, as evidenced by its February 21, 2012 letter to Elbrecht stating after the failed mediation that it had not yet decided whether to pursue arbitration. We do not believe Welty was required to instantly decide whether to proceed with arbitration, and the letter also clearly did not reject Welty’s right to arbitrate.

The subcontractors do urge that the declaratory judgment count of Welty’s counterclaim was a direct suit against them that did more than merely name them as nominal defendants. They direct us to the language of the count requesting that all co-defendants, which would include the subcontractors, “be required to set forth their various claims or be forever barred-” App. p. 172. This statement, however, came in the context of a mere restatement of the earlier request that Welty’s mechanic’s lien be foreclosed. We believe it is clear that “forever barred” in the declaratory judgment count requests only that the subcontractors’ claims with respect to their mechanic’s liens against Fedreau’s property be forever barred if they did not participate in the action, not that any claims the subcontractors may have against Welty would be forever barred. We also disagree with the subcontractors’ assertion that the filing of the declaratory judgment count was a “disposi-tive motion.” It was only an initial pleading, not a motion to dismiss, or for judgment on the pleadings, or for summary judgment, or any other motion that might immediately terminate litigation.

The subcontractors also argue that Welty should have sought mediation before the litigation in this case ensued because, essentially, Welty was aware that it owed money to the subcontractors that it was unwilling to pay, as a result of its ongoing dispute with Fedreau. Welty’s failure to invoke mediation or arbitration at any time before the present action arose, which it did not initiate but that it was compelled to join, was not a waiver of a right to arbitrate. Rather, this case is akin to Safety Nat’l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986 (Ind.Ct.App.2005), trans. denied. In that case, an insurer failed to respond to five letters from its insured over a one-and-a-half year period notifying it of a pending lawsuit and requesting coverage. Two months after the insured filed a declaratory judgment action against the insurer,- the insurer requested arbitration pursuant to the insurance policy. We held that the insurer’s earlier failure to respond to the five letters from the insured did not constitute a waiver of the right to arbitrate, concluding that mere silence by the insurer did not constitute waiver. Safety Nat’l Cas. Co., 829 N.E.2d at 1004-05. Here, similarly, Welty failed to pay the subcontractors’ submitted bills, but it never gave any indication that it was going to waive its right to insist upon alternative dispute resolution in the event of litigation. Finally, we believe that to the extent the subcontractors believed Welty erred or violated the subcontract by not seeking mediation before arbitration, their remedy would be to insist upon such mediation between them and Welty. The subcontractors, however, are not currently insisting upon mediation with Welty. In other words, Welty is now insisting upon arbitration, the subcontractors are insist-ing upon litigation, and no one is asking for mediation.

The subcontractors also contend that Welty is utilizing Article 37 of the subcontract as a tactic to delay making payment to them. Even if that is true, it is unclear what relevance that should have in this case. Welty’s conduct throughout has been consistent with its right to insist upon arbitration. Additionally, whether Welty is rightfully delaying making payment to the subcontractors goes to the very heart of the merits of this case. And, that is a matter for an arbitrator or arbitrators to decide. We further observe that whether Welty is required to make immediate payment to the subcontractors on their bills under the subcontract is a legally separate and distinct issue from whether Welty is or was required by the Welty-Fedreau contract to keep Fedreau’s property free and clear of any mechanic’s liens. Although those liens may have been related to the subcontractors’ unpaid bills, Welty could have discharged those liens without paying the subcontractors, for example by posting a bond, as noted in Fedreau’s complaint.

In sum, we conclude Welty’s conduct here has been very unlike conduct courts have found in other cases to constitute a waiver of the right to arbitration. See, e.g., St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 588 (7th Cir.1992) (finding waiver where party requesting arbitration waited’ ten months after commencement of lawsuit to request arbitration and did not do so until after filing motion to dismiss or for summary judgment and losing); Tamko Roofing Prods., Inc. v. Dilloway, 865 N.E.2d 1074, 1079-80 (Ind.Ct.App.2007) (finding waiver where party waited until after plaintiff presented evidence during trial to seek arbitration); JK Harris & Co., LLC v. Sandlin, 942 N.E.2d 875, 884-85 (Ind.Ct.App.2011) (finding waiver where party requesting arbitration never partich pated in litigation and waited until after default judgment was entered against it to claim arbitration right), trans. denied. And, according to the United States Supreme Court, we must resolve any doubts here regarding waiver of the right to arbitration against finding such- a waiver. See Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25, 103 S.Ct. at 941. As such, we conclude Welty has not waived its right to insist upon arbitration of the claims against it filed by the subcontractors, and the trial court erred in concluding otherwise.

Of course, requiring arbitration of the claims between Welty and the subcontractors will result in a certain amount of piecemeal litigation of this ease. The subcontractors also invoke the specter of inconsistent results between the arbitra-ble and non-arbitrable issues in this case. Regardless, the FAA requires enforcement of arbitration agreements, even if the result is piecemeal litigation and “notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.” Id. at 20, 103 S.Ct. at 939. To the extent arbitration of issues between Welty and the subcontractors could affect the remainder of the litigation in this case, the trial court would have the discretion under the FAA to stay that remainder pending arbitration after inquiring into “ ‘the risk of inconsistent rulings, the extent to which parties will be bound by the arbitrators’ decision, and the prejudice that may result from the delays.’ ” Volkswagen of America, Inc. v. Sud’s of Peoria, Inc., 474 F.3d 966, 972 (7th Cir.2007) (quoting AgGrow Oils, L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 242 F.3d 777, 783 (8th Cir. 2001)). But a trial court does not have the discretion to refuse to enforce an arbitration agreement where there has been no. waiver of the right to arbitrate. See id. at 971; see also KPMG LLP v. Cocchi, — U.S. -, 132 S.Ct. 23, 24, 181 L.Ed.2d 323 (2011).

On that note, we again observe that OFIC is not a party to the arbitration agreement in the subcontracts, and it has not provided us with an argument as to how or why it should be entitled to the benefit of that agreement. On appeal, in-Welty and OFIC’s joint reply brief, only Welty requests that the subcontractors’ claims against it be submitted to arbitration. We reverse the trial court’s denials of the motions to stay and to compel arbitration and remand with instructions that arbitration be ordered between Welty and the subcontractors and that the litigation between those parties be stayed. ' As for OFIC, it still asserts that the subcontractors’ claims against it should be stayed pending arbitration. The trial court did hot assess whether such a stay only as to OFIC should be ordered; we remand for the trial court to consider that issue, in light of the principles discussed in ’ the previous paragraph.

Conclusion

Welty did not waive its right to insist upon arbitration of its disputes with the subcontractors. We reverse and remand for arbitration between Welty and the subcontractors,. and for the trial court to assess whether the litigation between OFIC and the subcontractors should be stayed pending that arbitration.

Reversed and remanded.

BAKER, J., and RILEY, J., concur.

      . This lawsuit was consolidated into the present case in May 2012.

      . Welty apparently later reached a settlement with Long Fence.

      . Welty and OFIC assert in their reply brief that JACCO did not join in opposition to the motion to stay, but our review of the CCS indicates that it did.

      .On appeal, this leaves AGM, JACCO, Koch, Porta-King, and Schindler without a brief indicating their position in this case. Nonetheless, all parties before the trial court are automatically parties on appeal. See Ind. Appellate Rule 17(A). We also note some confusion in that not all of the parties who are opposing Welty and OFIC on appeal joined in opposing their motion to stay before the trial court. Gate, in fact, had filed its own motion to stay. We need not sort out all of this confusion, or decide whether some parties waived any opposition to Welty and OFIC’s motion to stay, given our ultimate holding that the trial court erred in denying that motion altogether.

      . The subcontractors do assert that OFIC lacks any contractual right to arbitration with them, an assertion that OFIC fails to counteract. We address this issue later in the opinion.

      . The subcontractors argue in part that Welty and OFIC’s original motion to stay was not a motion to compel arbitration. This court, however, has treated other motions, such as motions to dismiss because of an extant arbitration agreement, effectively as motions to compel arbitration. See Capitol Constr. Servs., 946 N.E.2d at 628; Roddie v. North American Manufactured Homes, Inc., 851 N.E.2d 1281, 1284 (Ind.Ct.App.2006). We will treat the original motion to stay as a motion to compel arbitration.

      . As recited earlier, Welty did engage in mediation with Gate and Elbrecht..

      . We acknowledge that this analysis in MPACT may actually be dicta, in that the court had already concluded that the general contractor did not have a contractual right to arbitration of disputes with its subcontractors. Regardless, we assume our supreme court would not have engaged in this analysis of the waiver issue if it did not believe it was legally sound.

      . Although the subcontractors argue that Welty is attempting a "second bite at the apple” by seeking arbitration in this case, they do not direct us to the first bite Welty supposedly took.

      . We thus offer no opinion regarding whether the parties could now be compelled to submit to mediation, if any party requested it.

      . Fedreau had not, at the time of this appeal, moved to stay any part of the proceedings as to it.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under the Pooling and Servicing Agreement Dated as of November 1, 2002, Morgan Stanley ABS Capital I Inc. Trust 2002-HE3, Appellant, v. Patricia HARRIS and Shawn Harris, Appellees.
    No. 34A02-1206-MF-467.
    Court of Appeals of Indiana.
    April 4, 2013.

      Bryan K. Redmond, Feiwell & Hannoy, P.C., Indianapolis, IN, Attorney for Appellant.
    David T. Barid, UAW Legal Services Plan, Kokomo, IN, Attorney for Appellee, Patricia Harris.
    Matthew J. Elkin, Kokomo, IN, Attorney for Appellee, Shawn Harris.
   OPINION

BROWN, Judge.

Deutsche Bank National Trust Company, as Trustee under the Pooling and Servicing Agreement dated as of November 1, 2002, Morgan Stanley ABS Capital I Inc. Trust 2002-HE3 (the “Bank”) appeals the trial court’s dismissal of its cause of action against Patricia Harris and Shawn Harris (together the “Borrowers”) and denial of its motion for relief from the court’s Quiet Title Decree finding that the Bank no longer held any interest in certain real property owned by Borrowers. The Bank raises four issues, which we consolidate and restate as whether the court abused its discretion in denying its motion for relief from judgment and dismissing its cause of action. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Loan

In July 2002, Accredited Home Lenders, Inc. (“Accredited”) made a loan to Borrowers in the original principal amount of $265,000 for the purchase of certain real estate in Howard County, Kokomo, Indiana (the “Property”), and the Borrowers executed a promissory note (the “Note”) and a mortgage (the “Mortgage”) granting Accredited a security interest in the Property. Accredited transferred the Note to the Bank and executed an Assignment of Mortgage dated July 31, 2002. Patricia and Shawn stopped making payments under the Note, according to the Bank, after February 2009 and separated on or about April 2009.

Foreclosure Proceedings

The Bank filed a Complaint on Note and to Foreclose Mortgage on Real Estate on August 13, 2009, alleging that the Borrowers were in default under the Note and that pursuant to the Note and Mortgage the Bank had accelerated the indebtedness due under the Note and requesting a judgment against the Borrowers consisting of the outstanding unpaid principal balance together with interest, late charges, expenses, and reasonable attorney fees, and a judgment ordering the sale of the mortgaged Property. The Bank attached copies of the Note, the Mortgage, and the-Assignment of Mortgage to its complaint as exhibits.

On October 1, 2009, Shawn filed an answer to the complaint, affirmative defenses, and a counterclaim against the Bank. In his counterclaim, Shawn alleged that (1) he believed that all payments due and owing had been paid to the Bank, (2) the Bank did not properly record the Assignment of Mortgage prior to filing the lawsuit, (3) the Bank was fraudulently seeking action against him, (4) the Bank’s complaint violated the Fair Debt Collection Practices Act, (5) the Bank should have communicated with him through his attorney and having failed to do so violated the Fair Debt Collection Practices Act, (6) there was a failure of consideration, (7) the Bank was equitably estopped from its action, and (8) the Bank failed to satisfy conditions precedent entitling Shawn to dismissal. Shawn requested that the court order the Bank to amend its complaint to include an itemized statement alleging the specific default or to dismiss the matter with prejudice against the re-filing of the sáme.

On November 3, 2009, the Bank filed an amended complaint alleging the Borrowers were in default and requesting a judgment against the Borrowers for $244,167.72, the unpaid principal balance of the loan, together with interest, late charges, default-related expenses, and reasonable attorney fees and costs, and a judgment ordering the sale of the Property. The Bank attached copies of the Note, the Mortgage, and the Assignment of Mortgage to its amended complaint as exhibits. Patricia filed an answer to the Bank’s complaint on November 24, 2009. On December 1, 2009, Shawn filed an answer to the Bank’s amended complaint together with affirmative defenses, a counterclaim against the Bank, and a motion to dismiss. ' In this counterclaim, Shawn alleged, in addition to its previous allegations, that the Bank filed its amended complaint one day' late.

The Bank filed an answer to Shawn’s counterclaim and a motion for a more definite statement on December 18, 2009, and Shawn filed a response on January 4, 2010, which stated among other things that assignments must be filed with the County Recorder under Ind.Code § 32-29-1-8, an assignment must have the location and business address of the person to whom the mortgage is transferred or assigned under Ind.Code § 32-29-2-2, that the recorded assignment did not occur until September 2, 2009, about three weeks after the foreclosure proceedings began, and that the assignment did not list such a location or business address.

On February 24, 2010, the Bank filed a response to Shawn’s more definite statement and his motion to dismiss in which the Bank argued that it is the real party in interest and that it complied with the Indiana Trial Rules and Indiana Code in bringing its action. On March 22, 2010, the court ruled in part that the Bank’s amended complaint was not timely filed and that the written instrument that purports to transfer or assign the Mortgage does not state the location or business address of the person to whom the mortgage was transferred or assigned. The court requested the parties to schedule a status conference with the court. On April 16, 2010, upon motion filed by Shawn, the court set a status hearing for May 5, 2010. On May 5, 2010, a status hearing was held at which counsel for the Bank and the Borrowers appeared, and an entry in the court’s chronological case summary (“CCS”) on that date indicates that the “Court will set this matter for summary judgment upon presentation of the appropriate pleadings.” Appellant’s Appendix at 6. There are no entries in the CCS dated from May 5, 2010, until February 23, 2011.

Trial Rule 41(E) Proceedings

The court entered an entry in its CCS on February 28, 2011, which provides:

No action having been taken herein for a period in excess of 60 days, the Court on its own motion, pursuant to TR 41(E), now orders a hearing for March 28, 2011 at 8:30 a.m., for the purpose of dismissal of the complaint, petition, counter-claim, cross-complaint, or other pleadings requesting relief. The Court further directs the parties to appear and show cause, if any, why such pleadings should not be ordered dismissed.

Id. at 6. The CCS entry for February 23, 2011, includes the notation “Notice: A.” Id.

On March 28, 2011, a hearing was held regarding dismissal of the action at which counsel for Patricia and Shawn appeared and counsel for the Bank did not appear. At the hearing, the court stated that “41 ( [E]) hearing results in a dismissal” and that it would “do it if you requested, with prejudice,” but then asked “[w]hy would we have to void anything?” March 28, 2011 Hearing Transcript at 6. Counsel for Shawn stated that the Mortgage “was allegedly transferred,” that “[i]t was improperly done,” that the Mortgage “itself would have to be voided because there is no proper mortgage at this point,” and that “[s]o, basically, it ends up being quiet titled. I would need an Order for quiet title on that one.” Id. at 7. The court stated “Ok,” and Shawn’s counsel further stated that the Bank cannot collect on the Note and that “I guess we are looking to have the promissory note voided” and “then we would need attorney fees or whatever the Court would permit by vertue [sic] of the fair debt collection practices act.” Id. at 7-8. Patricia’s counsel concurred with the position of Shawn’s counsel with the exception that the counterclaim on the Fair Debt Collections Act was brought by Shawn and not by Patricia. At the end of the hearing, the court stated “I will show then [the Bank’s] cause is dismissed ... with prejudice.” Id. at 10. The court then stated “[w]e will now leave it up to you all to set further hearings.” Id.

The entry in the CCS dated March 28, 2011, stated that the Bank failed to appear, that the Borrowers appeared by counsel, and that “Court now orders this CAUSE DISMISSED WITH PREJUDICE.” Appellant’s Appendix at 6. The CCS entry for March 28, 2011, includes the notation “Notice: A.” Id. According to the CCS, on April 28, 2011, counsel for Shawn tendered a proposed quiet title decree which the court examined and approved.

On that same day, the court issued a Quiet Title Decree providing that the court had jurisdiction over the subject matter of the action and over the parties and Property, that the Bank failed to appear on March 28, 2011, that the court had ordered the Bank’s claims dismissed with prejudice, and that according to the court’s March 22, 2010 ruling the Bank’s amended complaint was untimely, the Bank failed to properly comply with the Fair Debt Collections Practices Act, and the Mortgage was not properly assigned because of the failure to properly abide by statute. The Quiet Title Decree further provided:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the [Bank] and all their husbands, wives, widows, widowers, heirs, devisees, successors, assigns, and any and all other persons claiming any right, title or interest in the within described Real Estate by, through or under them or any person or entity, no longer hold any interest by either mortgage or note in the said Real Estate. Title is hereby quieted in and to [the Borrowers] in fee simple absolute in [and] to the real property located in Howard County.

Id. at 145. A CCS entry dated April 28, 2011, indicates: “[Shawn], by Counsel, ... tenders Quiet Title Decree which is submitted, examined, and approved. Court now Orders titled [sic] is hereby quieted in and to [the Borrowers] in fee simple absolute in to the real property located in Howard County; pursuant to written Order.” Id. at 6. The CCS entry for April 28, 2011, includes the notation “Notice: A.” Id.

Request for Relief from Judgment

On March 23, 2012, the Bank filed a motion for relief from judgment pursuant to Trial Rule 60(B) in which it cited to subsections (1) and (6) and argued that it did not receive the court’s February 23, 2011 order scheduling the March 28, 2011 hearing, that reinstatement is warranted, and that the Quiet Title Decree should be vacated pursuant to Trial Rule 60(B)(6) because the relief contained in the decree did not conform to the pleadings. In its memorandum in support of its motion, the Bank argued that the Quiet Title Decree is void and should be vacated pursuant to Trial Rule 60(B)(6) because it does not conform to the pleadings of the case, that even if the decree was not void it still should be vacated pursuant to Trial Rule 60(B)(1) or (8) because there was no dis-positive motion before the court seeking relief when it was entered, and that the Bank has a meritorious defense in part because none of the circumstances existed which are listed in Ind.Code § 32-30-3-14 governing quiet title actions. The Bank further argued that the court should vacate the dismissal order pursuant to Trial Rule 41(F) and 60(B)(1) because the Bank did not receive the court’s February 23, 2011 order. The Bank attached several documents as exhibits to its memorandum.

In addition, the Bank stated in its memorandum that Litton Loan Servicing, LP (“Litton”) was the Bank’s servicing agent prior to February 23, 2011, and that Litton had communications with Patricia’s counsel. The Bank pointed to an attached exhibit containing an e-mail message dated November 17, 2010, sent by Patricia’s counsel to the Bank’s counsel stating that he had received telephone calls from a person representing Litton and asking whether he had authorization to talk to that person directly and a response e-mail message dated December 17, 2010, from the Bank’s counsel to Patricia’s counsel stating that he should feel free to communicate directly with Litton to discuss potential foreclosure prevention agreements. The Bank further stated that, on December 30, 2010, its counsel was instructed to refrain from taking action by virtue of the ongoing loss mitigation discussions and that the file of counsel’s firm remained on “hold” through the date of the dismissal order. Id. at 153. In support of this statement, the Bank pointed to attached exhibits of affidavits from two attorneys who worked for the firm representing the Bank. The Bank also stated that Litton sent a letter to the Borrowers dated February 15, 2011, advising that they did not qualify for a loan modification agreement but that other loan workout options existed and invited them to contact Litton to discuss the options. The Bank included the letter as an attached exhibit.

Shawn and Patricia filed separate mem-oranda in opposition to the Bank’s motion for relief from judgment. In his memorandum, Shawn stated in part that his counsel never received the February 15, 2011 notice that Litton would not modify the loan; that by notice on August 15, 2011, Litton gave notice that Ocwen Loan Servicing, LLC (“Ocwen”) would be servicing the loan; that Ocwen informed Shawn by letter on September 6, 2011 that he owed a debt; that he informed Ocwen in several letters that the Mortgage and Note were invalid; that Ocwen sent Shawn an account statement dated October 17, 2011; and that he and Patricia went through a divorce and that an addendum to the decree addressed the Property and the Note and Mortgage. Shawn also argued that the Bank filed its motion for relief from judgment less than one week before the one-year deadline under Trial Rule 60(B) elapsed, and that the Borrowers would be prejudiced by the reinstatement of the cause which would “wreak havoc on the Court’s Property Order” in their divorce proceedings. Id. at 179. Shawn attached a number of documents to the memorandum, including the affidavit of Patricia’s counsel, the letters sent to and received from Ocwen, and the CCS related to the Borrower’s divorce proceedings. In her memorandum, Patricia asserted that, although the Bank argued that no motion was before the court seeking to quiet title, such a motion was made at the hearing on March 28, 2011.

The Bank filed a supplemental memorandum in which it argued that, although the present matter related to the Note and Mortgage, the Borrowers “simply did not seek a Quiet Title Decree in their pleadings or in any way reference such a cause of action” and therefore that the Quiet Title Decree is void and should be vacated pursuant to - Trial Rule 60(B)(6). The Bank further argued that Patricia’s assertion that an oral motion was presented in open court on March 28, 2011 fails to cure the procedural defects relating to the Quiet Title Decree, that even if one of the parties had submitted a motion for a quiet title decree the Decree entered by the court still does not conform to the pleadings, and that, at best, the Borrowers could have sought leave to file a counterclaim seeking to quiet title pursuant to Trial Rule 13(E) and Ind. Code § 32-30-3-14(c)(2)(C).

On May 17, 2012, the court held a hearing on the Bank’s motion for relief from judgment at which the parties presented arguments consistent with the arguments in their memoranda. The Bank also argued that the court’s dismissal of the cause of action with prejudice does not prevent or preclude the Bank from raising subsequent claims under the Mortgage if there are subsequent and separate alleged defaults. The Bank argued that, even after the court’s dismissal under Trial Rule 41(E), the Bank’s interest “was far more than simply a cloud on title” and that it constituted a property interest. The Bank argued that the parties could institute an independent action or file a motion to file a belated counterclaim asserting a quiet title action. Shawn also argued that he did not believe that the relief provided by the court was somehow outside the pleadings.

On May 25, 2012, the court denied the Bank’s motion for relief from judgment. In its' order, the court found in part that any failure to respond by the Bank can be attributed to a failure of the case management system of the Bank’s attorneys and that the Bank did not file its motion for relief until nearly a year had passed and “should not benefit from its long slumber.” Id. at 10. The Bank now appeals.

ISSUE AND ARGUMENTS

The issue is whether the trial court erred or abused its discretion in denying the Bank’s motion for relief from judgment' and dismissing its cause of action. The Bank maintains that the court abused its discretion in dismissing the cause of action for failure to prosecute under Trial Rule 41(E) and erred in denying its motion for relief from the Quiet Title Decree. Specifically, the Bank asserts that the trial court erred in failing to vacate the Quiet Title Decree under Trial Rule 60(B)(6) or (8) and argues that the Quiet Title Decree was entered without motion and without notice to the Bank, is void as it does not conform to the pleadings, is invalid as there is no statutory basis for the decree, and is based on the incorrect argument that the Bank could not reinstitute an action under the Note and Mortgage based upon a new default by the Borrowers. The Bank' fur-' ther argues that it was stripped of a valuable property right without due process of law. The Bank also maintains that it was not given notice of the March 28, 2011 hearing and thus had no opportunity to appear, that the factors this court considers when reviewing a dismissal order here require reinstatement, and that its claim is meritorious.

Patricia argues that the Bank’s motion was limited to Trial Rules 60(B)(1) and (6), that reversal of the court’s dismissal under Trial Rule 41(E) is not justified under the facts, that the Bank’s counsel in its affidavits merely assert that the law firm’s business records did not include a saved copy of the notices and that no assertion was made that the' notices were not sent or were sent to an incorrect address, and that the Borrowers would be prejudiced by a ruling vacating the court’s orders and that reinstatement would wreak havoc on their property order in the divorce proceedings. Patricia further asserts that the Bank’s statement that Litton had engaged in communications with her counsel to facilitate loss mitigation is a gross mischaracterization of the facts and that, although her counsel was contacted via voicemail by Litton and received authorization from the Bank to contact Litton directly, no discussions arose as a result of the authorization. Patricia argues that, even if the Bank’s counsel was instructed to put the matter on hold in December 2010, the instruction does not excuse inaction before that date nor does it eliminate the need for the Bank’s counsel to monitor the court’s actions. Patricia also asserts that at the March 28, 2011 hearing, Shawn’s counsel requested that the court void the Note and Mortgage and that Patricia’s counsel joined in the request. Patricia also states that the Bank failed to show that the Quiet Title Decree did not conform to the pleadings, that it is axiomatic that the validity of a mortgage is at issue in a foreclosure proceeding, that the validity of the Note and Mortgage were challenged by counsel for both of the Borrowers in their answer and affirmative defenses, and that the remedy ordered by the court was sought by the Borrowers.

Shawn argues that the court’s dismissal was reasonable, that the Borrowers relied upon the order and are prejudiced by the Bank’s motion, that the CCS indicates that the clerk sent notices regarding all matters to the Bank, and that the Bank was not denied due process. Shawn further contends that the Quiet Title Decree was not void under Trial Rule 60(B) as the trial court had jurisdiction to enter such an order, that the decree is voidable rather than void, that the Bank failed to show a meritorious defense, and that the Bank waived its argument under Trial Rule 60(B)(8).

In its reply brief, the Bank maintains that Shawn, in his counterclaim, included affirmative defenses and that neither Shawn nor Patricia in their responsive pleadings even remotely sought a quiet title decree or to comply with the requirements of Ind.Code § 32-30-8-14.

DISCUSSION

The trial court dismissed the Bank’s cause of action on its own motion pursuant to Ind. Trial Rule 41(E). Trial Rule 41(E) provides in part:

[W]hen 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 plaintiffs costs if the plaintiff shall not show sufficient cause at or before such hearing.

Trial Rule 41(F) provides: “For good cause shown and within a reasonable time the court may set aside a dismissal without prejudice. A dismissal with prejudice may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B).”

Ind. Trial Rule 60(B) provides in part that “[o]n motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons: (1) mistake, surprise, or excusable neglect, ... (6) the judgment is void ...,” or “(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).” A motion shall be filed not more than one year after the judgment was entered for purposes of Trial Rule 60(B)(1) and within a reasonable time for purposes of Trial Rule 60(B)(6) and (8), and a movant filing a motion for reasons under Trial Rule 60(B)(1) and (8) must allege a meritorious claim or defense.

The burden is on the movant to establish grounds for Trial Rule 60(B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind.2010). A motion made under Rule 60(B) is addressed to the equitable discretion of the trial court; the grant or denial of the Rule 60(B) motion will be disturbed only when that discretion has been abused. Id. at 740-741 (citation and quotation marks omitted). An abuse of discretion will be found only when the trial court’s action is clearly erroneous, that is, against the logic and effect of the facts before it and the inferences which may be drawn therefrom. Id. at 741 (citation and quotation marks omitted). A motion for relief from judgment under Rule 60(B) is not a substitute for a direct appeal. Id. at 740. Rule 60(B) motions address only the procedural, equitable grounds justifying relief from the legal finality of a final judgment, not the legal merits of the judgment. Id. “If a judgment is void, whether from faulty process or otherwise, a T.R. 60(B) claimant need not show a meritorious defense or claim.” Moore v. Terre Haute First Nat’l Bank, 582 N.E.2d 474, 477 (Ind.Ct.App.1991), reh’g denied. This court normally employs an abuse of discretion standard in reviewing a trial court’s ruling on a motion to set aside a judgment; however, when a motion for relief from judgment is made pursuant to Trial Rule 60(B)(6) alleging that the judgment is void, discretion on the part of the trial court is not employed because either the judgment is void or it is valid. D.L.D. v. L.D., 911 N.E.2d 675, 678 (Ind.Ct.App.2009), reh’g denied, trans. denied.

With respect to dismissal for failure to prosecute under Trial Rule 41(E), this court has stated that we will reverse such a dismissal 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. The purpose of Trial Rule 41(E) is “to ensure that plaintiffs will diligently pursue their claims” and to provide “an enforcement mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff to push his case to resolution.” Id. (citing Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind.Ct.App.1993), reh’g denied). “The burden of moving the litigation is upon the plaintiff, not the court. It is not the duty of the trial court to contact counsel and urge or require him to go to trial, even though it would be within the court’s power to do so.” Id. (citing Benton, 622 N.E.2d at 1006 (quotation omitted)). “Courts cannot be asked to carry cases on their dockets indefinitely and the rights of the adverse party should also be considered. [The defendant] should not be left with a lawsuit hanging over his head indefinitely.” Id. (citing Hill v. Duckworth, 679 N.E.2d 938, 939-940 (Ind.Ct.App.1997) (quotation omitted)).

We generally balance several factors when determining whether a trial court abused its discretion in dismissing a case for failure to prosecute. Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Ind., LLP, 929 N.E.2d 853, 857 (Ind.Ct.App.2010) (citing Office Env’ts, Inc. v. Lake States Ins. Co., 833 N.E.2d 489, 494 (Ind.Ct.App.2005); Belcaster, 785 N.E.2d at 1167); see also Westlake v. Benedict, 469 N.E.2d 27 (Ind.Ct.App.1984), reh’g denied, trans. denied. These factors include: (1) the length of the delay; (2) the reason for the delay; (3) the degree of the plaintiffs personal responsibility; (4) the degree to which the plaintiff will be charged for the acts of his attorney; (5) the amount of prejudice to the defendant caused by the delay; (6) the presence or absence of a lengthy history of having deliberately proceeded in a dilatory fashion; (7) the existence and effectiveness of sanctions less drastic than dismissal which fulfill the purposes of the rules and the desire to avoid court congestion; (8) the desirability of deciding the case on the merits; and (9) the extent to which the plaintiff has been stirred into action by a threat of dismissal as opposed to diligence on the plaintiffs part. Am. Family Ins. Co., 929 N.E.2d at 857 (citing Belcaster, 785 N.E.2d at 1167 (citing Lee v. Friedman, 637 N.E.2d 1318, 1320 (Ind.Ct.App.1994))). “The weight any particular factor has in a particular case depends on the facts of that case.” Id. (citing Belcaster, 785 N.E.2d at 1167 (quoting Lee, 637 N.E.2d at 1320)). “However, a lengthy period of inactivity may be enough to justify dismissal under the circumstances of a particular case, especially if the plaintiff has no excuse for the delay.” Id. (citing Belcaster, 785 N.E.2d at 1167 (citing Lee, 637 N.E.2d at 1320)). Although Indiana does not require trial courts to impose lesser sanctions before applying the ultimate sanctions of default judgment or dismissal, we view dismissals with disfavor, and dismissals are considered extreme remedies that should be granted only under limited circumstances. Id. (citing Turner v. Franklin Cnty. Four Wheelers Inc., 889 N.E.2d 903, 905 (Ind.Ct.App.2008)).

Dismissal of Cause of Action

Under the circumstances of this case, we conclude that the trial court abused its discretion when it imposed the harshest possible sanction in dismissing the Bank’s lawsuit. Although we acknowledge and do not condone the failure of the Bank or its counsel to appear at the March 28, 2011 hearing or the delayed filing of the Bank’s March 23, 2012 motion for relief from judgment, we nevertheless find that some of the factors set forth in Bel-caster outweigh other considerations in this case.

Following the initiation of the lawsuit by the- Bank in August 2009, the Bank filed an amended complaint in November 2009, filed an answer to Shawn’s counterclaim and a motion for a more definite statement in December 2009, and a response to Shawn’s more definite statement and his motion to dismiss in February 2010. In addition, the Bank appeared at the status hearing on May 5, 2010, and the CCS entry for that date indicated that the court would consider the matter for summary judgment upon the presentation of appropriate pleadings.

We further observe that, although there is some disagreement regarding the nature and extent of any loan modification discussions between the Borrowers and their respective counsel and the Bank and its loan service providers, there is at least an indication based upon the affidavits of the Bank’s counsel and an e-mail exchange attached to the Bank’s memorandum that in December 2010, several months before the court’s March 28 and April 28, 2011 orders, the Bank’s counsel indicated to Patricia’s counsel on December 17, 2010, that he should feel free to communicate directly with Litton to discuss potential foreclosure prevention agreements and that the Bank instructed its counsel on December 30, 2010 to refrain from proceeding with the cause while the Bank’s serving agent was exploring loss mitigation alternatives. Also, the Borrowers received a letter from Litton dated February 15, 2011, which was eight days before the court’s February 23, 2011 CCS entry scheduling a hearing under Trial Rule 41(E) and which stated that the Borrowers did not qualify for a loan modification agreement but that Litton offered a number of other loan workout options, including short sales, deeds-in-lieu, and settlements, and stated that the Borrowers could contact its office to discuss the available options or a hotline for further counseling. We decline to find that the absence of activity in the CCS between May 2010 and February 2011, or the delay in the proceedings from December 2010 until the court’s February 23, 2011 CCS entry or the March 28, 2011 hearing was unreasonable in light of the nature of the case and the circumstances revealed in the attachments to the parties’ various filings and memoranda.

In addition, the original principal loan amount under the Note in July 2002 was $265,000, and according to a letter from Ocwen to the Borrowers the total unpaid debt of the Borrowers as of September 6, 2011, including principal, interest, late charges, collection costs, and escrow advances was $303,975.71. While the Property and the Bank’s security interest in the Property pursuant to the Mortgage, as well as the parties’ obligations pursuant to the Note, were important to the division of the marital estate in the Borrowers’ divorce proceedings, we decline to find that the reinstatement of the Bank’s claim or the reversal of the Quiet Title Decree would prejudice the Borrowers to an extent that such a reinstatement or reversal would be unreasonable or unjust under the circumstances.

Further, beyond the possible delay at issue here, the record does not reveal that the Bank defied any court orders, and the record reveals that the trial court did not attempt sanctions which were less drastic than dismissal and which would have fulfilled the purposes of the rules and the desire to avoid court congestion. We also observe that dismissal under the circumstances of this case is inconsistent with Indiana’s oft-stated policy of having cases decided on their merits whenever possible. See Am. Family Ins. Co., 929 N.E.2d at 858-859 (noting the insurance company did not defy .any court orders, that the trial court did not attempt sanctions which were less drastic than dismissal and which would have fulfilled the purposes of the rules and the desire to avoid court congestion, and that dismissal was inconsistent with Indiana’s policy of having cases decided on their merits whenever possible) (citing Turner, 889 N.E.2d at 908 (holding that the trial court abused its discretion in dismissing the appellant’s complaint where the record revealed no undue delay, bad faith or dilatory motive, and no repeated failure to cure a deficiency); Rueth Dev. Co. v. Muenich, 816 N.E.2d 880, 887 (Ind.Ct.App.2004) (reversing and holding that the trial court abused its discretion in dismissing the appellant’s complaint under Ind. Trial Rule 41(E) after analyzing the factors set forth in Beleaster and determining that the factors favored allowing the appellants to prosecute their claim), trans. denied).

The Quiet Title Decree

With respect to the Quiet Title Decree, the trial court and the Borrowers do not cite to authority for the proposition that the court may void, cancel, or terminate the Note or the Mortgage in dismissing the Bank’s claim for failure to prosecute-under Trial Rule 41(E). We observe, as noted by the Bank’s counsel at the hearing on the motion for relief from-judgment, that we have held that a lender is not barred from initiating successive foreclosure claims for subsequent and separate alleged defaults by a borrower under a promissory note where the initial foreclosure action by the lender was dismissed with prejudice pursuant to Trial Rule 41(E), and that subsequent and separate alleged defaults under the note create a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action. See Afolabi v. Atlantic Mortg. & Investment Corp., 849 N.E.2d 1170, 1171-1175 (Ind.Ct.App.2006). The Borrowers may continue to fail to make payments under the Note, and the Bank’s foreclosure action was not adjudicated. Thus, even if the court dismissed the Bank’s current action with prejudice under Trial Rule 41(E), the Bank would not be precluded from later filing a claim under the Note and Mortgage for subsequent and separate alleged defaults by the Borrowers. See id. The court erred in finding, in the Quiet Title Decree, that the Bank no longer held any interest in the Property under the Mortgage or, to the extent it ruled on the Note, that the Note was cancelled or unenforceable by the Bank.

Further, we observe that, while a trial court has broad discretion in framing its orders so that the relief awarded conforms to the circumstances of each particular case, its discretion is limited to relief based on the issues presented. Mitchell v. Stevenson, 677 N.E.2d 551, 561-562 (Ind.Ct.App.1997), trans. denied. When a judgment does not conform to the pleadings, it is beyond the jurisdiction of the trial court and, therefore, void. Id. (citing Holmes v. Randolph, 610 N.E.2d 889, 843-844 n. 11 (Ind.1993)). See also Altevogt v. Brand, 963 N.E.2d 1146, 1151 (Ind.Ct.App.2012) (noting that the trial court did not consider an argument by the plaintiff that a trail was dedicated as a public easement because it was not raised in the pleadings, that the plaintiffs did not directly deny that the claim was not presented in their complaint and instead argued that their third amended complaint sought to quiet title to the trail and that this theory supported their claim of title, that the plaintiffs failed to cite any support for that argument, and that the argument was waived); New Life Comm. Church of God v. Adomatis, 672 N.E.2d 433, 438 (Ind.Ct.App.1996) (noting that the church chose not to seek the remedy of rescission and that in light of the church’s election the court had no authority to order rescission) (citing Holmes, 610 N.E.2d 839 (a judgment which does not conform to the pleadings is beyond the court’s jurisdiction and void); Surprise v. Porter, 226 Ind. 375, 80 N.E.2d 107 (1948) (jurisdiction of the court was limited by the pleadings before the court invoking that jurisdiction); Kemp v. Woods, 363 Mo. 427, 434, 251 S.W.2d 684, 688 (1952) (“The powers of a court of equity are limited to the cause of action and issues made by the pleadings .... Under a general prayer for relief, an equity court may not grant relief inconsistent with the pleadings and trial theory and repugnant to the specific prayers for relief.”)).

While Shawn asserted in his counterclaim and subsequent more detailed statement that the Bank did not properly record the Assignment of Mortgage prior to filing the lawsuit, the pleadings filed by the Borrowers did not make a claim to quiet title under Ind.Code § 32-30-3. At the March 28, 2011 hearing on the court’s Trial Rule 41(E) motion, Shawn’s counsel stated that the Mortgage “was allegedly transferred,” that “[i]t was improperly done,” that the Mortgage “itself would have to be voided because there is no proper mortgage at this point,” and that “[s]o, basically, it ends up being quiet titled. I would need an Order for quiet title on that one.” March 28, 2011 Hearing Transcript at 7. Shawn’s counsel also stated “And, one of the (inaudible) permissible is to avoid the promissory note itself, at this point, if it’s allegedly been transferred,” that “[t]hey can’t collect on it anyway ... [b]ecause of the mortgage finding ...that “I guess we are looking to have the promissory note voided,” and that “[w]e have to have the mortgage cleared off by quiet title.” Id. at 7-8. The Borrowers did not cite at the hearing and do not cite on appeal to authority for the proposition that the verbal statements or requests by the Borrowers at the March 28, 2011, hearing on whether the cause should be dismissed for failure to prosecute constituted a claim, counterclaim, or pleading to quiet title to the Property. See Fox Dev’t, Inc. v. England, 837 N.E.2d 161, 164 n. 1 (Ind.Ct.App.2005) (“Under Indiana Trial Rule 7(A), the term ‘pleadings’ means a complaint and an answer, a reply to a denominated counterclaim, an answer to a cross-claim, a third-party complaint, and an answer to a third-party complaint.”). The court and the parties do not cite to authority for the proposition that the court may void, cancel, or terminate a party’s obligation under a promissory note or a lender’s security interest under a mortgage as part of a dismissal for failure to prosecute under Trial Rule 41(E), which would, in effect, amount to an order in favor of the Borrowers on the merits of the validity or enforceability of the loan documents, where those issues were not adjudicated or raised by the Borrowers. As previously mentioned, even if the court dismissed the Bank’s current action with prejudice under Trial Rule 41(E), the Bank would not be precluded from later filing a claim under the Note and Mortgage in connection with separate alleged defaults by the Borrowers. We therefore conclude that the court did not have the authority to enter the Quiet Title Decree to the extent that it ruled or ordered that the Bank no longer held any interest in the Property under the Mortgage or that the Note was cancelled, and the court erred or abused its discretion in denying the Bank’s motion for relief from judgment on that basis.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s April 28, 2011 Quiet Title Decree and the court’s March 28, 2011 entry dismissing the Bank’s lawsuit and remand with instructions that the trial court reinstate the Bank’s cause of action and for further proceedings consistent with this opinion.

Reversed and remanded.

BAILEY, J., and VAIDIK, J., concur.

      . The copy of the Assignment of Mortgage attached to the Bank's complaint indicates that it was executed by Accredited on July 31, 2002, and does not contain a file-stamp or other information indicating that it was recorded in the mortgage or other records of the county.

      . The copy of the Assignment of Mortgage attached to the Bank's amended complaint bears a file-stamp showing that the document had been filed in the office of the Howard County, Indiana, Recorder on- September 2, 2009'.

      .Ind.Code § 32-29-1-8 provides that "[a]ny mortgage, of record or any part of thé mortgage may be assigned by the mortgagee or any assignee of the mortgage, either by an assignment entered on the margin of the record, signed by the. person making the assignment and attested by the recorder, or by a separate instrument executed and acknowledged before any person authorized to take acknowledgments, and recorded in the mortgage records of the county.” Ind.Code § 32-29-2-2 provides that "[i]n order to be recorded, a written instrument that transfers or assigns a mortgage under this chapter must state the location and business address of the person to whom the mortgage is transferred or assigned."
      Also, Ind.Code § 32-29-8-1 provides that "[i]f a suit is brought to foreclose a mortgage, the mortgagee or an assignee shown on the record to hold an interest in the mortgage shall be named as a defendant,” and Ind.Code § 32-29-8-2 provides in part that “[a] person who: (1) is assigned a mortgage and fails to have the assignment properly placed on the mortgage record ... is bound by the court's judgment or decree as if the person were a party to the suit.”

      . In the September 6, 2011 letter, Ocwen stated that its records reflected that, as of that date, the total current unpaid debt of the Borrowers was $303,975.71, which consisted of $244,167.72 of principal, $47,272.47 of interest, $2,201.14 of late charges, $2,549.50 of collection costs, and $7,784.88 of escrow advances.

      . Ind.Code § 32-30-3-14(c) provides in part:
      "A person who institutes a proceeding ... may name an individual described in subsection (b) as a defendant if public records ... disclose the following circumstances: ... (2) There exists: ... (C) a cloud'upon ... the title of the real estate due to a defective or inaccurate legal description of- the real estate.”

      . The Bank does not indicate that its counsel was aware or unaware that Litton sent the February 15, 2011 letter to the Borrowers.

      . As noted by the Bank in its memorandum and at the hearing on its motion for relief, the Borrowers did not seek permission to file an amended counterclaim or other pleadings.

      . We need not address any issues related to whether the Borrowers are currently in default under the Note or whether the Mortgage was properly assigned to the Bank. These and related issues may be addressed as necessary by the trial court on remand.


text:
    In the Matter of David E. SCHALK, Respondent.
    No. 53S00-1104-DI-244.
    Supreme Court of Indiana.
    April 15, 2013.
   PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Wayne S. Trock-man, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: In 2007, Respondent represented a criminal defendant (“Client”), who was charged with possession of methamphetamine. Respondent wanted to prove that the confidential informant involved in the case was himself dealing in drugs. Client gave Respondent the names of two friends, “LE” and “RG.” Respondent met with LE, RG, and a juvenile who came with them. Respondent convinced them that the purchase was legitimate and none of them would get into trouble. He gave a voice recorder to RG, along with $200 for the drug purchase. LE and RG told Respondent they had purchased $200 worth of marijuana from the informant. LE testified later that they had actually purchased only $50 worth of marijuana, smoked it, and kept the rest of the money. LE and RG gave Respondent a folded newspaper that they represented, falsely, to contain the marijuana. Respondent declined to take the package, asking RG and LE to hold on to the package while he tried, unsuccessfully, to arrange with law enforcement to take possession of it.

On April 30, 2008, Respondent was charged with conspiracy to possess marijuana, a class D felony, and attempt to possess marijuana, a class A misdemeanor (“Respondent’s criminal case”). Respondent’s own criminal case was pending at the time Client’s case was pending. The judge in the Client’s case determined that Respondent had a conflict of interest and disqualified him from representing Client. With different counsel, Client pled guilty to the methamphetamine charges. Respondent later reappeared as his attorney and filed a petition for post-conviction relief, which was denied. Respondent then appealed on behalf of Client. The Court of Appeals disqualified Respondent from representing Client in the appeal.

Respondent waived a jury trial in his own criminal case in return for dismissal of the felony count. After a bench trial the court found Respondent guilty of misdemeanor attempt to possess marijuana. The Court of Appeals affirmed, and this Court denied transfer. See Schalk v. State, 943 N.E.2d 427 (Ind.Ct.App.2011), trans. denied.

Facts in aggravation include: (1) Respondent solicited others to commit a criminal act, which put them at risk of arrest or physical danger; (2) Respondent has no appreciation for the wrongfulness of his conduct; (3) Respondent made false statements or statements with reckless disregard for their truth regarding the integrity of the judges of the trial court and Court of Appeals; (4) Respondent’s assertions that his criminal prosecution was based upon vindictiveness by law enforcement authorities is frivolous; and (5) Respondent improperly interfered with the discovery process in the disciplinary proceeding.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: Respondent’s illegal attempt at a drug sting without the assistance of law enforcement, aggravated by his complete lack of any insight into his misconduct and his repeated and unfounded attacks on those involved in his criminal case and this disciplinary proceeding, demonstrate Respondent’s need for a substantial period of suspension followed by a rigorous reinstatement proceeding before resuming practice.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than nine months, without automatic reinstatement, beginning May 24, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. Respondent’s request for oral argument is denied. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Bruce A. CARR, Respondent.
    No. 64S00-1301-DI-54.
    Supreme Court of Indiana.
    April 19, 2013.
   PUBLISHED ORDER IMPOSING RECIPROCAL DISCIPLINE

The Indiana Supreme Court Disciplinary Commission filed a “Verified Notice of Foreign Discipline and Petition for Issuance of an Order to Show Cause,” advising that Respondent was disciplined by the State of Illinois and requesting, pursuant to Indiana Admission and Discipline Rule 23(28), that reciprocal discipline be imposed in this state. On January 28, 2013, this Court issued an “Order to Show Cause,” to which Respondent has not responded.

Respondent was admitted to practice law in Indiana and in Illinois. On November 19, 2012, the Supreme Court of Illinois found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, Respondent was suspended from the practice of law in Illinois for nine months, effective December 10, 2012.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(e), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent.

If Respondent is reinstated to practice in Illinois, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect.

The Clerk of this Court is directed to forward notice of this Order to Respondent or Respondent’s attorney, to the Indiana Supreme Court Disciplinary Commission, to the Supreme Court of Illinois, to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Mark E. WATSON, Respondent.
    No. 84S00-1201-DI-55.
    Supreme Court of Indiana.
    April 19, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Respondent admits to five counts of misconduct occurring from 2009 through 2011. Respondent converted $1,500 in client fees paid to Respondent’s law firm, he converted nearly $6,900 in money orders given to him by several clients for payment to the trustee in their bankruptcy cases, and he made unauthorized charges for personal use on the firm’s credit card. .

The parties cite the following facts in mitigation: (1) Respondent has no prior disciplinary history; (2) Respondent made complete restitution to his firm and to the bankruptcy trustee before the Commission filed its verified complaint; and (3) Respondent is in therapy for impulse control, substance abuse and behavior associated with his misconduct.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
8.4(b): Committing criminal conversion, and by committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresen- • tation.

Discipline: The parties propose the appropriate discipline is suspension for 18 months without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 18 months, without automatic reinstatement, beginning May 31, 2013. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of- the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a- copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DICKSON, C.J., who dissents, believing that the agreed punishment is insufficient in light of the admitted misconduct.


author: MAY, Judge.

text:
    Verdyer CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1202-CR-66.
    Court of Appeals of Indiana.
    Feb. 28, 2013.
    Timothy. J. O’Connor, O’Connor & Auersch, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

MAY, Judge.

•The State petitions for rehearing in Clark v. State, 978 N.E.2d 1191 (Ind.Ct.App.2012), where we reversed Clark’s conviction of Class D felony battery. The State was required to prove, as an element of that offense, that Clark was eighteen or older when he battered a child younger than fourteen.

As evidence of his age, the State provided two documents from a social worker. One, “Preliminary Report of Alleged Child Abuse or Neglect,” lists Clark as “Other Person Responsible for Child(ren)” and shows his age as twenty-three. Id. at 1193. The other document, “Social Work ED Assessment Plan Final Report,” includes in its narrative the statement “Mother has a boyfriend of 9 months Ver-dyer Clark age 23.” Id. The source of the social worker’s information about Clark’s age was not clear from the record.

The State argued on appeal that the hearsay statements by the social worker were admissible under Ind. Evidence Rule 803(4), as statements “made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. at 1195-96 (emphasis added in Clark). We held the statements were not admissible under that hearsay exception, as the social worker was the declarant and she was not a person “seeking medical diagnosis or treatment.” Nor was it apparent why evidence of Clark's age was “reasonably pertinent” to the diagnosis or treatment of the infant victim. Id. at 1197.

On rehearing, the State asserts we held “a social worker would always be a declar-ant in child abuse cases, even when the social worker is merely a scribe.” (Appel-lee’s Petition for Rehearing at 1) (emphasis added). It further asserts we held “the age of the perpetrator is never pertinent to the medical diagnosis or treatment.' ” (Id. at i) (emphasis added). We grant rehearing to explicitly restate the limited holdings in that decision.

On rehearing, the State asserts it is “evident,” (Appellee’s Petition for Rehearing at 4), the information came from the victim’s mother and the social worker “was merely the means by which information from Mother was recorded.” We acknowledge the social worker’s report did indicate the victim’s mother was the source of some of the information she obtained. But the record is silent on the source of her information about Clark’s age, and we are limited by that record. See Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind.Ct.App.1992) (“[m]atters outside the record cannot be considered by the court on appeal. We must decide the case on the record before us, and cannot speculate as to the actual facts of a ease”) (citation omitted).

Here, the record and argument did not permit us to decide whether a social worker would “always” be a declarant in child abuse cases, and we did not so hold. We leave for another day the determination whether or when a social worker is a de-clarant in a child abuse case.

Nor did we hold “the age of the perpetrator is never pertinent to the medical diagnosis or treatment.” Appellee’s Petition for Rehearing at i) (emphasis added). In our original decision we said only that the information in the record before us about Clark’s age had no “apparent relevance to a diagnosis of the child’s injuries.” 978 N.E.2d at 1197 (emphasis added). The relevance was not apparent because on appeal, the State offered no “explanation why information about Clark’s age might be relevant to a diagnosis of the child’s injuries.” Id. at 1196 n. 7 (emphasis in original). Again, a determination whether the age of a perpetrator is relevant to a child victim’s medical diagnosis or treatment is best left to another case.

In light of the record and the State’s argument on appeal, we conclude that we correctly decided the question presented in the first instance, and we therefore affirm our opinion in all material respects.

BAKER, J., and SHEPARD, Sr. J., concur.