rose-keen-v-terminix-international-company-limited-partnership ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Oct 30 2015, 9:51 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEES
Rose Keen Jennifer Kalas
Chesterton, Indiana Hinshaw & Culbertson LLP
Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rose Keen, October 30, 2015
Appellant-Plaintiff, Court of Appeals Case No.
64A05-1504-CT-160
v. Appeal from the Porter Superior
Court
Terminix International Company The Honorable Roger V.
Limited Partnership, Bradford, Judge
Servicemaster Residential Trial Court Cause No.
Commercial Services Limited 64D01-1008-CT-8454
Partnership, and Timothy
Slocum,
Appellees-Defendants.
Brown, Judge.
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[1] Rose Keen, pro se, appeals the trial court’s entry of summary judgment in favor
of Terminix International Company Limited Partnership, Servicemaster
Residential Commercial Services Limited Partnership, and Timothy Slocum
(together, the “Appellees”). We dismiss Keen’s appeal.
Procedural History
[2] In August 2010, Keen filed a complaint against the Appellees alleging they
negligently discharged pesticide or other chemicals in a home where she was
present and that as a result she sustained personal injuries. On July 22, 2014,
the Appellees filed a motion for summary judgment together with designated
evidence and a memorandum in support of the motion. In August or
September 2014, Keen filed a motion for an enlargement of time, and the court
granted the motion, extending the time for Keen to file a response until October
17, 2014. On October 2, 2014, Keen’s counsel filed a motion to withdraw
appearance, and the following day the court granted the motion and granted
Keen until November 7, 2014 to respond to the Appellees’ motion for summary
judgment. On November 5, 2014, Keen filed a response to the summary
judgment motion as well as another motion for enlargement of time. On
November 13, 2014, the Appellees filed a motion for hearing, and the court
scheduled a hearing for March 4, 2015.
[3] On February 11, 2015, Keen filed a Motion to Delay Decision on Summary
Judgment requesting the court to delay any decision until new interrogatories
could be answered by all of the Appellees. On February 19, 2015, the court
denied Keen’s motion and ordered that the hearing on Appellees’ motion for
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summary judgment would remain scheduled for March 4, 2015. On March 4,
2015, the court held the scheduled summary judgment hearing. On March 18,
2015, the court granted the Appellees’ motion for summary judgment on all
claims asserted in Keen’s complaint. Keen now appeals.
Discussion
[4] The Appellees argue that the appellant’s brief filed by Keen is utterly devoid of
any reference to the record on appeal or to an appendix, that she cites no
authority in support of her analysis and provides no cogent reasoning, “instead
offering only two paragraphs of speculation that a former Terminix employee
might be able to provide testimony helpful” to her, and thus that her argument
is waived. Appellee’s Brief at 7.
[5] A pro se litigant is held to the same established rules of procedure that trained
legal counsel are bound to follow, and the fact that a litigant proceeds pro se
does not excuse the litigant from complying with appellate rules. Foster v.
Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). Although we
prefer to dispose of cases on their merits, where an appellant fails to
substantially comply with the appellate rules, then dismissal of the appeal is
warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). This
court has discretion to dismiss an appeal for the appellant’s failure to comply
with the Rules of Appellate Procedure. See Miller v. Hague Ins. Agency, Inc., 871
N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will exercise our
discretion to reach the merits when violations are comparatively minor, if the
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parties commit flagrant violations of the Rules of Appellate Procedure we will
hold issues waived, or dismiss the appeal.”), reh’g denied.
[6] Keen has failed to comply with the requirements of the Rules. Appellate Rule
46(A)(5) governs the statement of case and provides that “[p]age references to
the Record on Appeal or Appendix are required in accordance with Rule
22(C).” Keen’s statement of the case in her appellant’s brief does not include
any citations to the record or appendix. Appellate Rule 46(A)(6) governs the
statement of facts and provides that “[t]he facts shall be supported by page
references to the Record on Appeal or Appendix in accordance with Rule
22(C).” Keen’s statement of facts is contained on three pages and includes
citations to a deposition in only the final paragraph of the section. Keen’s
statement of facts does not include appropriate citation to the record on appeal
or appendix as required by Appellate Rule 46(A)(6).
[7] Further, Keen’s claim is not supported by cogent argument or citation to
relevant authority. Appellate Rule 46(8)(a) provides that “[t]he argument must
contain the contentions of the appellant on the issues presented, supported by
cogent reasoning” and that “[e]ach contention must be supported by citations to
the authorities, statutes, and the Appendix or parts of the Record on Appeal
relied on . . . .” Appellate Rule 46(8)(b) provides that the argument must
include “a concise statement of the applicable standard of review” and “a brief
statement of the procedural and substantive facts necessary for consideration of
the issues presented on appeal, including a statement of how the issues relevant
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to the appeal were raised and resolved by any . . . trial court.” This court has
previously stated:
We demand cogent argument supported with adequate citation
to authority because it promotes impartiality in the appellate
tribunal. A court which must search the record and make up its
own arguments because a party has not adequately presented
them runs the risk of becoming an advocate rather than an
adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A
brief should not only present the issues to be decided on appeal,
but it should be of material assistance to the court in deciding
those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind.
1985). On review, we will not search the record to find a basis
for a party’s argument . . . nor will we search the authorities cited
by a party in order to find legal support for its position.
Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997).
[8] Keen appears to claim that the trial court erred in denying her Motion to Delay
Decision on Summary Judgment and states in part that no one “caught the
mistake that the interrogatories were not signed under oath,” that “[i]t’s been
years and it’s not fair to [her] or to Tim Slocum the Defendant or to Patrick
Shannon, Terminix’s representative,” that “I know things now that I did not
know years ago,” that “I’m sure that the Defendant and Terminix’s
representative might have information now that they did not have years ago or
even changed their way of thinking as to what they thought was correct then –
they now see differently,” and that “[i]t’s not correct to allow these
interrogatories as valid.” Appellant’s Brief at 13-14. Keen has failed to
advance her arguments with cogent reasoning or citations to relevant authority
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and the record. Her appellant’s brief and reply brief cite only to the Federal
Rules of Civil Procedure, and she cites no Indiana caselaw or rules. Addressing
Keen’s claims on the merits would require us to make and advance arguments
on her behalf. Therefore, we dismiss Keen’s appeal. See Keller, 549 N.E.2d at
373-374 (dismissing appeal because the appellant failed to provide cogent
argument with adequate citation of authority).
Conclusion
[9] For the foregoing reasons, we dismiss Keen’s appeal.
[10] Dismissed.
Riley, J., and Altice, J., concur.
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