Don Campbell v. Anonymous Hospital A, Anonymous Hospital B, and Anonymous Physical Therapist (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Sep 22 2015, 10:27 am
this Memorandum Decision shall not be
Sep 22 2015, 10:27 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 APPELLEE,
Anonymous Hospital A
Don Campbell
Greencastle, Indiana
Robert J. Palmer
May • Oberfell • Lorber
Mishawaka, Indiana
ATTORNEY FOR APPELLEES,
Anonymous Hospital B and
Anonymous Physical Therapist
David M. McTigue
Herendeen Kowals & McTigue
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Don Campbell, September 22, 2015
Appellant, Court of Appeals Cause No.
71A03-1410-CT-355
v. Appeal from the St. Joseph
Superior Court
Anonymous Hospital A, The Honorable Jenny Pitts Manier,
Anonymous Hospital B, and Judge
Anonymous Physical Therapist, Trial Court Cause No.
Appellees. 71D05-1408-CT-272
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Barnes, Judge.
Case Summary
[1] Don Campbell appeals the dismissal of his proposed medical malpractice
complaint for failure to prosecute. We affirm.
Issue
[2] Campbell raises three issues, which we consolidate and restate as whether his
proposed complaint was properly dismissed.
Facts
[3] On December 19, 2012, Campbell, while represented by counsel, filed a
proposed medical malpractice complaint with the Indiana Department of
Insurance alleging that Anonymous Hospital A, Anonymous Hospital B, and
Anonymous Physical Therapist (collectively “the Appellees”) were negligent.
On March 13, 2014, Campbell filed an amended proposed complaint correcting
Anonymous Hospital A’s name. In May 2014, Campbell’s attorney withdrew
his representation of Campbell and forwarded Campbell’s address on Ebeling
Drive in South Bend to the Appellees.
[4] On August 19, 2014, Anonymous Hospital A filed a motion for preliminary
determination to compel discovery and/or dismiss Campbell’s proposed
complaint with prejudice for failure to prosecute. On August 26, 2014,
Anonymous Hospital B and Anonymous Physical Therapist also moved for
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preliminary determination to compel discovery and/or dismiss Campbell’s
proposed complaint with prejudice for failure to prosecute.
[5] The Appellees’ motions detailed their efforts to compel discovery before and
after Campbell’s attorney withdrew and alleged that Campbell had failed to
comply with or respond to any of their requests. On September 3, 2014, the
trial court held a hearing on the Appellees’ motions. Campbell did not appear
at that hearing. On September 5, 2014, the trial court issued an order granting
the Appellees’ motions to dismiss with prejudice.
[6] On September 10, 2014, Campbell, acting pro se, filed an emergency motion to
reconsider the dismissal indicating that, on July 30, 2014, he informed the
Department of Insurance that he was incarcerated in the St. Joseph County Jail
and sent copies of the letter to the Appellees’ attorneys. Campbell filed two
more motions to reconsider and, on October 2, 2014, Campbell filed a notice of
appeal. Campbell moved to proceed in forma pauperis. The trial court granted
Campbell’s motion to proceed in forma pauperis in part but ordered Campbell
to pay for any transcript. No transcript of the September 3, 2014 hearing was
transmitted to this court.
[7] On February 23, 2015, we issued an order requiring Campbell to file an
amended notice of appeal requesting the transcript and to provide evidence of
payment for the transcript. On March 16, 2015, Campbell filed an amended
notice of appeal and indicated that, although he cannot afford a transcript, it is
not necessary to resolve the appeal. Eventually, Campbell filed an appellant’s
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brief and an appendix, and the Appellees filed a joint appellees’ brief and
appendix. However, no transcript was prepared.
Analysis
[8] Campbell challenges the dismissal of his proposed medical malpractice
complaint for failure to prosecute. As an initial matter, we note that in Indiana
Campbell proceeds pro se and contends that he should be held to a less
stringent standard. However, it is well settled that “a litigant who chooses to
proceed pro se will be held to the same rules of procedure as trained legal
counsel and must be prepared to accept the consequences of his action.”
Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).
[9] As the Appellees point out, Campbell has failed to comply with the Indiana
Appellate Rules. First, Appellate Rule 46(A)(8)(b) requires that the argument
for each issue include a concise statement of the standard of review, which
Campbell has not provided. Appellate Rule 46(A)(8)(a) requires that the
appellant’s contentions be supported by cogent reasoning and “citations to the
authorities, statutes, and the Appendix or parts of the Record on appeal relied
on . . . .” Although Campbell’s brief includes citations to federal authorities, he
provides no citation to Indiana authority regarding dismissal for failure to
prosecute. Additionally, Campbell’s brief is filled with factual assertions that
are not supported by the record on appeal.
[10] Further, Campbell has not provided us with a transcript of the September 3,
2014 hearing in accordance with the appellate rules and as ordered by this court
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on February 23, 2015. Additionally, Campbell’s appendix lacks many of the
documents relevant to our review and is not verified as required by Appellate
Rule 50.
[11] “It is a cardinal rule of appellate review that the appellant bears the burden of
showing reversible error by the record, as all presumptions are in favor of the
trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468
(Ind. Ct. App. 2006). “The appellant bears the burden of presenting a record
that is complete with respect to the issues raised on appeal.” Graddick v.
Graddick, 779 N.E.2d 1209, 1210 (Ind. Ct. App. 2002). “While we prefer to
decide cases on their merits, we will deem alleged errors waived where an
appellant’s noncompliance with the rules of appellate procedure is so
substantial it impedes our appellate consideration of the errors.” Shepherd, 819
N.E.2d at 463. Referring to Appellate Rule 46, we have acknowledged that we
will not consider an appellant’s assertion on appeal when he or she has failed to
present cogent argument supported by authority and references to the record as
required by the rules. Id. “If we were to address such arguments, we would be
forced to abdicate our role as an impartial tribunal and would instead become
an advocate for one of the parties. This, clearly, we cannot do.” Id.[12] On appeal, Campbell does not address his failure to respond to the discovery
requests made before 2014 and argues only that he did not receive letters from
the Appellees following his moves in early 2014 and his incarceration in July
2014. However, in light of the lack of transcript, the insufficient appendix, and
the deficiencies in his brief, we must conclude that Campbell has not met his
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burden of showing that the trial court erred in dismissing his proposed
complaint.
Conclusion
[13] Campbell has not established that the trial court erred in dismissing his
proposed complaint for failure to prosecute. We affirm.
[14] Affirmed.
Kirsch, J., and Najam, J., concur.
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