Gary W. Moody v. City of Franklin ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Mar 02 2012, 9:07 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
GARY W. MOODY MICHAEL R. AUGER
Franklin, Indiana Franklin, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY W. MOODY, )
)
Appellant, )
)
vs. ) No. 41A04-1106-PL-294
)
CITY OF FRANKLIN, )
)
Appellee. )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Loyd, Judge
The Honorable Marla K. Clark, Magistrate
Cause No. 41C01-1105-PL-40
March 2, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Gary W. Moody, pro se, appeals the trial court’s order denying his petition for
preliminary injunction against the City of Franklin (the City). Moody presents several issues
for our review. Due to the inadequacy of the appellate materials and argument provided by
Moody, however, we dismiss the appeal.
We dismiss.
On May 5, 2011, Moody filed a petition for injunction to restrain the City from
awarding contracts for its 2011 Paving Program. The primary basis of the injunction sought
by Moody was his belief that Trent Newport, the newly-appointed City Engineer, was not
directly supervising the 2011 Paving Project. Following a hearing, at which limited evidence
was presented, the trial court denied Moody’s request for a preliminary injunction on May
18, 2011, and scheduled the matter for final hearing in September. Moody immediately
appealed from this denial as a matter of right under Ind. Appellate Rule 14(A)(5).
Initially, we observe that Moody filed a similar suit against the City regarding the
2010 Paving Program. In October 2010, Moody unsuccessfully sought to enjoin the City
from continuing with a street-paving project. His suit was based on the fact that the City
Engineer (acting under the official title of Director of Engineering) at the time, Todd A.
Wilkerson, was not a licensed engineer. As he does in the instant case, Moody pointed to
Ind. Code Ann. § 25-31-1-19 (West, Westlaw through 2011 1st Regular Sess.), which
provides that local governments and agencies “may not engage in the construction or
maintenance of any public work involving the practice of engineering for which plans,
specifications, and estimates have not been prepared, certified, and sealed by, and the
construction and maintenance executed under the direct supervision of, a professional
engineer.” Alleging that the paving project involved the practice of engineering, Moody
argued that Wilkerson was not authorized to enter into the challenged contract because he
was not a licensed engineer.1 Another panel of this court recently dismissed Moody’s appeal
as moot, since the act Moody had sought to enjoin had already occurred. Moody v. City of
Franklin, No. 41A05-1011-PL-693 (August 19, 2011).2
In the fall of 2010, apparently as a result of Moody’s inquiries, Trent Newport was
appointed the City’s new Civil City Engineer, and Wilkerson’s title was changed to Project
Supervisor. As set forth above, Moody’s complaint with respect to the 2011 Paving Project
is that in actuality nothing has changed since the 2010 Paving Project and that Wilkerson was
the one designing, contracting, and executing the 2011 Paving Project without the direct
supervision of Newport, a professional engineer. The trial court disagreed, making the
following relevant findings:
6. Trent Newport, P.E., is Defendant’s named City Engineer. Mr.
Newport is a licensed engineer….
7. Mr. Newport invoices Defendant on an hourly basis for his “City
Engineer Services.” These invoices show that Mr. Newport spends a
minimal amount of time on his work for Defendant.
8. The legal advertisement for the Program lists Todd Wilkerson, Project
Supervisor, as the contact for the Program. Mr. Newport is not named
in the advertisement.
9. Mr. Wilkerson is not a licensed engineer.
10. Mr. Wilkerson and Mr. Newport exchanged email communication
regarding the Program.
11. Plaintiff argues that the evidence demonstrates that Mr. Newport is not
1
We note that action has been taken against Wilkerson by the Attorney General before the State Board of
Registration for Professional Engineers for engaging in activities that qualify as practicing professional
engineering without a license during his appointment as City Engineer between 2008 and 2010. Said action
commenced with a Motion for Order to Cease and Desist filed by the Attorney General on October 13, 2011.
2
Moody filed a belated petition for transfer, which our Supreme Court denied on February 6, 2012.
Therefore, his appeal regarding the 2010 Paving Project is final.
3
directly involved in the preparation of the Program contract documents.
12. Taking all inferences in Plaintiff’s favor..., the Court notes that Mr.
Newport has, in fact, performed professional services for Defendant
relating to the Program, as demonstrated by his invoices to Defendant.
13. While the statute requires that a professional engineer “directly
supervise” the preparation of the contract and the work performed
thereunder, there is no specific requirement about the amount of time a
professional engineer must spend on the supervision, nor is there any
prohibition on the professional engineer delegating some tasks to
others, so long as the professional engineer directly supervises the
work.
14. Mr. Newport has spent some time directly supervising the Program.
15. Plaintiff is not entitled to relief on this basis.
Appellant’s Appendix at 7-8.3
We express no opinion regarding the trial court’s findings and conclusion because
Moody has failed to properly present his appeal. As Moody has been reminded in the past,
pro se litigants are held to the same standards as trained legal counsel and are required to
follow procedural rules. See Whatley v. State, 937 N.E.2d 1238 (Ind. Ct. App. 2010).
Moody’s violations of our appellate rules are flagrant. Most notably, Moody provides
absolutely no citation to the record in his statement of case and statement of facts sections, in
violation of Ind. Appellate Rule 46(A)(5) and (6). Further, upon our independent review of
the scant and incomplete record before us,4 we find no support for the majority of his “facts.”
3
This court has previously explained that the purpose of I.C. § 25-31-1-19 is to “insure that no approval is
given by public officials to plans, etc. for public works which are not compiled under the supervision of a
registered professional engineer.” Sekerez v. Gary Redev. Comm’n, 301 N.E.2d 372, 375 (Ind. Ct. App.
1973). “The object is not to promote mere formality but rather to guard against the acceptance of plans
furnished by unqualified sources.” Id. Where a registered professional engineer has certified the plans
pertaining to the public project and said plans were prepared under the engineer’s direct supervision, I.C. §
25-31-1-19 has been “substantially complied with.” Id.
4
With respect to the incompleteness of the record, we observe that Moody did not include a copy of the
underlying petition for injunction in his appellant’s appendix, nor has he supplied us with his affidavit that
was submitted and upon which he substantially relied at the temporary injunction hearing.
4
His statement of facts section is also improperly littered with argument and not “stated in
accordance with the standard of review appropriate to the judgment or order being appealed.”
App. R. 46(A)(6)(b).
Moreover, in addition to imprecisely defining the issues presented,5 Moody wholly
fails to include in his appellate brief the applicable standard of review, as required by App. R.
46(A)(8)(b). Without a standard of review in mind, Moody then proceeds with his argument
based upon a wandering discussion of the meaning of “direct supervision.” Again, he
provides no citation to the record6 and little, if any, cogent argument. See App. R.
46(A)(8)(a) (argument section must contain the appellant’s contentions on the issues
presented, supported by cogent reasoning and citations to the authorities, statutes, and the
Appendix relied on).
In sum, we view Moody’s appellate brief as an invitation for us to do the work for
him. We decline.
While we prefer to decide cases on the 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.” [Mullins v. Martin, 615 N.E.2d 498, 500 (Ind. Ct. App. 1993)]. The
purpose of our appellate rules, Ind. Appellate Rule 46 in particular, is to aid
and expedite review and to relieve the appellate court of the burden of
searching the record and briefing the case. “We will not become an advocate
for a party, nor will we address arguments which are either inappropriate, too
poorly developed or improperly expressed to be understood.” Terpstra v.
Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985),
trans. denied.
5
Moody presents four “issues” that read more like a summary of argument section and do not concisely and
particularly set forth the issue(s) for review, as required by App. R. 46(A)(4).
6
We note that Moody does generally direct us twice to “See Appendix”. Appellant’s Brief at 7. This is of
no help to us and is improper. See Ind. Appellate Rule 22(C).
5
Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App.
2003).
Appeal dismissed.
RILEY, J., and MATHIAS, J., concur.
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