Charles W. Wright v. Whitney Timberlake

Pursuant
Pursuantto Ind.Appellate Rule 65(D),
to Ind.Appellate Rule
this Memorandum
65(D), Decision shall
this Memorandum not
Decision
beshall
regarded as precedent
not be regarded or cited
as precedent or
before any any
cited before court except
court exceptfor the
for the
purposeofofestablishing
purpose establishing the
the defense
defense of
of
res judicata, collateral estoppel,
res judicata, collateral estoppel, or theor
theof
law law
theofcase.
the case.
APPELLANT PRO SE:
Dec 23 2014, 9:15 am
CHARLES W. WRIGHT
Marengo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES W. WRIGHT, )
)
Appellant-Petitioner, )
)
vs. ) No. 13A01-1409-MI-402
)
WHITNEY TIMBERLAKE, )
)
Appellee-Respondent. )
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable John T. Evans, Special Judge
Cause No. 13C01-1402-MI-2
December 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Charles W. Wright, pro se, appeals the trial court’s order granting a motion to
dismiss filed by Whitney Timberlake. Wright raises three issues which we consolidate
and restate as whether the trial court erred in dismissing Wright’s petition seeking a
preliminary injunction and declaratory judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
On February 18, 2014, Wright filed a “Notice for Petition for Preliminary
Injunction, Petition for Declaratory Judgment, and Motion for Findings of Fact and
Conclusions of Law.”1 Appellant’s Appendix at 1. After a number of other filings, the
court held a hearing on February 24, 2014. That same day, the court notified Wright that
his request for court action was premature, that Wright had an adequate remedy at law,
that the county election board should hear the matter first, and that, upon the board’s
ruling, Wright could request a further hearing. On February 25, 2014, Wright filed a
“Motion to Make Ex Parte Ruling Pursuant to Trial Rule 57 and Declaratory Judgment
pursuant to IC 34-14-1-2 and Motion for Finding of Fact and Conclusions of Law.” Id. at
2.
In March 2014, Wright filed a notice of appeal. Wright also filed a motion to
consolidate appeals in cause number 13C01-1402-MI-002 and cause number 13A01-
1403-MI-100 under appellate cause number 13A01-1403-MI-100. On April 21, 2014,
this court entered an order requiring Wright to show cause why his appeal should not be
1
The record does not contain a copy of Wright’s February 18, 2014 filings, the notice of appeal
filed in March 2014, or a number of Wright’s other filings.
2
dismissed because it appeared to be a discretionary interlocutory appeal and he had failed
to comply with Ind. Appellate Rule 14(B). On May 12, 2014, Wright filed a response.
On May 22, 2014, this court entered an order dismissing the appeal with prejudice
because Wright failed to show cause why the appeal should not be dismissed.
On May 29, 2014, Wright filed a “Request/Demand Pursuant to TR 79(H).” Id. at
6. On August 20, 2014, the court held a hearing at which Wright was present in person
and Timberlake was present in person and represented by counsel. 2 That same day, the
court entered an order granting Timberlake’s motion to dismiss. The order states:
1. Petitioner Charles W. Wright (“Wright”) initiated this case on or
about February 18, 2014, seeking a preliminary injunction and a
declaratory judgment concerning a challenge filed by Whitney
Timberlake (“Timberlake”) to Wright’s January, 2014, Declaration
of Candidacy for the office of Sheriff of Crawford County, Indiana,
as a Republican candidate.
2. The procedural history, described in the Court’s Chronological Case
summary, includes: hearing before this Court February 24, 2014;
Notice of Appeal filed by Wright March 13, 2014; order of the Court
of Appeals dismissing said appeal, on or about May 29, 2014; and,
appearance and qualification of Special Judge on or about July 1,
2014.
3. All pending matters came for hearing August 20, 2014. Wright was
present in person and representing himself. Timberlake was present
in person and with counsel . . . . Wright and Timberlake were
sworn. Evidence and argument were presented.
4. The parties agree that Wright’s petition raises two issues: whether
Wright was properly affiliated, as that term is used by I.C. 3-8-2-
7(a)(4), with the Republican Party of Crawford County, Indiana;
and, whether Wright’s Class “D” Felony conviction, subsequently
2
The record does not contain a copy of the transcript of the hearing.
3
reduced to a Class “A” misdemeanor, disqualified him from being a
candidate pursuant to I.C. 3-8-1-5.
5. At the August 20, 2014 hearing, Wright advised the Court that he
concedes that his declaration of candidacy was not valid and that he
was properly disqualified as a candidate, on the basis that he could
not have been considered to have been affiliated with the Republican
Party of Crawford County, Indiana, at the time. However, Wright
requests this Court declare whether his previous felony conviction
precludes him from being a candidate for an elected office.
6. The Court declines to consider whether, had Wright been properly
affiliated with the Republican Party, he would have been otherwise
qualified, since he concedes he was not properly affiliated.
Timberlake’s motion to dismiss this matter is GRANTED.
7. This is a final, appealable order there being not just reason for delay.
The Clerk is directed to enter judgment of dismissal.
Id. at 7-8.
DISCUSSION
Initially, we note that Wright is proceeding pro se. “An appellant who proceeds
pro se is ‘held to the same established rules of procedure that a trained legal counsel is
bound to follow and, therefore, must be prepared to accept the consequences of his or her
action.’” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (quoting
Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct.
App. 2003)). “It is well settled that the duty of presenting a record adequate for
intelligent appellate review on points assigned as error falls upon the appellant, as does
the obligation to support the argument presented with authority and references to the
record pursuant to App. R. 46(A)(8).” AutoXchange.com, Inc. v. Dreyer & Reinbold,
4
Inc., 816 N.E.2d 40, 44 (Ind. Ct. App. 2004). This court will not “indulge in any
benevolent presumptions on [their] behalf, or waive any rule for the orderly and proper
conduct of [their] appeal.” Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App.
2006).
We also observe that Timberlake did not file an appellee’s brief. When an
appellee fails to submit a brief, we do not undertake the burden of developing appellee’s
arguments, and we apply a less stringent standard of review, that is, we may reverse if the
appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct.
App. 2006). This rule was established so that we might be relieved of the burden of
controverting the arguments advanced in favor of reversal where that burden properly
rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).
Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d
337, 339 (Ind. Ct. App. 2008).
The issue is whether the trial court erred in dismissing Wright’s petition seeking a
preliminary injunction and declaratory judgment. As noted earlier, Wright did not
include copies of several of his filings including his petition for preliminary injunction or
declaratory judgment. We note that this failure does not waive any issue or argument.
See Ind. Appellate Rule 49(B) (“Any party’s failure to include any item in an Appendix
shall not waive any issue or argument.”). While we decline to find that Wright’s failure
to include certain documents in his appendix results in waiver, we cannot say that Wright
developed a cogent argument, cited to relevant authority, or cited to relevant portions of
5
the record to support his arguments. Wright’s entire argument section consists of the
following:
IC 34-14-1-2[3] and the Court Order dated September 4th, 2008, specifically
the wording elements “REMOVING THE LEGAL DISABILITIES
AND BARRIERS TO OPPORTUNITY INHERENT IN A FELONY
CONVICTION” is the controlling authority by which this case is
governed. (see App. P 1 through 26)
The trial Court should have issued a Declaratory Judgment as to Appellant
Wright’s Court Order dated September 4th, 2008, which establishes and
guarantees by the wording elements “REMOVING THE LEGAL
DISABILITIES AND BARRIERS TO OPPORTUNITY INHERENT
IN A FELONY CONVICTION”, FURTHER SUPPORTED by issuance
the State of Indiana Handgun License and U.S. Department of Justice F.B.I.
(N.I.C.S.) Division authorizing Appellant Wright to purchase and possess
Firearms and Ammunitions. (see App. P 1 through 26)
The Trial Court should have issued a Declaratory Judgment as to Appellant
Wright’s 2011 most recent voting history of which was marked “U” =
Unknown, the burden of proof should and is incumbent upon the challenger
and the benefit of Unknown should be in favor of Appellant.
Assuming argument, on this issue is “MOOT”, as the 2014 Primary
Elections are over and any relief here on this issue cannot be had.
Appellant’s Brief at 7.
In his argument section, Wright does not appear to challenge the trial court’s order
to the extent that the court declined “to consider whether, had Wright been properly
affiliated with the Republican Party, he would have been otherwise qualified, since he
concedes he was not properly affiliated.” Appellant’s Appendix at 8. And Wright does
3
Ind. Code § 34-14-1-2 provides: “Any person interested under a deed, will, written contract, or
other writings constituting a contract, or whose rights, status, or other legal relations are affected by a
statute, municipal ordinance, contract, or franchise, may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of
rights, status, or other legal relations thereunder.”
6
not otherwise develop a cogent argument related to the court’s order. Consequently,
these arguments are waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.
Ct. App. 2002) (holding argument waived for failure to cite authority or provide cogent
argument), reh’g denied, trans. denied; Ind. Appellate Rule 46(A)(8)(a) (“The argument
must contain the contentions of the appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to the authorities, statutes, and
the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”).
CONCLUSION
For the foregoing reasons, we affirm the trial court’s order.
Affirmed.
BAILEY, J., and ROBB, J., concur.
7