Ronald Walton and Debora Walton v. Ryan Cangany (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 12 2019, 9:18 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
PRO SE FOR APPELLANTS ATTORNEYS FOR APPELLEE
Debora Walton Thomas R. Schultz
Westfield, Indiana Jon L. Bucher
Schultz & Pogue, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Walton and Debora September 12, 2019
Walton, Court of Appeals Case No.
Appellants-Plaintiffs, 19A-CT-35
Appeal from the Marion Superior
v. Court
The Honorable Patrick J. Dietrick,
Ryan Cangany, Judge
Appellee-Defendant Trial Court Cause No.
49D12-1707-CT-29646
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019 Page 1 of 9
Case Summary
[1] Ronald Walton and his sister Debora Walton (collectively “the Waltons”), filed
a negligence action against Ryan Cangany for injuries stemming from an
automobile accident. Cangany served Debora and Ronald separately with
requests for admissions and received no response from either of them. He then
sought and was granted summary judgment. The Waltons jointly appeal that
ruling. We affirm.
Facts and Procedural History
[2] In July 2017, the Waltons filed a personal injury action against Cangany
following a 2015 automobile accident at an Indianapolis intersection. They
claimed that Cangany negligently operated his vehicle, causing Ronald to suffer
physical injuries and incur medical expenses. In October 2017, they filed an
amended complaint with jury demand. 1
[3] On July 31, 2018, Cangany, by counsel, sent cover letters by regular and
certified mail to Ronald and Debora at each of their listed addresses. Attached
to each letter was a two-page document titled, “Defendant’s Request for
Admissions and Alternative Interrogatory,” which includes the following:
Defendant, Ryan Cangany, by counsel, submits the following
Request for Admissions and Alternative Interrogatory, pursuant
to Ind. Trial Rules 34 and 36, to be answered within thirty (30)
1
The Waltons have failed to include in their appendix a copy of the complaint or amended complaint with
jury demand. Thus, the nature of Debora’s damages is unclear.
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days after service hereof:
REQUEST NO. 1: Ryan Cangany did not breach any duties
owed to you with regard to operation of his vehicle on October
28, 2015.
….
REQUEST NO. 2: You suffered no damages as a result of the
motor vehicle accident on October 28, 2015, involving Ryan
Cangany and Ronald Walton.
….
REQUEST NO. 3: Ryan Cangany was not negligent in the
operation of his vehicle on October 28, 2015.
….
REQUEST NO. 4: Ryan Cangany is not liable to
Ronald[/Debora] Walton for any damages as a result of the
motor vehicle accident on October 28, 2015.
….
ALTERNATIVE INTERROGATORY: If you do not
unequivocally admit or deny all of the above Request for
Admissions, please state with specificity all facts upon which you
rely for not admitting the above Request for Admissions.
Appellants’ App. Vol. 2 at 28-29, 33-34.
[4] Neither Ronald nor Debora submitted responses to his/her request for
admissions. On October 15, 2018, Cangany filed a motion for summary
judgment with designated materials, including the unanswered requests for
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admissions. He claimed that the information deemed admitted pursuant to
Indiana Trial Rule 36 negated at least one element of negligence as a matter of
law. The Waltons did not file a memorandum or designate any materials in
opposition to summary judgment. The Chronological Case Summary shows
that on November 2, 2018, Ronald filed a motion to strike Cangany’s motion
for summary judgment. 2 Cangany filed a response to the motion to strike, and
on December 4, 2018, the trial court conducted a hearing on both motions.
That same day, the trial court issued an order denying Ronald’s motion to
strike. Ronald filed a motion to reconsider, which the trial court also denied.
The Waltons then filed a joint motion for leave to file a response to Cangany’s
motion for summary judgment, which the trial court denied.
[5] On December 14, 2018, the trial court issued an order granting summary
judgment in favor of Cangany. The Waltons appeal that order. Additional
facts will be provided as necessary.
Discussion and Decision
[6] The Waltons contend that the trial court erred in granting Cangany’s motion
for summary judgment. As a preliminary matter, we note that the Waltons
chose to proceed pro se both here and in the proceedings below. It is well
settled that pro se litigants are held to the same legal standards as licensed
2
The trial court noted during the hearing on the motion to strike that although it was titled “Verified,” it was
in fact unverified. The motion is not included in the appendix, and the basis for it is unknown.
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attorneys. Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct.
App. 2013). 3
[7] We review a court’s ruling on a summary judgment motion de novo, applying
the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003
(Ind. 2014). In conducting our review, we consider only those matters that
were designated to the trial court during the summary judgment stage. Biedron
v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans.
denied (2019).
[8] Summary judgment is appropriate if the designated evidence shows that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule
56(C). The moving party bears the onerous burden of affirmatively negating an
opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, if “the moving party
satisfies this burden through evidence designated to the trial court, the non-
moving party may not rest on its pleadings, but must designate specific facts
demonstrating the existence of a genuine issue for trial.” Biedron, 106 N.E.3d at
3
This includes litigants who prosecute their appeals pro se and therefore must comply with all the rules of
appellate procedure. Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52, 61 (Ind. Ct. App.
2002), trans. denied (2003). The Waltons have failed to comply with several rules of appellate procedure. For
example, they have failed to include in their appendix copies of the complaint, amended complaint, motion
to strike, and Cangany’s response to the motion to strike. They also have improperly included a reproduction
of the transcript of the summary judgment hearing. See Ind. Appellate Rule 50(f) (because transcript is
transmitted pursuant to Rule 12(B), parties should not reproduce any portion of transcript in the appendix).
Moreover, their brief is deficient in many respects, and their arguments lack cogency. As the party with the
burden of establishing error on appeal, they must develop reasoned arguments supporting their allegations
and provide citations to pertinent authority. Ind. Appellate Rule 46(A)(8).
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1089 (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App.
2016), trans. denied).
[9] In determining whether issues of material fact exist, we neither reweigh
evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104
(Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those
facts established by the designated evidence favoring the non-moving party.
Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans.
denied. “Any doubt as to any facts or inferences to be drawn therefrom must be
resolved in favor of the non-moving party.” Buddy & Pals III, Inc. v. Falaschetti,
118 N.E.3d 38, 41 (Ind. Ct. App. 2019) (quoting Goodwin v. Yeakle’s Sports Bar &
Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)), trans. denied. The party that lost in
the trial court bears the burden of persuading us that the trial court erred.
Biedron, 106 N.E.3d at 1089. We may affirm a grant of summary judgment on
any legal basis supported by the designated evidence. Harness v. Schmitt, 924
N.E.2d 162, 165 (Ind. Ct. App. 2010).
[10] The Waltons’ action against Cangany is grounded in negligence. To prevail on
a negligence claim, the plaintiffs must demonstrate “(1) duty owed to plaintiff
by defendant; (2) breach of duty by allowing conduct to fall below the
applicable standard of care; and (3) compensable injury proximately caused by
defendant’s breach of duty.” Buddy & Pals, 118 N.E.3d at 41 (quoting King v.
Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)).
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[11] Here, Cangany served separate requests for admissions on Debora and Ronald
pursuant to Indiana Trial Rule 36. Rule 36 allows a party to serve upon any
other party a request for the admission of the truth of matters asserted by
separately setting forth each matter for which an admission is requested.
The matter is admitted unless, within a period designated in the
request, not less than thirty (30) days after service thereof or
within such shorter or longer time as the court may allow, the
party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed
to the matter, signed by the party or by his attorney.
Id. “Any matter admitted under this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission.” Ind.
Trial Rule 36(B).
[12] The Waltons failed to respond at two critical junctures. They did not submit
any answers or objections to Cangany’s requests for admissions. Nor did they
request an enlargement of time within which to respond. The requests for
admissions went to the heart of Cangany’s negligence claim, as each plaintiff
was asked to admit or deny that “Cangany did not breach any duties owed” to
him/her, that he/she “suffered no damages,” that “Cangany was not negligent
in the operation of his vehicle,” and that “Cangany was not liable … for any
damages” resulting from the accident. See Appellants’ App. Vol. 2 at 28-29,
33-34 (Exhibits 1 and 2). When the Waltons failed to respond, Cangany filed a
motion for summary judgment on the ground that the deemed admitted matters
negated at least one of the elements of negligence.
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[13] The Waltons again failed to respond. They did not file a memorandum in
opposition to summary judgment or designate any affidavits or other materials.
Ronald did file a motion to strike Cangany’s motion for summary judgment,
but the court found it to be unverified and denied it during the December 4,
2018, summary judgment hearing. At the hearing, the Waltons offered various
explanations for their communication and filing failures. Ronald claimed that
he had received the request for admissions and had typed out and sent
responses to Cangany’s counsel. Neither Cangany nor his counsel received any
such responses. When asked why he did not attach any of the alleged responses
to his motion to strike, Ronald explained that his computer crashed and that he
therefore could not provide any copies to verify his assertions. 4 Tr. Vol. 2 at 10.
Debora denied ever having been served with the letter and accompanying
request for admissions. She explained to the trial court that her employees pick
up her mail and that she does not allow them to sign for any certified mail. Id.
at 12. However, this explanation did not account for the copies sent by regular
mail, and Debora confirmed to the trial court that her mailing address was
correct and that Cangany’s counsel had signed the certificate of service. Id. at
14; see also id. at 16-17 (Cangany’s Counsel: “Everything we’ve sent to both
litigants has been sent regular mail and certified.”).
4
Cangany’s counsel explained that she had not received any responses from Ronald to the request for
admissions but that she believed that Ronald was referring to his responses to some initial interrogatories and
requests for production, not the request for admissions. Tr. Vol. 2 at 11. These are not included in the record
before us.
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[14] In sum, the Waltons failed both to respond to the requests for admissions and to
designate any affidavits or other documents in opposition to summary
judgment. The Waltons’ failure to respond to the requests for admissions
resulted in the statements negating the elements of negligence being deemed
admitted. The Waltons could have designated affidavits explaining the alleged
service and/or computer problems, or attached copies of alleged responses in
opposition to Cangany’s motion for summary judgment. They did not do so.
Their unverified explanations during the hearing cannot be considered
designated evidence. As such, they have failed to meet their burden of
persuading us that the trial court erred in granting summary judgment in favor
of Cangany. See Biedron, 106 N.E.3d at 1089. Accordingly, we affirm.
[15] Affirmed.
Baker, J., and Kirsch, J., concur.
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