Andrew D. Jackson, Pro Se and as Relator for the State of Indiana v. Florence Kobli Michael Hrinyo (Personally and not as Whiting Building Commissioner) City of Whiting, Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2018
• Docket: 18A-CT-750
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 20 2018, 6:21 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR MICHAEL Andrew D. Jackson HRINYO, CITY OF WHITING, Atlanta, Georgia INDIANA, WHITING CITY COURT, AND THE HONORABLE ANN P. LIKENS Matthew L. Hinkle Alex Emerson Coots, Henke & Wheeler, P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew D. Jackson, Pro Se and November 20, 2018 as Relator for the State of Court of Appeals Case No. Indiana, 18A-CT-750 Appellant-Plaintiff, Appeal from the Lake Superior Court v. The Honorable John M. Sedia, Judge Florence Kobli; Michael Hrinyo Trial Court Cause No. (Personally and not as Whiting 45D01-1412-CT-293 Building Commissioner); City of Whiting, Indiana; Whiting City Court; and The Honorable Ann P. Likens (Personally and as

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 1 of 10 Whiting City Court Judge), Appellees-Defendants

Crone, Judge.

Case Summary [1] Andrew D. Jackson, pro se, filed a complaint against Florence Kobli; Michael

Hrinyo, personally and not as Whiting Building Commissioner; the City of

Whiting, Indiana (“the City”); Whiting City Court; and the Honorable Ann P.

Likens, personally and as Whiting City Court Judge, for alleged personal

injuries and violations of constitutional rights and seeking an order of mandate

against Whiting City Court and Judge Likens. Hrinyo, the City, Whiting City

Court, and Judge Likens (collectively “City Defendants”) filed a joint motion

for summary judgment, which the trial court granted. Kobli also filed a motion

for summary judgment, which the trial court granted. Jackson filed a motion to

correct error as to both grants of summary judgment, which the trial court

denied. Jackson now appeals, arguing that it was error to grant summary

judgment in favor of City Defendants and Kobli. We affirm.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 2 of 10 Facts and Procedural History [2] At all times relevant to this appeal, Jackson owned property at 1526 Steiber

Street (“the Property”) in the City. Kobli lived next door to the Property.

Hrinyo is the City’s building commissioner. In April 2013, the Property was

leased to an African-American family. Hrinyo inspected the Property and

observed that the roof was missing some material in violation of the City’s

building code. In May 2013, the City issued Jackson a notice of ordinance

violation and initiated proceedings to prosecute the ordinance violation in the

Whiting City Court. Judge Likens presided over the matter.1 In November

2015, Judge Likens found that the Property remained in violation of the

building code and entered judgment against Jackson (“the Order”).

[3] In November 2015, Jackson filed an amended complaint 2 in the underlying

cause containing the following allegations: (1) Kobli tortiously interfered with

Jackson’s contractual relationship with his tenants and violated his civil rights

under 42 U.S.C. § 3617; (2) Hrinyo tortiously interfered with Jackson’s

contractual relationship with his tenants and violated his rights under 42 U.S.C.

§ 3617; (3) the City violated Jackson’s right to substantive due process and

equal protection; (4) the Whiting City Court and Judge Likens exceeded the

1 In March 2014, Jackson filed a complaint with the Indiana Civil Rights Commission alleging that the City, the City’s mayor, and Hrinyo discriminated against him on the basis of race in violation of the Indiana Fair Housing Act, the Indiana Civil Rights Law, and the Federal Civil Rights Act. Appellees’ App. Vol. 2 at 66. In June 2014, the Commission issued a notice finding that there was “no reasonable cause to believe that an unlawful discriminatory practice occurred in this instance.” Id. 2 Jackson filed his original complaint in December 2014, before the Whiting City Court proceedings were resolved.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 3 of 10 jurisdiction of the Whiting City Court by continuing to adjudicate the dispute

over his alleged building code violation; and (5) Judge Likens violated

Jackson’s civil rights under 42 U.S.C. § 1983 by continuing to adjudicate the

dispute. Jackson’s complaint included an action for mandate pursuant to

Indiana Code Section 34-27-3-3 against the Whiting City Court Order and

Judge Likens.

[4] In February 2016, City Defendants filed a joint motion for summary judgment.

In March 2016, Jackson filed a response to the motion for summary judgment

(“the 2016 Response”). In April 2016, a hearing was held, during which

Jackson moved to amend his complaint to add the language required by

Indiana Code Section 34-13-3-5(c) to bring a civil action against a public

employee. The trial court denied his motion. Following the hearing, the trial

court issued an order granting the City Defendants’ summary judgment motion.

Specifically, the trial court found the following: (1) the City is entitled to

judgment as a matter of law because Jackson failed to file a tort claim notice as

required by Indiana Code Section 34-13-3-8; (2) Hrinyo is entitled to judgment

as a matter of law because the conditions required by Indiana Code Section 34-

13-3-5(c) were not satisfied; (3) the Whiting City Court and Judge Likens are

entitled to judgment as a matter of law because they have jurisdiction over all

violations of all City ordinances and therefore are entitled to immunity; and

Jackson is not entitled to a judgment of mandate because Judge Likens had no

absolute duty to immediately cease proceedings.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 4 of 10 [5] In September 2017, Kobli filed a motion for summary judgment. Jackson filed

a response. In January 2018, the trial court granted Kobli’s motion. Jackson

filed a motion to correct error, claiming error with regard to summary judgment

in favor of all opposing parties. In February 2018, the trial court denied his

motion to correct error. This appeal ensued.

Discussion and Decision [6] Before turning to the merits of Jackson’s arguments, we observe that Jackson

opted to proceed pro se, and as a pro se litigant, he “is held to the same

standards as a trained attorney and is afforded no inherent leniency simply by

virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.

2014). Pro se litigants “are bound to follow the established rules of procedure

and must be prepared to accept the consequences of their failure to do so.”

Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). “These consequences

include waiver for failure to present cogent argument on appeal.” Id. While we

prefer to decide issues on the merits, where the appellant’s noncompliance with

appellate rules is so substantial that it impedes our consideration of the issues,

we may deem the alleged errors waived. Perry v. Anonymous Physician 1, 25

N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied (2015), cert. denied. We

will not become an “advocate for a party, or address arguments that are

inappropriate or too poorly developed or expressed to be understood.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 5 of 10 [7] In his motion to correct error, Jackson claimed that the trial court erred in

granting summary judgment in favor of the City Defendants and Kobli. 3 We

review a trial court’s ruling on a motion to correct error for an abuse of

discretion, and the trial court’s decision is afforded a strong presumption of

correctness. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). Our

standard of review of a summary judgment is de novo; we apply the same

standard as the trial court and draw all reasonable inferences in favor of the

nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Once that showing is made, the burden shifts to the nonmovant to come forward with contrary evidence showing the existence of an issue for the trier of fact. In determining whether the moving party is entitled to summary judgment, we consider only those materials properly designated pursuant to Trial Rule 56 and construe all factual inferences and resolve all doubts in favor of the non- moving party.

Holmes v. Nat’l Collegiate Student Loan Tr., 94 N.E.3d 722, 724 (Ind. Ct. App.

2018) (citations, quotation marks, brackets, and ellipsis omitted). Furthermore,

3 It is difficult to understand Jackson’s arguments in his motion to correct error. He seems to argue that the trial court engaged in impermissible fact-finding depriving him of his right to a jury trial. We interpret this as an argument that summary judgment was improper because there are genuine issues of material fact, and therefore proceed directly to addressing Jackson’s arguments regarding the summary judgment orders.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 6 of 10 “the trial court’s judgment arrives on appeal clothed with a presumption of

validity, and the challenging party bears the burden of proving that the trial

court erred in determining that there are no genuine issues of material fact and

that the moving party was entitled to judgment as a matter of law.” Kramer v.

Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind.

2015) (quoting Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009)).

[8] Here, the trial court issued findings of fact as part of its summary judgment

order. “Special findings are not required in summary judgment proceedings and

are not binding on appeal.” Warren v. Warren, 952 N.E.2d 269, 273 (Ind. Ct.

App. 2011). However, the trial court’s special findings offer valuable insight

into its rationale and therefore help facilitate our review. Id.

Section 1 – The trial court did not err in granting summary judgment to City Defendants. [9] Jackson raises three challenges to the trial court’s order granting the City

Defendants’ motion for summary judgment. As best we can understand, his

first argument appears to be that summary judgment was improper because

there are genuine issues of material fact. Despite how important it is to this

argument, Jackson failed to provide any facts in his statement of the facts in

contravention of Indiana Appellate Rule 46(6). Rather, he reproduces a list of

ten questions from his 2016 Response, which he says he designated as material

issues of fact. Appellant’s Br. at 15-16 (citing Appellant’s App. Vol. 2 at 22-23).

However, designating questions of fact does not equate to designating evidence

that establishes a question of fact. Jackson does not direct us to any actual

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 7 of 10 evidence. Jackson states that in his 2016 Response, he referenced ten exhibits

and a supporting affidavit, but he failed to include these in his appellant’s

appendix. Therefore, Jackson has failed to carry his burden to show that there

are genuine issues of material fact. See CFS, LLC v. Bank of Am., 962 N.E.2d

151, 153 (Ind. Ct. App. 2012) (“Trial Rule 56(H) specifically prohibits this

Court from reversing a grant of summary judgment on the ground that there is a

genuine issue of material fact, unless the material fact and the evidence relevant

thereto shall have been specifically designated to the trial court.”).

[10] Jackson’s second argument is that the trial court erred in concluding that he

was required to file a tort claim notice against the City and Hrinyo as required

by Indiana Code Section 34-13-3-8. He seems to argue that the statute does not

apply to his claims against the City and Hrinyo because he was asserting a

constitutional injury against the City and he was suing Hrinyo in his personal

capacity. However, other than directing us to nineteen paragraphs in his

response, he does not expound on this argument. Therefore, it is waived. See

Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003) (“A party generally

waives any issue for which it fails to develop a cogent argument or support with

adequate citation to authority and portions of the record.”), trans. denied; Ind.

App. Rule 46(A)(8)(a) (“The argument must contain the contentions of the

appellant on the issues presented, supported by cogent reasoning.”); see also

Dave’s Excavating, Inc. v. City of New Castle, 959 N.E.2d 369, 376 (Ind. Ct. App.

2012) (stating that appellant may not incorporate argument from another source

by reference), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 8 of 10 [11] Third, Jackson asserts that the trial court erred in concluding that he is not

entitled to a judgment of mandate. In support, Jackson either directs us to

paragraphs in his 2016 Response or reproduces paragraphs from his 2016

Response. Jackson fails to present a cogent argument, and therefore it is

waived. See Romine, 782 N.E.2d at 386. Based on the foregoing, we affirm

summary judgment in City Defendants’ favor.4

Section 2 – The trial court did not err in granting summary judgment to Kobli. [12] In granting Kobli’s motion for summary judgment, the trial court found that

Kobli had met her initial burden to show the absence of any genuine issue of

material fact and Jackson had not “come forward with contrary evidence

showing an issue for the trier of fact.” Appellant’s App. Vol. 2 at 84. On

appeal, Jackson asserts that it should be “apparent” from his complaint and his

2016 Response that his account of “the truth” varies considerably from that of

Kobli.5 Appellant’s Br. at 20-21. Jackson continues to ignore the necessity of

4 Jackson also contends that the trial court erred in denying his motion to amend his complaint to add the language required by Indiana Code Section 34-13-3-5(c) to bring a civil lawsuit against a public employee personally. We need not address his contention because the trial court concluded that the requirements of Code Section 34-13-3-5(c) had not been met, and therefore any error would be harmless. 5 Because Kobli has not filed an appellee’s brief, we may reverse if Jackson “establishes prima facie error, which is error at first sight, on first appearance, or on the face of it.” Jenkins v. Jenkins, 17 N.E.3d 350, 351-52 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 9 of 10 designating contrary evidence. See CFS, 962 N.E.2d at 153. Accordingly, we

find no error and affirm summary judgment in Kobli’s favor. 6

[13] Affirmed.

Najam, J., and Pyle, J., concur.

6 After the trial court granted summary judgment in favor of City Defendants, Jackson moved to amend his complaint to add a plaintiff. After a hearing, the trial court denied his motion. Jackson argues that the trial court erred in denying his motion. Because we affirm summary judgment in favor of Kobli, we need not address this issue.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-750 | November 20, 2018 Page 10 of 10