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

• Court: Indiana Court of Appeals
• Decided: September 22, 2015
• Docket: 71A03-1410-CT-355
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-CT-355 | [Hand-down date] Page 1 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-CT-355 | [Hand-down date] Page 2 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-CT-355 | [Hand-down date] Page 3 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-CT-355 | [Hand-down date] Page 4 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1410-CT-355 | [Hand-down date] Page 5 of 6 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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