Douglas Thompson v. Cheryl Majchrowicz and Amy Bensema, Individually and as Personal Representatives of the Estate of Beverly Jean Thompson, (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 20, 2015
• Docket: 45A05-1408-CT-395
• Status: Published

Opinion

MEMORANDUM DECISION Mar 20 2015, 10:02 am 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 the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Douglas Thompson Paul B. Poracky Pendleton, Indiana Koransky, Bouwer, and Poracky, P.C. Dyer, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas Thompson, March 20, 2015

Appellant-Defendant, Court of Appeals Cause No. 45A05-1408-CT-395 v. Appeal from the Lake Superior Court; The Honorable Michael N. Pagano, Judge; Cheryl Majchrowicz and Amy 45D09-1407-CT-21 Bensema, Individually and as Personal Representatives of the Estate of Beverly Jean Thompson, Deceased, Appellees-Plaintiffs.

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CT-395 | March 20, 2015 Page 1 of 5 [1] Douglas Thompson appeals a summary judgment for Cheryl Majchrowicz and

Amy Bensema (collectively, Appellees). He presents multiple issues for our

review, only one1 of which we are able to address: whether the trial court erred

when it denied his motion for enlargement of time and granted Appellees’

motion for summary judgment.

[2] We affirm.

Facts and Procedural History [3] In 2011, a jury found Thompson guilty of murdering his wife, Beverly. 2 On

February 29, 2012, Appellees, who are Beverly’s daughters, sued Thompson for

wrongful death, intentional infliction of emotional distress, and negligent

infliction of emotional distress because Thompson “callously and outrageously

bludgeoned” Beverly to death. (Appellant’s App. at 11.) Thompson retained

counsel Mark Lucas, who entered an appearance on March 13, 2012. Thom

Kramer entered an appearance for Thompson on March 19, 2012. On May 7,

Thompson filed an answer to Appellees’ complaint, and Lucas filed a motion to

withdraw.

1 Thompson argues his attorney committed malpractice for failing to notify him of Appellees’ motion for summary judgment, and he argues Judge Pagano should have recused himself because he was tangentially involved in Thompson’s criminal prosecution. As those issues were not presented before the trial court, we are unable to address them. See Breneman v. Slusher, 768 N.E.2d 451, 463 (Ind. Ct. App. 2002) (issues raised for the first time on appeal are waived). 2 We affirmed his conviction and sentence. Thompson v. State, 45A03-1201-CR-5 (Ind. Ct. App. October 2, 2012), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CT-395 | March 20, 2015 Page 2 of 5 [4] On March 19, 2013, Kramer filed a motion to withdraw, and it was granted

March 26. On May 30, Andrew Yoder filed a motion to withdraw despite not

having filed an appearance in the civil case, though Yoder was listed as

Thompson’s attorney in a pending matter regarding Beverly’s estate. Yoder

tendered notice of his withdrawal from the estate case due to non-payment by

Barbara Wagner, Thompson’s sister and holder of his power of attorney.

[5] On September 11, 2013, Appellees moved for summary judgment. Thompson

did not have counsel at that time and was served at the prison. On October 28,

he moved for enlargement of time and on November 18, he filed his response.

On July 28, 2014, the trial court denied Thompson’s motion for enlargement of

time and granted summary judgment for Appellees.

Discussion and Decision [6] Thompson proceeds pro se. A litigant who proceeds pro se is held to the rules of

procedure that trained counsel is bound to follow. Smith v. Donahue, 907

N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk a

litigant takes when he proceeds pro se is that he will not know how to

accomplish all the things an attorney would know how to accomplish. Id.

When a party elects to represent himself, there is no reason for us to indulge in

any benevolent presumption on his behalf or to waive any rule for the orderly

and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CT-395 | March 20, 2015 Page 3 of 5 [7] We review summary judgment de novo, applying the same standard as the trial

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all

reasonable inferences in favor of the non-moving party, we will find summary

judgment appropriate if the designated evidence shows there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter

of law. Id. A fact is material if its resolution would affect the outcome of the

case, and an issue is genuine if a trier of fact is required to resolve the parties’

differing accounts of the truth, or if the undisputed material facts support

conflicting reasonable inferences. Id.

[8] The initial burden is on the summary-judgment movant to demonstrate there is

no genuine issue of fact as to a determinative issue, at which point the burden

shifts to the non-movant to come forward with evidence showing there is an

issue for the trier of fact. Id. While the non-moving party has the burden on

appeal of persuading us a summary judgment was erroneous, we carefully

assess the trial court’s decision to ensure the non-movant was not improperly

denied his day in court. Id.

[9] If the non-moving party does not respond to a motion for summary judgment

“within 30 days by either filing a response, requesting a continuance under

Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court

cannot consider summary judgment filings of that party subsequent to the 30-

day period.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008).

Thompson argues the trial court erred when it denied as untimely his motion

for enlargement of time and granted summary judgment in favor of Appellees.

Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CT-395 | March 20, 2015 Page 4 of 5 [10] Appellees filed a motion for summary judgment on September 11, 2013, so

Thompson’s response or request for continuance had to be filed by October 14,

2013. Thompson did not file his motion for enlargement of time until October

28, 2013, and did not respond to Appellees’ motion for summary judgment

until November 18, 2013. Under HomEq, the trial court could not consider

Thompson’s filings, as they were filed too late. As the facts in Appellees’

motion for summary judgment therefore stood undisputed, there was no

genuine issue of material fact and the trial court properly granted summary

judgment in favor of Appellees. Accordingly, we affirm.

[11] Affirmed.

Barnes, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CT-395 | March 20, 2015 Page 5 of 5