Kevin Martin v. Arvil R. Howe (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 26, 2019
• Docket: 19A-CT-1126
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 26 2019, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Kevin L. Martin Jamie C. Woods Christopher S. Riley Thorne Grodnik, LLP Mishawaka, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Martin, September 26, 2019 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-1126 v. Appeal from the St. Joseph Circuit Court Arvil R. Howe, The Honorable John Broden, Appellee-Defendant. Judge Trial Court Cause No. 71C01-1803-CT-123

Pyle, Judge.

Statement of the Case [1] Kevin Martin (“Martin”), pro se, appeals the trial court’s grant of summary

judgment in favor of attorney Arvil Howe (“Howe”) in Martin’s legal

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 1 of 5 malpractice action. Because the issue of ineffective assistance of counsel was

decided unfavorably to Martin and affirmed on appeal, the trial court properly

granted summary judgment in favor of Howe.

[2] We affirm.

Facts [3] The State charged Martin with murder in July 2006. Howe was Martin’s public

defender at trial. A jury convicted Martin as charged in February 2007, and the

trial court sentenced him to sixty-five (65) years. In the appeal of his conviction

and sentence, Martin argued that Howe was ineffective. This Court disagreed

with Martin and concluded that Howe was not ineffective. See Martin v. State,

No. 71A03-0707-CR-323 (Ind. Ct. App. Dec. 31, 2007), trans. denied.

[4] In June 2008, Howe filed a petition for post-conviction relief wherein he again

argued that Howe was ineffective. In its order denying Martin’s petition in

December 2017, the post-conviction court explained as follows:

The issue of ineffectiveness of trial counsel was raised on direct appeal and therefore the Court of Appeals’ finding that trial counsel was not ineffective is res judicata as to this issue and he

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 2 of 5 may not re-litigate it in a PCR proceeding.[1] See Timberlake v. State, 753 N.E.2d 591, 602 (Ind. 2001).[2]

(Appellee’s App. Vol. 2 at 14-15). Martin appealed the denial of his post-

conviction petition, and this Court dismissed the appeal with prejudice in May

2018.

[5] In January 2018, during the pendency of his post-conviction appeal, Martin

filed a legal malpractice complaint against Howe. Howe filed a summary

judgment motion, which the trial court granted. In its order granting Howe’s

motion, the trial court concluded that because the post-conviction court had

previously determined that Howe was not ineffective, the doctrine of claim

preclusion barred subsequent litigation of the issue, including Martin’s claims

against Howe in the legal malpractice action. Martin now appeals the trial

court’s grant of Howe’s summary judgment motion.

Decision [6] At the outset, we note that Martin proceeds pro se. A litigant who proceeds pro

se is held to the same 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.

1 [1] The post-conviction court alternatively concluded that Howe was not ineffective. Specifically, the post- conviction court explained that Martin had not met his burden of proof to show that Howe was ineffective. According to the post-conviction court, Martin’s questioning of Howe at the post-conviction hearing had developed no facts supporting Martin’s allegations and Martin had offered no other evidence supporting his claim.

2 In Timberlake, the Indiana Supreme Court explained that where Timberlake raised an ineffective assistance of counsel claim on direct appeal, and the Indiana Supreme Court considered and rejected it, res judicata barred Timberlake from relitigating the issue in post-conviction proceedings. Timberlake, 753 N.E.2d at 602.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 3 of 5 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). We will not become an advocate for the party or

address arguments that are too poorly developed or expressed to be understood.

Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). We now turn to the

merits of Martin’s appeal.

[7] Martin argues that the trial court erred in granting Howe’s summary judgment

motion. We review an order for summary judgment de novo, which is the

same standard of review applied by the trial court. Ind. Restorative Dentistry, P.C.

v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015). The moving party

must “affirmatively negate an opponent’s claim” by demonstrating that the

designated evidence raises no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. Id. The burden then shifts to

the nonmoving party to demonstrate a genuine issue of material fact. Id.

[8] In deciding whether summary judgment is proper, we consider only the

evidence the parties specifically designated to the trial court. Ind. Trial Rule

56(C), (H). We construe all factual inferences in favor of the nonmoving party

and resolve all doubts regarding the existence of a material issue against the

moving party. Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. 2014). Where

material facts are not in dispute, the issue is the application of the law to the

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 4 of 5 facts. Belford v. McHale Cook & Welch, 648 N.E.2d 1241, 1244 (Ind. Ct. App.

1995), trans. denied.

[9] In Belford, this Court explained that, as a matter of law, where “[t]he issue of

ineffective assistance of counsel was decided unfavorably to [Belford] and

affirmed” on appeal, the trial court properly granted summary judgment in

favor of the attorney in Belford’s legal malpractice claim. Id. This is because a

finding that counsel was not ineffective provides the necessary identity of issues

to preclude a malpractice action stemming from the same proceedings. Id. at

1245 (citing Hockett v. Breunig, 526 N.E.2d 995, 999-1003 (Ind. Ct. App. 1988))

(Shields, J., concurring).

[10] Here, as in Belford, the issue of ineffective assistance of counsel was decided

unfavorably to Martin and affirmed on appeal. Accordingly, here, as in Belford,

the trial court properly granted summary judgment in favor of Howe on

Martin’s legal malpractice claim. See also Williams v. Maschmeyer, 870 N.E.2d

1069, 1071 (Ind. Ct. App. 2007) (holding that where “the question whether

[Williams’] trial counsel provided ineffective assistance [of counsel] was

litigated in Williams’ post-conviction petition[,]” it may not be relitigated in a

legal malpractice case).

[11] Affirmed.

Robb, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1126 | September 26, 2019 Page 5 of 5