Margaret Gerovac v. City of Valparaiso, Indiana, and Trinity Lutheran Church of Valparaiso (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 23, 2015
• Docket: 64A05-1404-PL-195
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 23 2015, 12:38 pm 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.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE CITY Gordon A. Etzler OF VALPARAISO, INDIANA Gordon A. Etzler & Associates, LLP Byron D. Knight Valparaiso, Indiana Knight, Hoppe, Kurnik & Knight, Ltd. Schererville, Indiana Rosemont, Illinois ATTORNEYS FOR APPELLEE TRINITY LUTHERAN CHURCH OF VALPARAISO Stephen A. Tyler Alan M. Kus Johnson & Bell, P.C. Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA

Margaret Gerovac, June 23, 2015

Appellant-Plaintiff, Court of Appeals Case No. 64A05- 1404-PL-195 v. Appeal from the Porter Superior Court City of Valparaiso, Indiana, and The Honorable Mary R. Harper, Trinity Lutheran Church of Judge Valparaiso, Case No. 64D05-0904-PL-3700 Appellees-Defendants

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 1 of 11 Case Summary [1] Margaret Gerovac owned a home across an alley from Trinity Lutheran Church

of Valparaiso (“the Church”). Gerovac’s home flooded multiple times. She

called the City of Valparaiso (“the City”) for assistance in determining the cause

of the flooding. Gerovac’s flooding stopped after the City made improvements

in the alley between Gerovac’s home and the Church’s property and the Church

relocated its downspouts.

[2] Gerovac filed a negligence claim against the City and the Church. The City

and the Church each filed a motion for summary judgment, which the trial

court granted. Gerovac appeals, arguing that the trial court erred in denying

and granting various motions. In reading Gerovac’s brief, we have encountered

numerous violations of Indiana Appellate Rule 46(A), which have thwarted our

ability to effectively review her claims. Therefore, we conclude that she has

waived her claims, and we affirm the trial court’s orders.

Facts and Procedural History1 [3] In 2005, Gerovac bought a Valparaiso home from the Church. An alley runs

beside the home. The Church owns property on the other side of the alley. The

City has combined sanitary and storm sewer lines that run under the alley.

1 In violation of Appellate Rule 46(A), Gerovac’s statement of the facts fails to provide citations to the record. Therefore, we recite the facts as provided by the City and the Church. We discuss Gerovac’s violations in greater detail below.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 2 of 11 Both Gerovac’s home and the Church are connected to the City’s sewer lines in

the alley.

[4] Between February 2005 and August 2008, Gerovac’s basement flooded

approximately five times. In 2006, Gerovac called the City to report flooding,

but it could not determine the cause of the flooding. Gerovac hired a private

plumber who used a camera to inspect her lines. He also was unable to

determine the cause of the flooding but did verify that her lines to the City’s

sewer lines in the alley were not blocked.

[5] In August 2008 after an extremely heavy rainfall, Gerovac’s basement flooded,

and she called the City again. An unidentified City worker told Gerovac that

the Church had previously had two lines connected to the City’s lines when

only one line was permitted and the City had capped off one of the Church’s

lines.2 The City inserted a camera into the main sewer line to Gerovac’s home,

which revealed that water was freely flowing between Gerovac’s home and the

City’s sewer line and the line was not “capped” or otherwise blocked. City’s

App. at 55. The City used a vactor truck to clean the sewer lines. The vactor

operator hit and broke a “cookie” at the end of one of the abandoned lines,

which the City repaired. Id. at 145. The vactor truck found a restriction in one

of the lines, which the City also repaired. Id. at 151. The City added piping to

help water drain away from both Gerovac’s and the Church’s properties. Id. at

2 Apparently, Gerovac may have believed that the City had mistakenly capped her line rather than one of the Church’s.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 3 of 11 147. The City also repaired a manhole cover in the alley that had been paved

over but had nothing to do with Gerovac’s flooding. Id. at 156.

[6] During the August 2008 investigation, the City discovered that the Church had

underground downspouts connected directly to the City’s sewer lines. At one

time this was permissible, but the City had adopted an ordinance that now

prohibited it. However, the City did not test sewer lines for such illegal

hookups unless it was notified of a problem in a particular area. Id. at 159. The

City informed the Church that it needed to disconnect its downspouts from the

sewer lines. The Church relocated its downspouts. After the City’s and the

Church’s actions, Gerovac did not experience any more flooding.

[7] In April 2009, Gerovac filed a negligence complaint against the City and the

Church. Gerovac alleged that the City negligently permitted the Church’s

water to be unlawfully and negligently discharged onto the alley and negligently

permitted the drainage pipes servicing Gerovac’s property to be cut off or

capped. Id. at 8. She also alleged that the Church had used a negligently

designed and constructed drainage system such that the Church’s surface water

was not channeled to the City’s public drainage system but was discharged onto

the surface of the alley and flowed onto her property. Id. In January 2013, the

City filed a motion for summary judgment (“City’s summary judgment

motion”), and in support thereof attached City Utilities Director Steve Poulos’s

affidavit. Appellant’s App. at 41. In February, Gerovac filed a motion to strike

Poulos’s affidavit. Id. at 74.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 4 of 11 [8] In May 2013, Gerovac filed a motion for leave to amend complaint (“Gerovac’s

first motion to amend”) but did not file her proposed amended complaint. Id.

at 145. In July 2013, the City filed its response to Gerovac’s first motion to

amend (“City’s first response”). Also that month, Gerovac filed a motion to

strike the City’s first response. Id. at 194-96. A hearing was held in September

2013, at which Gerovac presented her proposed amended complaint, and the

trial court took Gerovac’s first motion to amend under advisement. Later that

month, Gerovac filed a supplemental argument to support her first motion to

amend (“Gerovac’s supplemental argument to amend”) and her proposed

amended complaint. Id. at 219. Also that month, the City filed a response to

Gerovac’s supplemental argument (“City’s response to supplemental argument

to amend”). Id. at 234. In October 2013, Gerovac filed a motion to strike the

City’s response to supplemental argument to amend. Id. at 249.3

[9] In November 2013, the trial court issued an order (1) denying Gerovac’s

motions to strike the City’s responses, (2) denying Gerovac’s motion to strike

Poulos’s affidavit, and (3) denying Gerovac’s first motion to amend. Id. at 5.

Later that month, the trial court issued an order granting the City’s summary

judgment motion. Id. at 12. Gerovac filed a motion to correct error, which the

trial court denied.

3 In her appellant’s brief, Gerovac fails to inform us that she filed a supplemental argument to amend, that the City filed a response to supplemental argument to amend, and that she filed a motion to strike the City’s response to supplemental argument to amend. To be fair, the City also fails to provide this information in its appellee’s brief.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 5 of 11 [10] In January 2014, Gerovac filed a second motion for leave to amend the

complaint (“second motion to amend”). Id. at 263. Also in January, the

Church filed a motion for summary judgment. Id. at 269. In support, the

Church designated the deposition testimony of City Sewer Department

Supervisor Charles Fitzgerald. In March 2014, Gerovac filed a motion to strike

portions of Fitzgerald’s testimony. Id. at 305. Also in March, the trial court

denied Gerovac’s second motion to amend. Id. at 22. In April 2014, the trial

court denied Gerovac’s motion to strike Fitzgerald’s testimony and entered an

order granting the Church’s summary judgment motion. Id. at 23. This appeal

ensued.

Discussion and Decision [11] Gerovac argues that the trial court erred in (1) denying her motion to strike the

City’s first response to her first motion to amend, (2) denying her two motions

for leave to amend complaint, (3) denying her motion to strike Poulos’s

affidavit, (4) granting the City’s summary judgment motion, (5) denying her

motion to strike Fitzgerald’s testimony, and (5) granting the Church’s summary

judgment motion. However, Gerovac’s appellant’s brief fails to conform to

several requirements set forth in Indiana Appellate Rule 46(A) that are essential

to our review of the issues she raises. Her statement of the case, statement of

the facts, and argument sections all violate that rule.

[12] Appellate Rule 46(A)(5) requires that the statement of the case “briefly describe

the nature of the case, the course of the proceedings relevant to the issues

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 6 of 11 presented for review and the disposition of these issues by the trial court or

Administrative Agency. Page references to the Record on Appeal or Appendix

are required in accordance with [Appellate] Rule 22(C).” Gerovac’s statement

of the case fails to briefly describe the nature of the case but instead provides

two paragraphs of underlying facts before offering some procedural history.4

More importantly, Gerovac’s statement of the case does not provide even one

citation to the record or appendix for the many motions and orders which must

be considered to resolve the issues she raises.

[13] Appellate Rule 46(A)(6) provides that the statement of the facts “shall describe

the facts relevant to the issues presented for review but need not repeat what is

in the statement of the case.” In her statement of the facts, Gerovac repeats,

nearly verbatim, the procedural information in her statement of the case. More

significantly, section (A)(6)(a) requires that the facts “be supported by page

references to the Record on Appeal or Appendix in accordance with [Appellate]

Rule 22(C).” Rule 22(C) provides, “Any factual statement shall be supported by

a citation to the page where it appears in an Appendix, and if not contained in

an Appendix, to the page it appears in the Transcript or exhibits.” (Emphasis

added.) Gerovac’s five-page statement of the facts contains only three citations,

all of which appear in the first paragraph. Given that her challenges to the trial

court’s rulings on two summary judgment motions rest in part on arguments

4 The statement of the case in the City’s appellee’s brief also provides underlying facts and minimal procedural history. See Ind. Appellate Rule 46(B) (requiring that appellee’s brief conform to section (A) of the rule).

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 7 of 11 that there are genuine issues of material fact, her challenges cannot be properly

reviewed without citations to the Trial Rule 56(C) designated evidence.

[14] Appellate Rule 46(A)(8)(a) requires that the argument section “contain the

contentions of the appellant on the issues presented, supported by cogent

reasoning. Each contention must be supported by citation to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on, in

accordance with Rule 22.” Overall, the issues raised by Gerovac are

unsupported by little if any cogent reasoning. Although there are some

citations to appellant’s appendix, the overwhelming majority of statements of

fact and references to motions and orders are unsupported by citation. Some

citations to authorities are given, but the citations are offered without the

necessary explanation as to their substance. For example, in her arguments

pertaining to the trial court’s denials of her motions to strike Poulos’s affidavit

and Fitzgerald’s testimony, there are numerous citations to the Indiana Rules of

Evidence, but there is no cogent argument regarding their applicability to the

particular situation.

[15] Appellate Rule 46(A)(8)(b) requires that the argument section include “the

applicable standard of review [and] a brief statement of the procedural and

substantive facts necessary for consideration of the issues presented on appeal,

including a statement of how the issues relevant to the appeal were raised and

resolved by [the] trial court.” Gerovac presents six issues, only one of which

includes the applicable standard of review. None of the issues has a statement

of the procedural and substantive facts necessary for the resolution of that issue,

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 8 of 11 and most do not set forth how the issue was raised and resolved in the trial

court.

[16] Finally, Gerovac’s appellant’s appendix also violates our rules. Indiana

Appellate Rule 50(A)(2)(f) requires that an appellant’s appendix contain the

pleadings and other documents necessary for resolution of the issues raised.

Gerovac’s appellant’s appendix does not contain her complaint or her proposed

amended complaint. In fact, even though she argues that the trial court erred in

denying her two motions to amend complaint, she never shares with us the

allegations in her complaint. She merely states that she “alleg[ed] several

theories.” Appellant’s Br. at 2, 7.5

[17] “A brief is not to be a document thrown together without either organized

thought or intelligent editing on the part of the brief-writer.”6 Frith v. State, 263

Ind. 100, 104, 325 N.E.2d 186, 189 (1975). “It is well settled that we will not

consider an appellant’s assertion on appeal when he has not presented cogent

argument supported by authority and references to the record as required by the

rules.” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (citing

Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App. 1999)).

5 The City and the Church each provided a copy of Gerovac’s complaint in their appellee’s appendix. 6 We also observe that Gerovac’s appellant’s brief appears to be in need of basic editing. Some of the sentences are difficult to understand. For example, Gerovac states, “At this hearing the City argued Gerovac argued claims not plead in her Complaint as she set forth in her Response to City’s Motion for Summary Judgment.” Appellant’s Br. at 2.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 9 of 11 While we prefer to decide cases on the 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.” [Mullins v. Martin, 615 N.E.2d 498, 500 (Ind. Ct. App. 1993)]. The purpose of our appellate rules, Ind. Appellate Rule 46 in particular, is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case. “We will not become an advocate for a party, nor will we address arguments which are either inappropriate, too poorly developed or improperly expressed to be understood.” Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied.

Ramsey v. Review Bd. of Indiana Dep’t of Workforce Dev., 789 N.E.2d 486, 486 (Ind.

Ct. App. 2003)).

[18] We are unable to determine the merits of Gerovac’s claims because she has

failed to support her arguments with cogent reasoning and adequate citations to

the authorities and the appendix and has failed to present her statement of the

case and statement of the facts in accordance with our appellate rules.

Therefore, we reluctantly conclude that she has waived her claims, and we

affirm the trial court’s orders.

[19] Affirmed.

Pyle, J., concurs.

Brown, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 10 of 11 IN THE COURT OF APPEALS OF INDIANA

Margaret Gerovac, Court of Appeals Case No. 64A05-1404-PL-195 Appellant-Plaintiff,

v.

City of Valparaiso, Indiana, and Trinity Lutheran Church of Valparaiso, Appellees-Defendants.

Brown, Judge, dissenting.

[20] I respectfully dissent from the majority’s conclusion that Gerovac’s appeal

should be dismissed. While not condoning the failings of her briefs, nor

excusing her noncompliance with our rules, consideration of her claimed errors

is not an impossible task. And while she may not succeed in obtaining a

reversal on any of the issues complained of, this Court prefers to decide cases

on their merits whenever possible. Omni Insurance Group v. Lake Poage, 966

N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied. I am able to discern the

essence of Gerovac’s claims and would elect to consider the merits of this case.

Court of Appeals of Indiana | Memorandum Decision 64A05-1404-PL-195 | June 23, 2015 Page 11 of 11