Rose Keen v. Terminix International Company Limited Partnership, Servicemaster Residential Commercial Services Limited Partnership, and Timothy Slocum (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 30, 2015
• Docket: 64A05-1504-CT-160
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 30 2015, 9:51 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 APPELLEES Rose Keen Jennifer Kalas Chesterton, Indiana Hinshaw & Culbertson LLP Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rose Keen, October 30, 2015 Appellant-Plaintiff, Court of Appeals Case No. 64A05-1504-CT-160 v. Appeal from the Porter Superior Court Terminix International Company The Honorable Roger V. Limited Partnership, Bradford, Judge Servicemaster Residential Trial Court Cause No. Commercial Services Limited 64D01-1008-CT-8454 Partnership, and Timothy Slocum, Appellees-Defendants.

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 1 of 6 [1] Rose Keen, pro se, appeals the trial court’s entry of summary judgment in favor

of Terminix International Company Limited Partnership, Servicemaster

Residential Commercial Services Limited Partnership, and Timothy Slocum

(together, the “Appellees”). We dismiss Keen’s appeal.

Procedural History

[2] In August 2010, Keen filed a complaint against the Appellees alleging they

negligently discharged pesticide or other chemicals in a home where she was

present and that as a result she sustained personal injuries. On July 22, 2014,

the Appellees filed a motion for summary judgment together with designated

evidence and a memorandum in support of the motion. In August or

September 2014, Keen filed a motion for an enlargement of time, and the court

granted the motion, extending the time for Keen to file a response until October

17, 2014. On October 2, 2014, Keen’s counsel filed a motion to withdraw

appearance, and the following day the court granted the motion and granted

Keen until November 7, 2014 to respond to the Appellees’ motion for summary

judgment. On November 5, 2014, Keen filed a response to the summary

judgment motion as well as another motion for enlargement of time. On

November 13, 2014, the Appellees filed a motion for hearing, and the court

scheduled a hearing for March 4, 2015.

[3] On February 11, 2015, Keen filed a Motion to Delay Decision on Summary

Judgment requesting the court to delay any decision until new interrogatories

could be answered by all of the Appellees. On February 19, 2015, the court

denied Keen’s motion and ordered that the hearing on Appellees’ motion for Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 2 of 6 summary judgment would remain scheduled for March 4, 2015. On March 4,

2015, the court held the scheduled summary judgment hearing. On March 18,

2015, the court granted the Appellees’ motion for summary judgment on all

claims asserted in Keen’s complaint. Keen now appeals.

Discussion

[4] The Appellees argue that the appellant’s brief filed by Keen is utterly devoid of

any reference to the record on appeal or to an appendix, that she cites no

authority in support of her analysis and provides no cogent reasoning, “instead

offering only two paragraphs of speculation that a former Terminix employee

might be able to provide testimony helpful” to her, and thus that her argument

is waived. Appellee’s Brief at 7.

[5] A pro se litigant is held to the same established rules of procedure that trained

legal counsel are bound to follow, and the fact that a litigant proceeds pro se

does not excuse the litigant from complying with appellate rules. Foster v.

Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). Although we

prefer to dispose of cases on their merits, where an appellant fails to

substantially comply with the appellate rules, then dismissal of the appeal is

warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). This

court has discretion to dismiss an appeal for the appellant’s failure to comply

with the Rules of Appellate Procedure. See Miller v. Hague Ins. Agency, Inc., 871

N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will exercise our

discretion to reach the merits when violations are comparatively minor, if the

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 3 of 6 parties commit flagrant violations of the Rules of Appellate Procedure we will

hold issues waived, or dismiss the appeal.”), reh’g denied.

[6] Keen has failed to comply with the requirements of the Rules. Appellate Rule

46(A)(5) governs the statement of case and provides that “[p]age references to

the Record on Appeal or Appendix are required in accordance with Rule

22(C).” Keen’s statement of the case in her appellant’s brief does not include

any citations to the record or appendix. Appellate Rule 46(A)(6) governs the

statement of facts and provides that “[t]he facts shall be supported by page

references to the Record on Appeal or Appendix in accordance with Rule

22(C).” Keen’s statement of facts is contained on three pages and includes

citations to a deposition in only the final paragraph of the section. Keen’s

statement of facts does not include appropriate citation to the record on appeal

or appendix as required by Appellate Rule 46(A)(6).

[7] Further, Keen’s claim is not supported by cogent argument or citation to

relevant authority. Appellate Rule 46(8)(a) provides that “[t]he argument must

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

cogent reasoning” and that “[e]ach contention must be supported by citations to

the authorities, statutes, and the Appendix or parts of the Record on Appeal

relied on . . . .” Appellate Rule 46(8)(b) provides that the argument must

include “a concise statement of 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

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 4 of 6 to the appeal were raised and resolved by any . . . trial court.” This court has

previously stated:

We demand cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A brief should not only present the issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind. 1985). On review, we will not search the record to find a basis for a party’s argument . . . nor will we search the authorities cited by a party in order to find legal support for its position.

Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997).

[8] Keen appears to claim that the trial court erred in denying her Motion to Delay

Decision on Summary Judgment and states in part that no one “caught the

mistake that the interrogatories were not signed under oath,” that “[i]t’s been

years and it’s not fair to [her] or to Tim Slocum the Defendant or to Patrick

Shannon, Terminix’s representative,” that “I know things now that I did not

know years ago,” that “I’m sure that the Defendant and Terminix’s

representative might have information now that they did not have years ago or

even changed their way of thinking as to what they thought was correct then –

they now see differently,” and that “[i]t’s not correct to allow these

interrogatories as valid.” Appellant’s Brief at 13-14. Keen has failed to

advance her arguments with cogent reasoning or citations to relevant authority

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 5 of 6 and the record. Her appellant’s brief and reply brief cite only to the Federal

Rules of Civil Procedure, and she cites no Indiana caselaw or rules. Addressing

Keen’s claims on the merits would require us to make and advance arguments

on her behalf. Therefore, we dismiss Keen’s appeal. See Keller, 549 N.E.2d at

373-374 (dismissing appeal because the appellant failed to provide cogent

argument with adequate citation of authority).

Conclusion

[9] For the foregoing reasons, we dismiss Keen’s appeal.

[10] Dismissed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015 Page 6 of 6