Sumbry v. Pera

795 N.E.2d 470, 2003 Ind. App. LEXIS 1698, 2003 WL 22092680

• Court: Indiana Court of Appeals
• Decided: September 10, 2003
• Docket: 46A03-0303-CV-101
• Status: Published

Opinion

OPINION

MAY, Judge.

Larrianté Sumbry, acting pro se, appeals the trial court's dismissal without prejudice of his complaint against John Pera and Anna Anton. 1 He raises three issues:

1. Whether the trial court abused its discretion in dismissing his complaint;

2. Whether the trial court abused its discretion in declining to appoint counsel; and

3. Whether the trial court abused its discretion in redesignating his civil action.

We affirm. 2

FACTS AND PROCEDURAL HISTORY

On December 18, 2002, Sumbry filed a complaint against Pera and Anton in the LaPorte Superior Court,. On that same day an Order was entered allowing Sum-bry to proceed as an indigent upon payment of a partial filing fee of $6.00. On December 27, 2002, the trial court assessed the $6.00 filing fee, On February 11, 2003, the trial court entered the following order: "Plaintiff having failed to comply with I.C. 33-19-8-2.5 as Ordered December 18, 2002, the Court now Orders the above cause of action dismissed without prejudice." 3

DISCUSSION AND DECISION

1. Dismissal of Complaint

Sumbry's entire argument on this issue is:

Trial court abused it's [sic] discretion for charging appellant six (6) dollars for filing fees when he is indigent and only received five (5) dollars during the time he pursued this action which shows that the court violated the statutory requirements set forth in I.C. 33-19-3-2.5 which lead [sic] to his cause of action being dismissed due to the fraud committed by the court trying to deceive appellant in paying a fee that is not authorized by law. See Caminetti v. U.S., [242 U.S. 470,] 37 S.Ct. 192, 194 [61 L.Ed. 442] (1917), Wallem v. CLS Industries, Inc., 725 N.E.2d 880 ( [Ind.Ct.App.] 2000).

(Br. of Appellant at 3-4.) 4

The dismissal of Sumbry's action was not error. Ind.Code § 838-19-3-2.5 provides in pertinent part:

(b) When an offender commences an action or a proceeding without paying fees or other court costs under section 2 of this chapter, the offender shall obtain from the appropriate official of the correctional facility or facilities at which the offender is or was confined, a certified copy of the prisoner's trust fund account statement for the six (6) months immediately preceding submission of the complaint or petition. The offender shall file the trust fund account statement in addition to the statement required under section 2 of this chapter. 5

(c) The offender shall pay a partial filing fee that is twenty percent (20%) of the greater of:

(1) The average monthly deposits to the offender's account; or

(2) the average monthly balance in the offender's account:

for the six (6) months immediately preceding the filing of the complaint or petition. However, the fee may not exceed the full statutory fee for the commencement of actions or proceedings.

(d) If the offender claims exceptional cireumstances that render the offender unable to pay the partial filing fee required by this section, in addition to the statement required by section 2 of this chapter and the statement of account required by subsection (b), the offender shall submit an affidavit of special circumstances setting forth the reasons and circumstances that justify relief from the partial filing fee requirement.

(e) If the court approves the application to waive all fees, the court shall give written notice to the offender that all fees and costs relating to the filing and service will be waived. If the court denies the application to waive all fees, the court shall give written notice to the offender that the offender's case will be dismissed if the partial filing fee is not paid within forty-five (45) days after the date of the order, or within an additional period that the court may, upon request, allow. Process concerning the offender's case may not be served until the fee is paid. legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary.

(Footnote supplied.)

Sumbry's "Civil Plenary Action" filed on December 18, 2002, does not contain a statement pursuant to Ind.Code § 33-19-3-2 as to his indigency, nor does the record reflect he attached a certified copy of his trust fund account statement as required by Ind.Code § 33-19-3-2.5. Sum-bry did not contest the trial court's assessment of a $6.00 filing fee. In fact, for the 55 days from the Order assessing the $6.00 filing fee until the dismissal without prejudice, Sumbry did nothing. Sumbry's failure to comply with these statutes resulted in the dismissal without prejudice of his action, and the dismissal was not an abuse of discretion. 6 The dismissal of Sumbry's action was without prejudice; presumably, he may therefore file the proper doeu-ments pursuant to Ind.Code §§ 83-19-3-2 and 33-19-3-2.5 along with his complaint.

2. Appointment of Counsel

Sumbry argues the trial court abused its discretion when it declined to appoint counsel. Sumbry requested the appointment of counsel and the trial court did not rule on his motion. However, as Sumbry did not pay the filing fee and his case was dismissed without prejudice before any action was taken by the trial court, this issue is moot. Should Sumbry properly comply with the above-referenced statutes, the trial court will then be obliged to consider whether his case warrants the appointment of counsel pursuant to Sholes v. Sholes, 760 N.E.2d 156 (Ind.2001).

8. Redesignation of Civil Action

Sumbry contends the trial court changed his Civil Plenary Action to a "Miscellaneous Cause of Action," stripping him "of his substantive due process rights to proceed with his case in the manner of his choice and caused harm to his first and fourteenth amendment rights to equal access to the civil justice system." (Br. of Appellant at 5.)

Administrative Rule 8 provides for the numbering of cases filed in our courts. There are separate designations for Civil Tort, Civil Plenary, and Miscellaneous actions. Miscellaneous cases are "[clivil cases other than those specifically identified-i.e. change of name, appointment of appraisers, marriage waivers, etc." Id. Sumbry's action "is a civil action for legal malpractice, obstruction of justice, judicial misconduct, negligence, denial of equal protection clause of the Fourteenth Amendment." (App. of Appellant.)

Sumbry offers no argument in support of his bald assertion that the redesignation of his action was error. We are therefore unable to address this allegation of error. App. R. 46(A)(8)(a). Furthermore, we are aware of no authorities that indicate cases on a civil plenary docket are treated differently from those on a miscellaneous docket. 7 We therefore decline to find the placement of Sumbry's case on a miscellaneous docket rather than a civil plenary docket to be error.

Affirmed.

DARDEN, J., and BARNES, J., concur.

1 . No appellee's brief was filed.

2 . Sumbry filed a number of motions during the pendency of this appeal, including a "Motion to Compel Trial Court to Furnish Appellant with a Filed-Stamped [sic] Copy of his Notice of Appeal," a Verified Petition to File Belated Appeal, and a Request for Transfer to the Supreme Court. In his notice of appeal, he also requested oral argument and a pre-appeal conference. We deny his request for oral argument and pre-appeal conference, deny his "Motion to Compel Trial Court to Furnish Appellant with a Filed-Stamped [sic] copy of his Notice of Appeal," and find moot his Verified Petition to File Belated Appeal. We are not in a position to rule on his Request for Transfer to the Supreme Court; he may file that following the disposition of this appeal.

3 . The Order was not attached to nor contained in Sumbry's Brief or Appendix. Nor are the pages of the Appendix numbered as required by Ind. Appellate Rule 51(C).

4 . Neither decision supports Sumbry's claim. Caminetti involved violations of the white slave trade act. Wallem involved an employee's claim against his employer for breach of contract, breach of settlement agreement, and fraud.

5 . Ind.Code § 33-19-3-2 provides:

A person entitled to bring a civil action or to petition for the appointment of a guardian under IC 29-3-5 may do so without paying the required fees or other court costs upon filing in court, under oath and in writing, a statement:

(1) declaring that the person is unable to make the payments or to give security for them because of the person's indigency;

(2) declaring that the person believes that the person is entitled to the redress sought in the action; and

(3) setting forth briefly the nature of the action.

6 . Sumbry did not provide us with a copy of the trial court's Order Granting Leave to Proceed as an Indigent Upon Payment of Partial Filing Fee, so we are unable to review Sum-bry's assertion thai the trial court did not properly notify him that his case would be dismissed within 45 days should the filing fee not be paid. Sumbry, as the Appellant, has the duty to provide us with all relevant documents on appeal. See Burns v. State, 255 Ind. 1, 6, 260 N.E.2d 559, 562 (1970) ("'It is the duty of the party bringing an appeal to include in the record so much of the proceedings below as is necessary for adjudication of the issues raised on appeal. The appellant having failed to do so in this case, he has waived the issues raised[.]")

7 . Sumbry directs us to no authority for his assertion. Neither case cited by Sumbry in his brief, Partlow v. Superintendent, Miami Correctional Facility, 756 N.E.2d 978 (Ind.Ct.App.2001), dealing with a trial court's improper labeling of a habeas corpus action as a post-conviction relief action, or Crafton v. Gibson, 752 N.E.2d 78 (Ind.Ct.App.2001), dealing with grandparent visitation, has any apparent relevance to this allegation of error.