Wayde Coleman v. Marion County Treasurer and Marion County Auditor (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 13, 2018
• Docket: 49A05-1711-CT-2733
• 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 Jul 13 2018, 8:38 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT, PRO SE ATTORNEY FOR APPELLEES Wayde Coleman Grant E. Helms Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wayde Coleman, July 13, 2018 Appellant, Court of Appeals Case No. 49A05-1711-CT-2733 v. Appeal from the Marion Circuit Court Marion County Treasurer and The Honorable Sheryl Lynch, Marion County Auditor, Judge Appellees. The Honorable Mark Jones, Magistrate Trial Court Cause No. 49C01-1606-CT-23136

Pyle, Judge.

Statement of the Case [1] Wayde Coleman (“Coleman”), pro se, appeals the trial court’s order, which

granted summary judgment to the Marion County Treasurer (“Treasurer”) and Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 1 of 9 the Marion County Auditor (“Auditor”) (collectively, “the County”) on

Coleman’s complaint for damages and denied Coleman’s summary judgment

motion. Coleman argues, in relevant part, that the trial court erred by granting

the County’s summary judgment motion. Due to Coleman’s lack of

argument—let alone cogent argument—showing how the trial court erred by

granting the County’s summary judgment motion, we conclude that he has

waived appellate review of his arguments relating to the trial court’s summary

judgment order.

[2] We affirm.

Issue Whether Coleman has waived appellate review of his arguments.

Facts1 [3] This appeal stems from years of proceedings, in both State and federal court,

involving Coleman’s property on Nowland Avenue in Marion County (“the

Property”), on which he failed to pay property taxes for multiple years.

Coleman purchased the Property in 2006 for $20,000. The Property contained

a house, and both were considered an “eyesore” in the neighborhood. (Ex.

Vol. 1 at 12). Coleman never lived in the house, and he accrued numerous

1 Given our resolution of this case, we will limit our recitation of facts to only those necessary to convey a general understanding of the procedural history that led to this appeal.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 2 of 9 public health violations, as well as fines and penalties, based on the untoward

condition of the Property.

[4] In early 2010, when Coleman had over $12,000 of unpaid property taxes, the

County mailed a statutory notice of tax sale to Coleman at his residence and at

the Property to notify him that it was planning to include the Property in an

upcoming tax sale. After receiving the notice, Coleman filed a petition for

bankruptcy in order to get an automatic stay and prevent the County from

including the Property in the tax sale. A few weeks later, the bankruptcy court

dismissed the petition due to Coleman’s failure to engage in prerequisite credit

counseling and his apparent false assertion that he had done so.

[5] Thereafter, on March 15, 2010, the trial court issued a Judgment and Order for

Sale (“2010 Order for Sale”), allowing for the County’s sale of the Property.

The Property was offered for sale in a tax sale, but it did not sell. As a result,

the County acquired a lien on and a tax sale certificate for the Property.2 The

County subsequently mailed the statutory post-sale and post-redemption-period

notices to Coleman at the Property but not at his residence. These notices sent

to the Property were returned to the County. In November 2010, after

receiving the County’s petition for issuance of a tax deed on the Property, the

trial court issued an Order for Issuance of a Tax Deed (2010 Order for Tax

Deed). The County, however, waited until March 2014 to take the necessary

2 See INDIANA CODE § 6-1.1-24-6.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 3 of 9 action to obtain a tax deed for the Property (“2014 Tax Deed”), which gave it

ownership of the Property. In the pending years, however, Coleman had

obtained some settlement money from two lawsuits and had spent some of that

money on renovations of the Property.

[6] In May 2014, Coleman learned that the County had obtained the 2014 Tax

Deed to the Property. Later, in May 2015, Coleman filed, in state court, the

following motions: (1) Motion for Relief from Judgment, seeking to set aside

the 2010 Order for Sale and 2010 Order for Tax Deed; and (2) Motion to Void

Tax Sale Judgment, seeking to void the 2014 Tax Deed. These motions were

based on the County’s failure to provide adequate statutory notices.3

Subsequently, in April 2016, the trial court issued an order granting Coleman’s

motions. Thus, Coleman regained ownership of the Property.

[7] Thereafter, Coleman filed a complaint and an amended complaint for damages

against the County and a notice of filing a tort claim.4 In his amended

complaint, Coleman stated that he was “seeking damages for the year of 2010

through 2016 for failure to give Notice[,]” and he requested $150,000.00 in

damages ($25,000.00 for those six years) and $450,000.00 in punitive damages.

(Appellee’s App. Vol. 2 at 17). Coleman alleged, among others, the following

3 Coleman also filed a complaint in federal court and another bankruptcy petition. Aside from noting that these proceedings delayed a ruling on Coleman’s state court proceeding, we will not go into the details of these actions. 4 Coleman also filed his complaints against the Assessor’s Office, the City of Indianapolis, Mayor Joe Hogsett, and Cindy Land, in her individual capacity as Marion County Deputy Treasurer, but these parties were later dismissed.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 4 of 9 claims: (1) unreasonable seizure; (2) intentional infliction of emotional distress;

(3) negligence; (4) malicious abuse of process; and (5) misconduct and

concealment.5

[8] In August 2017, Coleman filed a motion for summary judgment.6 Coleman

listed each of the claims he had raised in his amended complaint against the

County, but he did not explain how his designated evidence showed that he

was entitled to judgment as a matter of law on these claims. The County filed a

cross-motion for summary judgment, seeking judgment in its favor on all of

Coleman’s claims. The County argued that it was entitled to summary

judgment because the undisputed facts negated at least one element of

Coleman’s claims and because it had affirmative defenses, including immunity

under the Tort Claims Act, that barred Coleman’s claims.

[9] In November 2017, the trial court held a hearing on the pending motions.7 At

the end of the hearing, Coleman sought additional time after the hearing to

submit designated evidence, and the trial court denied Coleman’s request. The

trial court issued an order, in which it, in relevant part: (1) denied Coleman’s

5 The County filed a counterclaim for set-off against Coleman but later voluntarily moved to dismiss it. 6 Coleman titled his motion as a joint motion to include a motion for judgment on the pleadings; motion to dismiss the County’s counterclaim for lack of subject matter jurisdiction; and a request for a hearing. From the language used in the facts of Coleman’s summary judgment motion, it appears that he copied it from a motion he had filed with the federal court. 7 When Coleman filed his notice of appeal, he affirmatively stated that he did not want a transcript of any hearings; therefore, the record on appeal does not include a transcript of this summary judgment hearing.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 5 of 9 summary judgment motion; and (2) granted the County’s summary judgment

motion. Coleman now appeals.

Decision [10] Coleman, pro se, is appealing the trial court’s order granting summary

judgment to the County. Summary judgment is appropriate only where the

designated evidence shows “that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” Ind.

Trial Rule 56(C). A trial court’s grant of summary judgment is “‘clothed with a

presumption of validity,’” and an appellant has the burden of demonstrating

that the grant of summary judgment was erroneous. Williams v. Tharp, 914

N.E.2d 756, 762 (Ind. 2009) (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d

431, 434 (Ind. 1993)).

[11] Initially, we note that Coleman proceeds pro se in this appeal.

It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. These consequences include waiver for failure to present cogent argument on appeal. While we prefer to decide issues on the merits, where the appellant’s noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived. We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 6 of 9 Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal quotation

marks and citations omitted), reh’g denied. See also Zavodnik v. Harper, 17 N.E.3d

259, 266 (Ind. 2014) (explaining that a “pro se litigant is held to the same

standards as a trained attorney and is afforded no inherent leniency simply by

virtue of being self-represented”).

[12] Coleman’s brief is not the model of clarity. He boldly, and without further

explanation, asserts that this appeal is “a case of first impression.” (Coleman’s

Br. 6). Coleman contends that the trial court erred by: (1) failing to give him

clear instructions regarding what to expect at the summary judgment hearing;

(2) granting the County’s summary judgment motion; and (3) denying him a

right to a jury trial when it weighed the evidence and granted summary

judgment to the County. Although the issues in Coleman’s appeal all stem

from the trial court’s order granting summary judgment to the County, he

makes no argument—let alone cogent argument—explaining how or why the

trial court’s grant of summary judgment was erroneous or showing that a

genuine issue of material fact exists.8 Instead, he has merely regurgitated his

own summary judgment motion, the denial of which he does not challenge,

into his Appellant’s Brief.

[13] Our appellate courts have waived an appellant’s arguments where the

appellant’s failure to follow our Appellate Rules, especially the requirement to

8 Nor does he further address his assertions of error regarding a lack of instructions about the hearing or the alleged improper weighing of evidence.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 7 of 9 provide a cogent argument, impedes our ability to provide meaningful appellate

review. See, e.g., Zavodnik, 17 N.E.3d at 264 (holding that the pro se appellant’s

claim was waived because he failed to support it with cogent argument or

citation to relevant authority); Basic, 58 N.E.3d at 984 (concluding that the

appellant’s failure to develop a cogent argument and failure to comply with

other appellate rules resulted in waiver of all appellate issues); In re Garrard, 985

N.E.2d 1097, 1105 (Ind. Ct. App. 2013) (holding that the appellant had waived

all appellate issues based on his failure to make a cogent argument and follow

appellate rules), reh’g denied, trans. denied; Ramsey v. Review Bd. of Indiana Dept. of

Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (explaining that our

Court will not address arguments that are “too poorly developed or improperly

expressed to be understood” and concluding that a pro se appellant had waived

all issues on appeal). See also Ind. Appellate Rule 46(A)(8)(a).

[14] Here, Coleman’s lack of cogent argument, as well as his failure to follow other

Appellate Rules, has impeded our ability to provide meaningful appellate

review his arguments. Coleman has failed to comply with our Appellate Rules

in both his appendix and brief. Turning first to Coleman’s brief, we note that

his most serious violation is the violation of Appellate Rule 46(A)(8) by failing

to support his bare assertions of error with cogent argument or relevant citations

to the record on appeal or legal authority. Again, he provides no argument to

support his general assertion that the trial court’s grant of summary judgment to

the County was erroneous. Additionally, Coleman’s Statement of the Case

contains some argument, which is contrary to Appellate Rule 46(A)(5). As for

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 8 of 9 the appellate rule violations in Coleman’s Appellant’s Appendix, we note that,

contrary to Appellate Rule 50(A)(2), Coleman has failed to include a copy of

the CCS in his Appendix. Furthermore, he did not include a copy of the

County’s summary judgment motion, even though it is the grant of this motion

that he is attempting to appeal. “[B]oth our appellate rules as well as applicable

case law clearly indicate that when appealing the grant or denial of a motion for

summary judgment, the moving party must file with the appellate court those

materials that were designated to the trial court for purposes of reviewing the

motion for summary judgment.” Yoquelet v. Marshall County, 811 N.E.2d 826,

829-30 (Ind. Ct. App. 2004). See also Hughes v. King, 808 N.E.2d 146, 148 (Ind.

Ct. App. 2004) (dismissing appeal of the grant of summary judgment when the

appellant failed to include all designated evidence in the appendix). 9 Coleman’s

noncompliance with the Appellate Rules—most notably his failure to provide a

cogent argument to support his assertion that the trial court erred by granting

summary judgment—substantially impedes us from reaching the merits of this

appeal and results in waiver of his appellate issues. See, e.g., Basic, 58 N.E.3d at

984; Garrard, 985 N.E.2d at 1105; Ramsey, 789 N.E.2d at 487. Therefore, we

affirm the trial court’s judgment.

[15] Affirmed.

[16] Vaidik, C.J., and Barnes, Sr.J., concur.

9 We acknowledge that the County provided a copy of the missing documents in its Appellees’ Appendix.

Court of Appeals of Indiana | Memorandum Decision 49A05-1711-CT-2733 | July 13, 2018 Page 9 of 9