Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                                       Mar 20 2014, 9:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

MICHAEL W. GILLILAND                             HARRY W. CAPPEL
Liberty, Indiana                                 NATHAN H. BLASKE
                                                 Graydon Head & Ritchey LLP
                                                 Cincinnati, Ohio


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL W. GILLILAND,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 81A01-1307-MF-314
                                                 )
FIFTH THIRD MORTGAGE COMPANY,                    )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE UNION CIRCUIT COURT
                           The Honorable Matthew Cox, Judge
                            Cause No. 81C01-1107-MF-140




                                       March 20, 2014



                MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Judge
                                Case Summary and Issues

       Michael Gilliland, pro se, appeals following the trial court’s entry of summary

judgment in favor of Fifth Third Mortgage Company (“Fifth Third”) on Fifth Third’s

foreclosure complaint, raising the following issues for our review: (1) whether the trial

court erred by granting Fifth Third’s motion for summary judgment; (2) whether the trial

court improperly dismissed counterclaims asserted by Gilliland; and (3) whether the trial

court committed reversible error when it failed to rule on Gilliland’s motion to compel

discovery and motion to dismiss. We conclude the evidence designated to the trial court

produced no genuine issue of material fact, and the trial court did not err by granting Fifth

Third’s motion for summary judgment. Further, dismissal of Gilliland’s counterclaims was

not error, and the issue of the trial court’s failure to rule on Gilliland’s motions was not

preserved for appeal because Gilliland did not seek relief in accordance with Indiana Trial

Rule 53.1. We affirm.

                               Facts and Procedural History

       On July 18, 2011, Fifth Third filed a complaint against Gilliland seeking to foreclose

on a mortgage. Following a request for continuance, Gilliland filed his answer on August

16, 2011. Gilliland’s answer alleged fraud by Fifth Third and purported to reserve the right

to amend his answer in order to plead the counterclaim with particularity. The answer also

contained a myriad of affirmative defenses. On August 23, 2011, Fifth Third filed a motion

to dismiss Gilliland’s counterclaim, arguing Gilliland failed to support the counterclaim

with specific averments as required under Indiana Trial Rule 9(B). On August 30, 2011,

Gilliland filed, without service of process, an amended counterclaim alleging fraud. On

                                             2
September 22, 2011, Fifth Third filed a motion to strike Gilliland’s amended counterclaim.

The trial court held a hearing on the motions on January 30, 2012. On April 27, 2012, the

trial court granted Fifth Third’s motions to dismiss Gilliland’s original and amended

counterclaims.

       On May 3, 2012, Fifth Third filed a motion for extension of time to respond to

discovery requests by Gilliland, and the trial court granted an extension up to June 7, 2012.

Upon Fifth Third’s failure to meet that deadline, Gilliland filed a motion to compel

discovery on June 12, 2012. Gilliland’s motion to compel was never ruled upon. On

October 2, 2012, Gilliland filed a motion to dismiss pursuant to Indiana Trial Rule

37(B)(2)(c), citing Fifth Third’s failure to provide discovery. Gilliland’s motion to dismiss

was never ruled upon.

       On April 25, 2013, Fifth Third filed its motion for summary judgment. With its

motion for summary judgment, Fifth Third designated evidence that included the mortgage

agreement between Fifth Third and Gilliland and an affidavit alleging default of the

mortgage agreement and the debt owed thereon. On May 1, 2013, Fifth Third filed a notice

of service of discovery response, providing discovery materials that were due nearly a year

earlier. Also on May 1, 2013, Gilliland filed a response to Fifth Third’s motion for

summary judgment but did not support his response with any designated evidence. The

trial court awarded summary judgment to Fifth Third on July 8, 2013. This appeal

followed.




                                             3
                                 Discussion and Decision

                                I. Gilliland’s Pro Se Status

       At the outset, we note that Gilliland opted to proceed pro se both before the trial

court and on appeal. This case, as presented before us, is rife with procedural missteps.

However, a pro se litigant “cannot take refuge in the sanctuary of his amateur status.”

Peters v. Perry, 873 N.E.2d 676, 677 (Ind. Ct. App. 2007). Pro se litigants are held to the

same standards and rules of procedure as trained legal counsel, and a person who proceeds

pro se must accept the consequences of his decision. Id. at 678.

                                  II. Summary Judgment

       When reviewing a trial court’s entry of summary judgment, we apply the same

standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

judgment is appropriate where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The moving party

carries the burden of making a prima facie showing that it is entitled to summary judgment.

Manley, 992 N.E.2d at 673. If the moving party makes a prima facie showing, the burden

shifts to the non-moving party to submit evidence establishing a genuine issue of material

fact. Id. The parties must support their motions with evidence designated to the court.

T.R. 56(C). If the moving party properly supports its motion for summary judgment, the

non-moving party may not rest on mere allegations or denials of his pleading; rather, the

non-moving party must designate evidence and set forth specific facts showing a genuine

issue of material fact. T.R. 56(E). “No judgment rendered on the motion shall be reversed

on the ground that there is a genuine issue of material fact unless the material fact and the

                                             4
evidence relevant thereto shall have been specifically designated to the trial court.” T.R.

56(H).

         On appeal, Gilliland argues summary judgment was inappropriate due to a genuine

issue of material fact. Specifically, he maintains that his default and nonpayment was a

result of Fifth Third’s improper refusal of attempted payments by Gilliland. However,

Gilliland failed to designate any evidence with his response to Fifth Third’s motion for

summary judgment that would support these alleged facts.1 Without such a designation of

evidence, we are precluded from reversing the trial court on the ground that there exists a

genuine issue of material fact.

         Gilliland relies on our decision in McEntee v. Wells Fargo Bank, N.A., 970 N.E.2d

178 (Ind. Ct. App. 2012). McEntee was a foreclosure case in which we reversed a grant of

summary judgment against a pro se appellant based on a genuine issue of material fact as

to whether the bank mishandled the mortgagor’s payments. Id. at 185. However, unlike

Gilliland, the appellant in McEntee designated evidence supporting his defense that the

bank was at fault. Id. at 183-84. Thus, McEntee is no help to Gilliland.

         Fifth Third made a prima facie showing that it was entitled to foreclose on

Gilliland’s mortgage, and Gilliland did not designate evidence to rebut Fifth Third’s claim.

Therefore, there is no genuine issue of material fact, and the trial court did not err by

entering summary judgment in favor of Fifth Third.


         1
           Argument contained in a response to a motion for summary judgment is not properly designated
evidence for the purposes of summary judgment. Richards-Wilcox, Inc. v, Cummins, 700 N.E.2d 496, 499
n.3 (Ind. Ct. App. 1998).


                                                  5
                                     III. Gilliland’s Counterclaims

        Gilliland argues that the trial court abused its discretion by dismissing his

counterclaims against Fifth Third. Specifically, Gilliland contends that he reserved the

right to amend his answer and that Fifth Third’s first motion to dismiss was improper

because he had not alleged a counterclaim in his original answer.

        Gilliland’s original answer, filed on August 16, 2011, did in fact allege a

counterclaim of fraud against Fifth Third, stating: “Defendant alleges that plaintiff is not

the holder in due course of the mortgage note for which it complains and has thus

committed FRAUD upon defendant, and upon this court.” Appellant’s Appendix at 24

(emphasis in original). However, his original answer did not plead fraud with specificity

as required by Indiana Trial Rule 9(B). A claim that is deficient under Trial Rule 9(B) fails

to state a claim upon which relief may be granted. Payday Today, Inc. v. Hamilton, 911

N.E.2d 26, 33 (Ind. Ct. App. 2009), trans. denied. Thus, the counterclaim contained in

Gilliland’s original answer was properly dismissed. See Ind. Trial Rule 12(B)(6).

        Gilliland’s amended answer, filed on August 30, 2011, did not comply with service

of process requirements for pleadings. See Ind. Trial Rule 5. Thus, the trial court did not

err in dismissing Gilliland’s amended answer. See T.R. 12(B)(5).2




        2
            The Chronological Case Summary indicates that the trial court’s order dismissing Gilliland’s
counterclaims was certified as a final judgment on June 4, 2012. However, a copy of that order is not
contained in either Appellant’s Appendix or Appellee’s Appendix, so it is impossible to verify whether the
requirements of Indiana Trial Rule 54(B) were met to make the court’s order an appealable final judgment.
Assuming that order complied with Rule 54(B), Gilliland failed to file a timely notice of appeal and forfeited
the right to appeal the issue. See Ind. Appellate Rule 9(A).


                                                      6
                    IV. Trial Court’s Failure to Rule on Gilliland’s Motions

        Finally, Gilliland points out that Fifth Third failed to comply with a discovery

deadline set by the trial court. In response to Fifth Third’s untimely production of

discovery materials, Gilliland filed a motion to compel discovery and later filed a motion

to dismiss; neither motion was ruled on by the trial court. Gilliland contends that the trial

court erred by failing to rule on his motion to compel and grant his motion to dismiss. 3

Indeed, Indiana Trial Rule 53.1 sets a time limitation of thirty days during which a trial

court shall set a motion for hearing or rule on a party’s motion. The rule states that if the

trial court fails to rule on a motion within the prescribed time, then “upon application by

an interested party, the submission of the cause may be withdrawn from the trial judge and

transferred to the Supreme Court for the appointment of a special judge.” Ind. Trial Rule

53.1(A). A party who fails to take affirmative action to enforce his rights under Rule 53.1

forfeits his right to challenge the deficiency. Hepp v. Pierce, 460 N.E.2d 186, 189 (Ind.

Ct. App. 1984). In this case, Gilliland did not assert his rights and request the appointment

of a special judge under Rule 53.1. Therefore, he cannot be heard to complain on appeal

regarding the trial court’s failure to rule on his motions.




        3
          We note Gilliland attempted to raise Fifth Third’s non-compliance with discovery deadlines as a
standalone issue. However, Gilliland fails to identify an appellate remedy or demonstrate prejudice
resulting from Fifth Third’s untimely production of discovery. In our view, given the existence of an
otherwise valid summary judgment, Gilliland’s disregarded motion to dismiss presents his only potential
opportunity for relief.

                                                   7
                                         Conclusion

       Concluding the trial court’s entry of summary judgment was not error; the trial

court’s dismissal of Gilliland’s counterclaims was not error; and Gilliland failed to preserve

the issue regarding the trial court’s failure to rule on certain motions, we affirm.

       Affirmed.

BARNES, J., and BROWN, J., concur.




                                              8
