      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                 Feb 18 2016, 8:26 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 APPELLEE
      Jesse Clements                                           Pamela G. Schneeman
      Indianapolis, Indiana                                    Office of Corporation Counsel
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jesse Clements,                                          February 18, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A02-1507-MI-886
              v.                                               Appeal from the Marion Superior
                                                               Court
      The Honorable Robert R. Altice,                          The Honorable David J. Dreyer,
      Appellee-Defendant                                       Judge
                                                               Trial Court Cause No.
                                                               49D10-1312-MI-45123



      Mathias, Judge.


[1]   Jesse Clements (“Clements”) appeals pro se the Marion Superior Court’s entry

      of summary judgment in favor of the Honorable Robert Altice (“Judge Altice”)




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016           Page 1 of 7
      concerning his claim that Judge Altice violated Indiana’s Access to Public

      Records Act.

[2]   Concluding that the trial court erred when it entered summary judgment

      without holding a hearing as required by Trial Rule 56, we reverse and remand

      for proceedings consistent with this opinion.


                                        Facts and Procedural History

[3]   Judge Altice presided over certain proceedings in Jesse Clements v. Ralph Albers

      while he was a trial judge in the Marion Superior Court.1 Hearings were held in

      that case on August 7 and September 23, 2013. Prior to September 27, 2013,

      Clements paid the required $25 fee2 and received a compact disc of an audio

      recording of the August 7 hearing. However, Clements could not access the

      recording because the audio file on the compact disc provided by the court

      reporter was a proprietary file type of the court reporting software used in the

      courtroom and was incompatible with his computer, a consumer-grade PC.

[4]   Prior to September 27, 2013, Clements requested an audio recording of the

      September 23, 2013 hearing. Clements was informed that the audio recording

      could not be copied onto one compact disc, and the charge would be $50 since

      two compact discs were needed to provide a recording of the hearing.




      1
          Judge Altice was appointed to the Court of Appeals of Indiana on September 2, 2015.
      2
       Marion County Local Rule 49-AR15-307(B)(11) allows a court reporter to charge a maximum $25 fee for
      preparing a compact disc recording of a proceeding.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016     Page 2 of 7
[5]   On September 27, 2013, Clements filed a written records request with Judge

      Altice and requested that the requested audio recordings be made available to

      him “in a format that is well established and can be used across both Mac and

      PC formats like Windows Media Player.” Appellant’s App. p. 77. Clements

      also alleged that Judge Altice violated the Indiana Access to Public Records Act

      by charging him $50 for the recording of the September 23 hearing. Clements

      argued that the court could only charge him $25 for the recording.


[6]   On October 3, 2013, Judge Altice granted Clements’ request for copies of the

      audio recordings of the August 7 and September 23 hearings, subject to the

      following:

              The Court will provide said Compact Discs to Mr. Clements in
              the format he requests.


              IT IS THEREFORE ORDERED, ADJUDGED and
              DECREED that Jesse Clements is entitled to receive a copy of
              the audio recording upon strict compliance with the following
              requirements:


              1. Jesse Clements shall remit payment in the amount of twenty-
              five ($25.00) per CD to the court reporter in exchange for an
              audio recording duplicate on compact disc. Mr. Clements has
              already paid $25 for the August 7, 2013 audio recording
              duplicate and thus will only have to remit payment for the
              September 23, 2013 audio recording duplicate.


              2. Jesse Clements shall not be entitled to receive the disc and
              payment shall not be accepted until and unless Jesse Clements
              executes and returns to the Court the formal Acknowledgment
              accompanying this Order.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016   Page 3 of 7
              3. Once Jesse Clements executes the Acknowledgment and receives
              the audio recording copy, he shall be subject to the use
              restrictions described in the Acknowledgment and is hereby barred
              from broadcasting, reproducing, copying or transferring the
              audio recording in any media; and further he shall not add, delete
              or alter the audio recording in any way.


      Appellant’s App. pp. 81-82.

[7]   The Acknowledgment required Clements to comply with Indiana Judicial

      Conduct Rule 2.17, which prohibits broadcasting court proceedings. The

      Acknowledgment also stated that Clements would agree not to “broadcast said

      recording in any media whatsoever, and that [he] will not add, delete or alter

      said recording in any way . . . or reproduce, copy or transfer the audio

      recording in any way or to any other person or entity.” Id. at 83.


[8]   Clements did not sign the Acknowledgment or pay $50 to obtain the two-

      compact disc recording of the September 23 hearing. Instead, he filed a

      complaint with the Indiana Public Access Counselor. On November 5, 2013,

      the Public Access Counselor issued an advisory opinion concluding that Judge

      Altice did not violate the Access to Public Records Act.


[9]   In December 2013, Clements made an oral request to inspect the audio files of a

      hearing held on November 12, 2013, and several other records including Judge

      Altice’s bond and oath. He also requested documentation of payments “for

      each audio recording provided to any person or agency of a Superior Court 5

      hearing since January 1, 2013.” Id. at 58. Clements alleged that he never

      received a response to this request.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016   Page 4 of 7
[10]   On December 18, 2013, Clements filed pro se a complaint against Judge Altice

       initiating these proceedings. The complaint alleges that Judge Altice failed to or

       refused to provide Clements with public records to which he is legally entitled

       under the Indiana Access to Public Records Act. Clements also filed a second

       complaint with the Public Access Counselor concerning his December 2013

       oral request to inspect the audio file of the November 12, 2013 hearing and

       other documents. The Public Access Counselor stated he was “prohibited by

       law from issuing an opinion in this matter” because the December public

       records request is at issue in Clements’ lawsuit filed against Judge Altice. Id. at

       89.


[11]   Judge Altice filed a motion for summary judgment on February 27, 2015. In

       support of his motion, Judge Altice designated as evidence Clements’ amended

       complaint and the exhibits attached thereto. On March 30, 2015, Clements filed

       a timely response and a request for a hearing on Judge Altice’s motion for

       summary judgment. On April 2, 2015, the trial court granted Judge Altice’s

       motion for summary judgment without holding the requested hearing.

       Clements filed a motion to correct error, which was also denied. Clements now

       appeals.


                                         Discussion and Decision

[12]   First, we observe that Clements is proceeding pro se. It is well settled that pro se

       litigants are held to the same standard as trained counsel. Ballaban v.

       Bloomington Jewish Cmty., Inc., 982 N.E.2d 329, 334 (Ind. Ct. App. 2013). In his

       pleadings and motions filed in the trial court, and in his briefs filed in this
       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016   Page 5 of 7
       appeal, Clements makes reprehensible ad hominem attacks on Judge Altice’s

       character and legal acumen. We strongly admonish Clements that such

       offensive language has no place in legal proceedings of any sort at any time and

       that pleadings containing such attacks are subject to being stricken in their

       entireties.


[13]   Clements raises four issues in this appeal, but the following claim is dispositive:3

       whether the trial court erred when it granted Judge Altice’s motion for

       summary judgment without holding a hearing. Clements filed a timely response

       to Judge Altice’s motion and simultaneously requested a hearing on the

       motion. Appellant’s App. p. 8.

[14]   Indiana Trial Rule 56 (C) provides that a party responding to a motion for

       summary judgment


               shall have thirty (30) days after service of the motion to serve a
               response and any opposing affidavits. The court may conduct a
               hearing on the motion. However, upon motion of any party
               made no later than ten (10) days after the response was filed or
               was due, the court shall conduct a hearing on the motion which




       3
         Clements also argues that Judge Altice’s motion for summary judgment was a “procedural nullity.”
       Appellant’s Br. p. 14. Specifically, Judge Altice was given an extension of time to file his motion until
       February 11, 2015. On that date, Judge Altice filed a second motion for an extension of time. However,
       Judge Timothy Oakes recused from the case prior to February 11, and after several judges were appointed
       but also recused, Judge David Dreyer was finally appointed as a special judge on March 30, 2015. See
       Appellant’s App. pp. 6-7. Judge Altice filed his motion for summary judgment on February 27, even though
       the court had not ruled on his motion for extension of time. However, Clements timely filed his response and
       has not established any error or prejudice because Judge Altice’s motion for summary judgment was filed
       while the motion for extension of time was pending.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016          Page 6 of 7
                shall be held not less than ten (10) days after the time for filing
                the response.


       Emphasis added.

[15]   The Marion County Local Rules also provide that oral argument requested on a

       motion for summary judgment “shall be set for hearing upon request of any

       party.” Marion County LR49-TR5-203(C) (emphasis added).


[16]   Trial Rule 56(C) unambiguously requires the trial court to hold a hearing when

       a party makes a timely request. Clements made a timely request for a hearing

       on Judge Altice’s motion for summary judgment. Therefore, the trial court

       erred when it ignored the mandate of Trial Rule 56(C) and its own local court

       rules.4 See also Otte v. Tessman, 426 N.E.2d 660, 661 (Ind. 1981) (stating

       “[p]rejudice is presumed on appeal where a trial court fails to follow the

       mandate of Trial Rule 56 . . .”). We therefore reverse the trial court’s entry of

       summary judgment and remand for a hearing.


[17]   Reversed and remanded for proceedings consistent with this opinion.


       Kirsch, J., and Brown, J., concur.




       4
         Clements is well aware that he is entitled to a hearing under Trial Rule 56(C) if the request is filed within
       the rules time limits. See Clements v. Curry, 13 N.E.3d 557, 2014 WL 2202724 (Ind. Ct. App. May 28, 2014).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-MI-886 | February 18, 2016              Page 7 of 7
