MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jun 21 2018, 8:52 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary M. Selig                                            Curtis T. Hill, Jr.
Law Office of Gary M. Selig, P.C.                        Attorney General of Indiana
Indianapolis, Indiana
                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Cooper,                                          June 21, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1712-CT-2801
        v.                                               Appeal from the Marion Superior
                                                         Court
Indiana Department of                                    The Honorable Michael D. Keele,
Correction,                                              Special Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D07-1602-CT-6542



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018             Page 1 of 10
                                             Case Summary
[1]   Timothy Cooper (“Cooper”) appeals the entry of summary judgment for the

      Indiana Department of Correction (“DOC”) in his civil lawsuit. The sole issue

      he raises on appeal is whether the DOC was entitled to judgment as a matter of

      law.1 However, we hold that Cooper has waived that issue by failing to make

      cogent argument and cite legal authority as required by Indiana Appellate Rule

      46(A)(8).


[2]   Affirmed.



                               Facts and Procedural History
[3]   On October 2, 2005, the State charged Cooper with failure to register as a sex

      offender, as a Class D felony,2 in Marion County Cause No. 49F09-0509-FD-

      167240 (“Cause No. 167240”), and the Marion County Superior Court issued a

      warrant for Cooper’s arrest that same day.


[4]   On December 11, 2013, the LaPorte Circuit Court sentenced Cooper in

      LaPorte County Cause No. 46C01-1304-FD-1157 (“Cause No. 1157”) to 540




      1
        Although Cooper’s “Statement of Issues” states, “Whether there existed material issues of fact that would
      preclude entry of Summary Judgment against” him, his briefs do not point to any contested issues of material
      fact. Rather he contends that the trial court erred in failing to find a duty of care, which is a matter of law.
      J.B. Hunt Transport, Inc. v. Guardianship of Zak, 58 N.E.3d 956, 971 (Ind. Ct. App. 2016), trans. denied.
      2
          Ind. Code § 11-8-8-17 (2005).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018               Page 2 of 10
      days imprisonment for failure to register as a sex offender as a Class D felony. 3

      On January 22, 2014, Cooper arrived at the DOC’s Reception Diagnostic

      Center (“RDC”) where he was interviewed by Classification Specialist Rian

      Clinton (“Clinton”) pursuant to standard DOC procedure. Clinton prepared a

      Diagnostic and Classification Summary, dated January 28, 2014, which

      indicated that Cooper had “no detainers.” Id. at 38. That conclusion was

      based on Clinton’s review of the Pre-Sentence Investigation Report (“PSI”) and

      a search of the Indiana Data and Communications System (“IDACS”), neither

      of which disclosed any detainers or outstanding warrants for Cooper.


[5]   On February 3, 2014, the DOC transferred Cooper from the RDC to Westville

      Correctional Facility (“WCF”), where he remained until his release on

      February 25, 2014. On February 5, DOC Caseworker Elizabeth Malstaff

      (“Malstaff”) met with Cooper and checked the DOC’s Offender Information

      System (“OIS”) to determine whether Cooper had any outstanding warrants.

      Malstaff found none.


[6]   On February 11, Cooper signed a conditional parole release agreement which

      provided that, upon his release from DOC custody on February 26, Cooper

      would report to Brother’s Keeper in Gary. The release also provided that

      Cooper would “make every effort to remain gainfully employed” after his




      3
          I.C. § 11-8-8-17 (2013).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018   Page 3 of 10
      release. Appellee’s App. at 66. Cooper had “a job lined up” that was to begin

      when he was released. Appellant’s App. at 113.


[7]   On February 20, Rhonda Williamson (“Williamson”), a Release Specialist in

      the DOC’s Sentence Computation/Release Unit, received a copy of Cooper’s

      release paperwork from WCF. While processing the release paperwork,

      Williamson checked the Justice Information System of Indianapolis/Marion

      County (“JUSTIS”) and discovered that Cooper had an outstanding arrest

      warrant under the Marion County Case, Cause No. 167240. Williamson

      contacted Release Assistant Linda Jeffers (“Jeffers”) at WCF and informed her

      that Cooper had an outstanding warrant in Marion County. Jeffers then

      contacted the Marion County Sherriff’s Department who informed her that

      Marion County would pick up Cooper on his release date.


[8]   On February 21, Jeffers met with Cooper and informed him that the Marion

      County Sheriff’s Department would pick him up from WCF on his release date,

      due to the outstanding arrest warrant in Marion County. Cooper then signed a

      revised conditional parole release agreement which provided that he was to

      report to Brother’s Keeper upon his release from the Marion County Jail.


[9]   On February 25, the DOC released Cooper from WCF and into the Marion

      County Sheriff’s custody. Cooper remained in the Marion County Jail for

      eighty-six days, at which time the Marion County Prosecutor filed a motion to

      dismiss the charges in Cause No. 167240 and Cooper was released from jail.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018   Page 4 of 10
[10]   On February 23, 2016, Cooper filed a complaint against the DOC, alleging that

       the DOC was negligent because it “should have known or reasonably could

       have ascertained that [Cooper] had a detainer and/or hold from … Marion

       County and should have informed him of this fact” earlier than it did.

       Appellant’s App. at 12. The complaint further alleged that, because Cooper did

       not have employment upon his release from jail, he could not afford his

       diabetes medication, which he believed resulted in his hospitalization for an

       infection in July 2014. Cooper sought damages from the DOC for “being held

       in the Marion County Jail for 86 days, not being able to be gainfully employed

       upon being released, loss of wages, pain, suffering[,] and mental anguish.” Id.

       at 13.


[11]   On June 30, 2017, the DOC moved for summary judgment on Cooper’s civil

       complaint partially on the grounds that the DOC had no duty of care as to

       Cooper.4 On August 25, Cooper filed his response to the motion for summary

       judgment, which included his affidavit. Cooper contended in his affidavit that

       he was not aware of the outstanding Marion County arrest warrant until Jeffers

       advised him of it on February 21, 2014. He contended that, had he known

       about the detainer “2 or 3 weeks earlier,” he would have “had a realistic

       opportunity” to challenge the validity of the detainer. Id. at 113. He argued

       that, because of the DOC’s alleged untimely notice to him of the detainer, he

       was taken into custody in Marion County and that “caus[ed] [him] to forfeit the



       4
           The DOC also raised various affirmative defenses.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018   Page 5 of 10
       employment and living arrangements [he] had made.” Id. at 114. The trial

       court held oral argument on the summary judgment motion on November 13

       and granted the DOC’s motion on that same day. This appeal ensued.



                                    Discussion and Decision
[12]   Cooper challenges the entry of summary judgment in the State’s favor;

       specifically, he contends that the trial court erred in finding the DOC did not

       owe him a duty of care and, thus, could not be negligent.5 We review de novo

       whether a trial court properly granted summary judgment. Hughley v. State, 15

       N.E.3d 1000, 1003 (Ind. 2014). However, we do not reach the merits of

       Cooper’s appeal because he has waived his only claim.


[13]   Indiana Appellate Rule 46(A)(8) requires that each contention made in the

       argument section of an appellant’s brief “must be supported by citations to the

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

       on.” This means that an appellant’s argument section must contain


                a clear presentation of appellant’s contentions with respect to the
                issues presented, the reasons in support of the contentions with
                any applicable citation to authorities, statutes, and parts of the




       5
         To premise a recovery on a theory of negligence, a plaintiff must establish (1) a duty owed to the plaintiff
       by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty.
       Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011). “Absent a duty, there can be no breach, and therefore,
       no recovery for the plaintiff in negligence.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018              Page 6 of 10
               record relied upon, and a clear showing of how the issues and
               contentions relate to particular facts of the case under review.


       Dortch v. Lugar, 266 N.E.2d 25, 44 (Ind. 1971) (explaining former Appellate

       Rule 8.3, the precursor to current Rule 46), abrogated on other grounds by Collins v.

       Day, 644 N.E.2d 72 (Ind. 1994). We will not review undeveloped arguments,

       for “a court which must search the record and make up its own arguments

       because a party has presented them in perfunctory form runs the risk of being

       an advocate rather than an adjudicator.” Keller v. State, 549 N.E.2d 372, 373

       (Ind. 1990). Thus, “[i]t is not sufficient for the argument section that an

       appellant simply recites facts and makes conclusory statements without analysis

       or authoritative support.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind.

       Ct. App. 2014).


[14]   Cooper’s brief does just that. His “legal analysis” section of his brief is a little

       over one page long. In it, he makes the bald assertion that the DOC assumed a

       duty of care by requiring inmates to make arrangements for work after

       incarceration, and that “duty of care” required the DOC to “determine in a

       timely manner whether there were any detainers or holds on the prisoner

       preventing their release.” Appellant’s Br. at 8. Cooper cites no legal authority

       for these claims. Rather, he cites one case for the proposition that the existence

       of a duty of care is a question of law, and one case defining detrimental reliance

       as “a plaintiff’s reasonable reliance on the defendant’s misrepresentation.” Id.

       at 8-9 (citing BSA Const. LLC v. Johnson, 54 N.E.3d 1026, 1029 (Ind. Ct. App.

       2016), and Munsell v. Hambright, 776 N.E.2d 1272, 1281 (Ind. Ct. App. 2002)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018   Page 7 of 10
       Neither of those cases supports his claim that the DOC owed him a duty of

       care.


[15]   Cooper contends that he does not provide legal authority for his claim that the

       DOC assumed a duty of care because that contention “may in fact be a matter

       of first impression.” Id. at 9 n.2. However, even when there is a lack of legal

       authority directly on-point, an appellant must provide cogent argument and

       legal analysis. See South Bend Tribune v. Elkhart Cir. Ct., 691 N.E.2d 200, 202 n.6

       (Ind. Ct. App. 1998), trans denied. Without such development of the argument,

       an appellant puts the reviewing court in the position of having to make his

       arguments for him—which we will not do. See, e.g., Abbott v. Bates, 670 N.E.2d

       916, 924 (Ind. Ct. App. 1996).


[16]   And Cooper’s reply brief did not cure the defects in his argument. The State

       attempted to make some sense of Cooper’s argument by discussing the

       “assumed duty [of care] doctrine” and why it does not apply here. Appellee’s

       Br. at 21-22 (citing South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903 (Ind.

       2014), and Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014)). The State also

       engaged in the Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), disapproved on other

       grounds by Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind.

       2016), analysis to show why we should not recognize any new common law

       duty of care in this case. Id. at 24-28. However, in his reply brief, Cooper did

       not respond at all to the State’s argument regarding the assumed duty of care

       doctrine. And, in an apparent contradiction of his earlier claim that the duty of

       care here is a matter of first impression, he contended that the Webb analysis

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018   Page 8 of 10
       does not apply in this case because the duty of care has already been

       recognized. Appellee’s Reply Br. at 6. But, again, Cooper did not provide us

       with any legal authority for his claim that such a duty exists.


[17]   A duty of care exists only as a matter of law. E.g., J.B. Hunt Transport, Inc. v.

       Guardianship of Zak, 58 N.E.3d 956, 971 (Ind. Ct. App. 2016) (quotation and

       citation omitted) (“It is well established that the duty to exercise care for the

       safety of another arises as a matter of law out of some relationship existing

       between the parties.”), trans. denied. Therefore, either the alleged duty of care at

       issue in this case has already been legally recognized, in which case Cooper

       must provide us with legal authority for its existence; or such a duty of care

       does not yet exist, in which case Cooper must engage in the Webb legal analysis

       and make a cognizable argument to show why we should recognize a new

       common law duty of care. See Rogers v. Martin, 63 N.E.3d 316, 323-24 (Ind.

       2016) (noting the Webb analysis applies only when there does not already exist a

       recognized duty of care). Cooper has done neither.6 And, “although failure to

       comply with the appellate rules does not necessarily result in waiver of an

       issue,” waiver is appropriate where, as here, “the noncompliance impedes our

       appellate review.” In re Moeder, 27 N.E.3d 1089, 1097 n.4 (Ind. Ct. App. 2015),

       trans. denied.




       6
         Cooper’s cursory contention in his reply brief that, if Webb applies, the first two factors of the Webb analysis
       “seem to” be in his favor does not provide cogent argument or legal analysis. Id. That is, he does not state
       how the relationship of the parties created a duty of care or how the harm to him was foreseeable.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018                 Page 9 of 10
                                                 Conclusion
[18]   Because Cooper has provided no cogent argument, legal authority, or legal

       analysis for his claim that the DOC assumed a duty of care for him, he has

       waived that claim on appeal.7


[19]   Affirmed.


       Crone, J., and Brown, J., concur.




       7
         Because we hold that Cooper has waived his duty of care claim, we do not address the State’s other
       defenses, i.e., statute of limitations, contributory negligence, and quasi-judicial immunity. We note,
       however, that Cooper also failed to provide cogent argument as to any of those defenses.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CT-2801 | June 21, 2018            Page 10 of 10
