      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               Feb 17 2016, 8:35 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
      John Mazurak
      Westville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John Mazurak,                                            February 17, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1502-PL-57
              v.                                               Appeal from the Allen Superior
                                                               Court
      Erie Insurance Exchange,                                 The Honorable Craig J. Bobay,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               02D01-1212-PL-423



      Mathias, Judge.


[1]   After John Mazurak (“Mazurak”) refused to answer Erie Insurance Exchange’s

      (“Erie Insurance”) requests for admissions by invoking his privilege against self

      incrimination, Erie Insurance filed a motion for summary judgment. In support

      of its motion, Erie Insurance argued that the requests for admissions were

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016     Page 1 of 8
      deemed admitted by operation of Trial Rule 36. The Allen Superior Court

      entered summary judgment in favor of Erie Insurance and awarded Erie

      Insurance $2,368.63, plus interest and court costs. Mazurak appeals pro se the

      judgment and argues he properly invoked his Fifth Amendment right against

      self incrimination when he refused to answer Erie Insurance’s requests for

      admissions; therefore, the trial court erred when it granted Erie Insurance’s

      motion for summary judgment.


[2]   We affirm.


                                      Facts and Procedural History

[3]   On July 14, 2012, Mazurak was involved in an automobile accident with Janet

      Claassen (“Claassen”) in Fort Wayne, Indiana. Claassen’s vehicle was

      damaged in the accident. Claassen’s insurer, Erie Insurance, paid the $2,368.63

      claim.


[4]   Thereafter, Erie Insurance filed a complaint against Mazurak in Allen Superior

      Court. On July 8, 2014, Erie Insurance served requests for admissions on

      Mazurak. Mazurak filed the following unsworn response:1

               1. The response to the Plaintiff’s Trail [sic] Rules 33, 34, 36 in the
               criminal/civil matter thus is subject to criminal penalties for
               sworn statements.
               2. The Named lean holder of the defendant trust was served




      1
        Mazurak inexplicably refers to himself as the “Named lean holder” in his response to Erie Insurance’s
      requests for admissions.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016           Page 2 of 8
              paper on July 11, 2014.
              3. The Named lean holder of the defendant trust hereby takes his
              5th amendment of U.S. Constitution right no [sic] to incriminate
              himself by answering Trial Rules 33, 34, 36.
              4. The Named lean holder of Defendant trust objects to Court
              admitting Plaintiffs unanswered documents as evidence without
              proof. This is an outrageous violation of Trial Rules.


      Appellant’s App. p. 17.


[5]   On September 24, 2014, Erie Insurance filed a motion for summary judgment

      and argued that its requests for admissions were deemed admitted pursuant to

      Trial Rule 36 because Mazurak failed to admit or deny Erie Insurance’s

      Request for Admissions. Therefore, Erie Insurance argued that Mazurak

      admitted that he negligently caused the damage to its insured’s vehicle, and it

      was entitled to judgment as a matter of law.

[6]   On February 3, 2015, the trial court issued an order granting Erie Insurance’s

      motion for summary judgment, which provides in pertinent part:

              The Court is unable to consider Mazurak’s response because it
              was unsworn. Where the content of the uncertified exhibits is at
              issue at summary judgment, such exhibits “will be insufficient
              and consideration of them is improper.” “An unsworn statement
              or unverified exhibit does not qualify as proper evidence” to
              support or oppose summary judgment. Therefore, Mazurak’s
              unsworn statements contained in his September 29, 2014
              response are not proper for the Court’s consideration at this
              juncture.

              Erie sent Requests for Admission to Mazurak during discovery,
              to which Mazurak never properly responded. Ind. Trial Rule

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 3 of 8
              36(A) provides that Requests for Admissions are deemed
              admitted if not responded to within thirty days. Because
              Mazurak did not file a proper verified response to Erie’s Motion
              for Summary Judgment and did not deny Erie’s Request for
              Admissions, the undisputed material facts show that Mazurak
              owes Erie a principle [sic] balance of $2368.63.


      Appellant’s App. pp. 23-24 (internal citations omitted). For the reasons set forth

      in its ruling, the trial court entered a judgment against Mazurak in the amount

      of $2,368.63, plus 8% interest from the date of the order and court costs.

      Mazurak now appeals.


                                           Standard of Review

[7]   Erie Insurance did not file an appellee’s brief. When an appellee fails to submit

      a brief, we do not undertake the burden of developing appellee's arguments, and

      we apply a less stringent standard of review. Spencer v. Spencer, 990 N.E.2d 496,

      497 (Ind. Ct. App. 2013). We may reverse if the appellant establishes prima

      facie error, which is error at first sight, on first appearance, or on the face of it.

      In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied.

      The prima facie error rule relieves this Court of the burden of controverting

      arguments advanced in favor of reversal where that burden properly rests with

      the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002). Still,

      we are obligated to correctly apply the law to the facts in the record in order to

      determine whether reversal is required. Trinity Homes, LLC v. Fang, 848 N.E.2d

      1065, 1068 (Ind. 2006).




      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 4 of 8
                                        Discussion and Decision

[8]   Mazurak claims that the trial court erred when it entered summary judgment in

      favor of Mazurak because he properly exercised his Fifth Amendment right

      when he refused to admit or deny Erie Insurance’s Requests for Admissions.


              We review a trial court's order granting summary judgment de
              novo. And we apply the same standard as the trial court:
              summary judgment is appropriate only where the moving party
              demonstrates there is no genuine issue of material fact and he is
              entitled to judgment as a matter of law. If the moving party
              carries his burden, the non-moving party must then demonstrate
              the existence of a genuine issue of material fact in order to
              survive summary judgment. Just as the trial court does, we
              resolve all questions and view all evidence in the light most
              favorable to the non-moving party, so as to not improperly deny
              him his day in court.


      Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014)

      (citations omitted).


[9]   Requests for Admission are governed by Indiana Trial Rule 36, which provides

      that a party may serve upon any other party a written request for the admission

      of the truth of any matters within the scope of Indiana Trial Rule 26(B), which

      governs the scope of discovery.


              The matter is admitted unless, within a period designated in the
              request, not less than thirty [30] days after service thereof or
              within such shorter or longer time as the court may allow, the
              party to whom the request is directed serves upon the party
              requesting the admission a written answer or objection addressed
              to the matter, signed by the party or by his attorney. If objection

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 5 of 8
               is made, the reasons therefor shall be stated. The answer shall
               specifically deny the matter or set forth in detail the reasons why
               the answering party cannot truthfully admit or deny the matter.
               A denial shall fairly meet the substance of the requested
               admission, and when good faith requires that a party qualify his
               answer or deny only a part of the matter of which an admission is
               requested, he shall specify so much of it as is true and qualify or
               deny the remainder.


       Ind. Trial Rule 36(A).


[10]   In addition, Rule 36(B) provides in pertinent part that “[a]ny matter admitted

       under this rule is conclusively established unless the court on motion permits

       withdrawal or amendment of the admission. . . . Any admission made by a

       party under this rule is for the purpose of the pending action only and is not an

       admission by him for any other purpose nor may it be used against him in any

       other proceeding.”


[11]   Mazurak’s response to Erie Insurance’s Request for Admissions states in

       pertinent part:


               The response to the Plaintiff’s Trail [sic] Rules 33, 34, 36 in the
               criminal/civil matter thus is subject criminal for sworn
               statements. . . . [Mazurak] hereby takes his 5th amendment of
               U.S. Constitution right no [sic] to incriminate himself by
               answering Trial Rules 33, 34, 36.


       Appellant’s App. p. 17.


[12]   The Fifth Amendment privilege against self-incrimination may be “asserted in

       any proceeding, civil or criminal, administrative or judicial, investigatory or

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 6 of 8
       adjudicatory; and it protects against any disclosures which the witness

       reasonably believes could be used in a criminal prosecution or could lead to

       other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441,

       444-45 (1972). However, the privilege is not without its limits. It “must be

       confined to instances where the witness has reasonable cause to apprehend

       danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486

       (1951); see also Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 189 (2004)

       (“The Fifth Amendment prohibits only compelled testimony that is

       incriminating.”).

[13]   An individual may not refuse to answer any and all questions by virtue of the

       Fifth Amendment's self-incrimination clause. In re High Fructose Corn Syrup

       Antitrust Litig., 295 F.3d 651, 663 (7th Cir. 2002). Nor is an individual

       “exonerated from answering merely because he declares that in so doing he

       would incriminate himself – his say-so does not of itself establish the hazard of

       incrimination.” Hoffman, 341 U.S. at 486.


[14]   Mazurak claimed that answering the Request for Admissions would

       incriminate himself but does not provide any further explanation. Simply

       claiming his right against self incrimination is not enough. See id.; See also T.R.

       36(A) (“If objection is made, the reasons therefor shall be stated. The answer

       shall specifically deny the matter or set forth in detail the reasons why the

       answering party cannot truthfully admit or deny the matter.”). Moreover, the

       Request for Admissions, on its face, contains no questions the answers to which



       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 7 of 8
       would implicate an individual, and specifically Mazurak, in any criminal

       activity. See Appellant’s App. pp. 12-14.


[15]   For these reasons, we conclude that the trial court did not err when it found

       that Mazurak failed to properly respond to Erie Insurance’s Request for

       Admissions. See id. at 23-24 (citing T.R. 36(A)). Also, the trial court properly

       determined that the Request for Admissions were deemed admitted. Therefore,

       the undisputed material facts established that Mazurak’s negligence caused

       damage to Claassen’s vehicle, which was insured by Erie Insurance, and Erie

       Insurance was entitled to the judgment entered as a matter of law.

[16]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PL-57 | February 17, 2016   Page 8 of 8
