MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 25 2019, 8:49 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEES
Robert Holland                                           Robert J. Dignam
Gary, Indiana                                            Jessica L. Mullen
                                                         O’Neill McFadden & Willett LLP
                                                         Schererville, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Holland, The Law Firm                             November 25, 2019
of Robert M. Holland III, and                            Court of Appeals Case No.
Holland Real Estate, LLC,                                19A-PL-117
Appellants-Plaintiffs,                                   Appeal from the Porter Superior
                                                         Court
        v.                                               The Honorable Mary R. Harper,
                                                         Judge
Lake County Sheriff’s                                    Trial Court Cause No.
Department, Lake County                                  64D05-1808-PL-7586
Sheriff Dominguez, Lake
County Sheriff Buncich, Sheriff
Deputy Lieutenant Hogan,
Sheriff Deputy Corporal Evon
Foster, Sheriff Deputy John Doe,
Sheriff Deputy Sergeant
Montgomery, Sheriff Deputy
Sergeant Dorsey, Sheriff Deputy
McMillan, Lake County Auditor


Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019                   Page 1 of 17
      Peggy Katona, Lake County
      Treasurer John Patelas, Lake
      County Assessor Hank Adams,
      Gary Calumet Township
      Assessor Jackie Collins, Lake
      County Board of
      Commissioners, Lake County
      Municipal Government,
      Appellees-Defendants.



      Friedlander, Senior Judge.


[1]   Robert Holland (“Holland”), The Law Firm of Robert M. Holland III, and

      Holland Real Estate, LLC appeal the trial court’s denial of his motion to set

      aside the court’s order dismissing with prejudice his complaint against the Lake

      County Sheriff’s Department, Lake County Sheriff Dominguez, Lake County

      Sheriff Buncich, Sheriff Deputy Lieutenant Hogan, Sheriff Deputy Corporal

      Evon Foster, Sheriff Deputy John Doe, Sheriff Deputy Sergeant Montgomery,

      Sheriff Deputy Sergeant Dorsey, Sheriff Deputy McMillan, Lake County

      Auditor Peggy Katona, Lake County Treasurer John Patelas, Lake County

      Assessor Hank Adams, Gary Calumet Township Assessor Jackie Collins, Lake

      County Board of Commissioners, Lake County Municipal Government

      (collectively “Lake County Defendants”). We affirm.


[2]   Holland presents five issues, which we restate as one: whether the trial court

      erred by denying Holland’s motion to set aside.



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 2 of 17
[3]   We begin with some background information. On May 28, 2013, Holland, pro

      se, filed a complaint in the U.S. District Court for the Northern District of

      Indiana. That court struck Holland’s original complaint of 467 pages and

      allowed him to submit an amended complaint. His amended complaint was

      forty-five pages long and named twenty-six defendants. Holland alleged that

      the defendants were part of a vast conspiracy, the purpose of which was to

      cause injury to him, his business, his profession, and his property. He claimed

      that, in furtherance of the conspiracy, the defendants had engaged in a pattern

      of racketeering with the specific purpose of violating his rights. In its opinion,

      the court quoted from its decision in another of Holland’s cases in which it

      determined that Holland’s allegations “‘about a vast conspiracy involving his

      family members, officials from different towns, private hospitals, and multiple

      state court judges [are] in the vein of “fantastic” or “delusional,” warranting

      dismissal of the complaint as frivolous.’” Holland v. Lake Cty. Mun. Gov’t, No.

      2:13-CV-179-TLS, 2013 WL 5230242, at *3 (N.D. Ind. Sept. 16, 2013) (quoting

      Holland v. City of Gary, No. 2:12-CV-62-TS, 2012 WL 974882, at *3 (N.D. Ind.

      Mar. 21, 2012)). The court also noted that it had ruled against Holland two

      additional times in his attempts to sue various combinations of Lake County

      and Gary officials in federal court. Holland, 2013 WL 5230242, at *3 n.2 (citing

      Holland v. City of Gary, No. 2:10-CV-454-PRC (N.D. Ind. filed Nov. 15, 2010)

      and Holland v. Lake Cty. Mun. Gov’t, No. 2:13-CV-180-PPS (N.D. Ind. filed May

      28, 2013)). Stating that it again found Holland’s allegations of a conspiracy to

      be “in the vein of ‘fantastic’ or ‘delusional,’” the court dismissed Holland’s

      complaint with prejudice as frivolous and noted that many of his claims would
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 3 of 17
      be barred on other grounds even if they were not frivolous. Holland, 2013 WL

      5230242, at *3.


[4]   After Cause 2:13-CV-179-TLS was dismissed in the federal court in 2013,

      Holland filed his complaint in the present case in state court in November 2017.

      In December, the Lake County Defendants filed a request to remove the case to

      federal court because it included federal claims. The federal court issued an

      order dismissing the federal claims without prejudice and remanding the

      remaining state claims to the state court. In its order, the court stated that

      Holland cannot litigate in the federal court because he is “a restricted filer.”

      Federal Court Order in Cause 2:17-CV-456, Appellees’ App. Vol. II, pp. 121-

      22.


[5]   After the case was remanded to the state court in Lake County, Holland filed a

      request for change of venue on January 16, 2018. In the meantime, on January

      29, the Lake County Defendants filed a motion to dismiss the action, to which

      Holland filed a response. In June, the case was venued to Porter County, and,

      on August 17, the trial court granted the Lake County Defendants’ motion to

      dismiss and ordered the case dismissed with prejudice. On September 17, 2018,

      Holland filed a motion to set aside the court’s order of dismissal, which the

      court denied on December 13. This appeal ensued.


[6]   As a preliminary matter, we note that Holland is proceeding pro se. It is well

      settled that pro se litigants are held to the same legal standards as licensed

      attorneys. Lowrance v. State, 64 N.E.3d 935 (Ind. Ct. App. 2016), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 4 of 17
      This means that they must follow the established rules of procedure and accept

      the consequences when they fail to do so. Id. We further observe that Holland
                                                                     1
      was a licensed attorney in this state in the past. See Complaint, Appellees’

      App. Vol. II, p. 11, ¶ 6; Appellees’ Br. p. 27.


[7]   The Lake County Defendants contend that Holland has waived review of his

      claims because he has failed to present cogent argument. It is well established

      that we will neither consider an appellant’s assertions upon which he has not

      presented cogent argument supported by authority and references to the record

      as required by the rules nor address arguments that are either inappropriate,

      improperly expressed, or too poorly developed to be understood. Lasater v.

      Lasater, 809 N.E.2d 380 (Ind. Ct. App. 2004). It is true that Holland’s brief to

      this Court scarcely adheres to the rules of appellate procedure and is replete

      with rambling claims that are baseless and repetitious. Nevertheless, we will

      address what we are able to discern are his concerns before discussing the one

      genuine, dispositive issue in this case.


[8]   In Issue #1 in his brief, Holland alleges several “clerical errors” that he claims

      require reversal of the trial court’s dismissal of his complaint. Appellants’ Br. p.

      24. Holland maintains the court’s dismissal order incorrectly states the filing

      date of his complaint in this matter, the authority of the Lake County and




      1
       According to the public records of the Indiana State Bar, Holland was admitted to practice law in 1997 but
      was suspended in October 2009. His license remains suspended. See
      https://courtapps.in.gov/rollofattorneys (last visited November 18, 2019).

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019                Page 5 of 17
       Porter County courts to venue the case to Porter County, the court’s review of

       the case, Holland’s filings in response to the Lake County Defendants’ motion

       to dismiss, and his affiliation with the entities of Holland Real Estate LLC and

       The Law Firm of Robert M. Holland III. In addition, Holland contends the

       court failed to provide notice of the change of venue.


[9]    As for Holland’s complaint, it is file-stamped with the date used by the court in

       its order of dismissal. With regard to the authority of the county courts,

       Holland simply makes a bald assertion supported by no cogent argument and

       no citation to authority. We will not consider an appellant’s assertions when he

       has failed to present a cogent argument supported by authority as required by

       the rules. Shepherd v. Truex, 819 N.E.2d 457 (Ind. Ct. App. 2004). If we were to

       address such arguments, we would be forced to abdicate our role as an

       impartial tribunal and would instead become an advocate for one of the parties;

       this we clearly cannot do. Id. These principles apply equally to Holland’s

       allegations concerning the court’s review of the case, his filings, and his

       relationship to the businesses. Moreover, nothing about any of these alleged

       clerical errors would affect the court’s decision regarding its dismissal of

       Holland’s complaint.


[10]   Finally, as to notice of the change of venue, we first note that Holland is the

       party that requested the change of venue. See Appellants’ App. Vol. 2, p. 8.

       Moreover, he participated in striking from the list of possible venue counties.

       See id. at 23. Additionally, the court’s CCS shows notice to the parties of its

       grant of the motion for change of venue. See id. at 33. It is a well-settled

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 6 of 17
       principle that the trial court speaks through its CCS. City of Indianapolis v. Hicks,

       932 N.E.2d 227 (Ind. Ct. App. 2010) (citing Minnick v. Minnick, 663 N.E.2d

       1226, 1228 (Ind. Ct. App. 1996) (“A challenge to the mailing of notice is

       precluded when the docket clearly states that notice was mailed.”)), trans.

       denied.


[11]   Holland’s Issue #2 begins and ends with a compilation of ramblings that set

       forth no coherent claims. In between, he briefly challenges the trial court’s

       reliance on res judicata for dismissal of his lawsuit, and we will address that

       issue later in our discussion. Further, as he did in his first issue, Holland alleges

       that statements in the court’s order are erroneous. In addition to general

       assertions that the court’s order is “full of error” and is “clear error,” Holland

       sets forth these purported errors:


           • references to: claims in his complaint, a “rule” of the sheriff’s
             department, claims that may be raised in a Rule 12(B)(6) motion, and the
             federal court’s order dismissing his federal claim;
           • the characterization of his affiliation with the businesses bearing his
             name;
           • the filing date of his complaint;
           • the characterization of the court’s review of the case; and
           • the quotation of the federal court’s dismissal order.

       Appellants’ Br. pp. 33, 35. Moreover, Holland cites to federal statutes and

       contends that the Lake County Defendants’ notice of removal to federal court

       was invalid. He further claims that his due process rights were violated because

       the trial court refused to immediately order a change of venue and repeatedly

       ruled in favor of the Lake County Defendants.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 7 of 17
[12]   Yet again, the errors Holland alleges are either baseless declarations of no

       consequence or are incoherent assertions for which he provides no cogent

       argument and/or no supporting authority. We are unable and unwilling to

       address these arguments. See Lasater, 809 N.E.2d 380; see also Shepherd, 819

       N.E.2d 457.


[13]   A final claim raised by Holland in his Issue #2 is that the trial court’s dismissal

       was without prior warning, without notice, without a hearing, and without an

       opportunity to present evidence.


[14]   Trial Rule 12(B) provides that a motion to dismiss for failure to state a claim

       shall be treated as a motion for summary judgment and disposed of as provided

       in Trial Rule 56 when matters outside the pleading are presented to and not

       excluded by the court. Where a trial court treats a motion to dismiss as one for

       summary judgment, the court must give the parties reasonable opportunity to

       present Trial Rule 56 materials. See Ind. Trial Rule 12(B); Lanni v. Nat’l

       Collegiate Athletic Ass’n, 989 N.E.2d 791 (Ind. Ct. App. 2013). A trial court’s

       failure to give explicit notice of its intended conversion of a motion to dismiss

       to one for summary judgment is reversible error only if a reasonable

       opportunity to respond is not afforded a party and the party is thereby

       prejudiced. Azhar v. Town of Fishers, 744 N.E.2d 947 (Ind. Ct. App. 2001).


[15]   There are three considerations pertinent to a determination of whether a trial

       court’s failure to give express notice deprives the nonmovant of a reasonable

       opportunity to respond with Trial Rule 56 materials. First, we consider


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 8 of 17
       whether the movant’s reliance on evidence outside the pleadings should have

       been so readily apparent that there is no question that the conversion is

       mandated by Trial Rule 12(B). Id. Second, we consider whether there was

       ample time after the filing of the motion for the nonmovant to move to exclude

       the evidence relied upon by the movant in support of its motion or to submit

       Trial Rule 56 materials in response thereto. Id. And third, we consider whether

       the nonmovant presented “substantiated argument” setting forth the specific,

       controverted material factual issues he would have submitted to the trial court if

       he had been given the opportunity. Id.


[16]   No reversible error occurred here. First, the Lake County Defendants’ reliance

       on evidence outside the pleadings was unmistakable, as they included, among

       other things, Holland’s complaint from Cause 2:13-CV-179-TLS in federal

       court and the federal court’s dismissal order as exhibits to the memorandum

       they filed with their motion to dismiss. Second, Holland had ample time to

       move to exclude the evidence relied upon by the Lake County Defendants or to

       submit materials in response. Indeed, after the motion to dismiss was filed on

       January 29, 2018, Holland filed his objection to the motion with a motion to

       strike on February 22, as well as another response on April 9. There was then a

       lengthy period before the court dismissed the case on August 17. Lastly,

       Holland has failed to show what additional material he would have presented if

       he had been given explicit notice of the conversion of the motion.


[17]   Moreover, as previously acknowledged, Trial Rule 12(B) provides that a motion

       to dismiss converted to a motion for summary judgment is disposed of as

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 9 of 17
       provided in Trial Rule 56. Trial Rule 56 requires a court to hold a hearing only

       when a party makes a timely request. There is no indication that Holland

       requested a hearing. We find no error.


[18]   We turn now to Holland’s Issue #3, in which he maintains that his motion to

       set aside the court’s dismissal order pursuant to Trial Rule 60 required a

       hearing.


[19]   Before discussing whether a hearing was required, we must first address a

       related issue. Holland titled his motion “Motion to Set Aside the Order of

       8/17/18” and stated that the motion was “pursuant to Indiana Trial Rules [sic]

       60(B)(6) the judgment is void.” Appellees’ App. Vol. III, p. 75. A ruling on a

       Trial Rule 60(B)(6) motion requires no discretion on the part of the trial court

       because the judgment is either void or valid; thus, on appeal, our review is de

       novo. Koonce v. Finney, 68 N.E.3d 1086 (Ind. Ct. App. 2017), trans. denied. To

       prevail under Trial Rule 60(B)(6), the party must demonstrate the prior

       judgment is void. Id. “A judgment is void when the trial court lacked either

       personal or subject matter jurisdiction in the cause.” Gourley v. L.Y., 657 N.E.2d

       448, 449 (Ind. Ct. App. 1995), trans. denied. Neither circumstance has been

       shown here. While Holland claims error with the trial court’s dismissal of his

       complaint, the error alleged is not jurisdictional. The trial court’s order is not

       void, and Holland is not entitled to relief under Trial Rule 60(B)(6).


[20]   Nevertheless, we will review Holland’s motion. Although the motion is

       captioned as a motion to set aside the judgment under Trial Rule 60(B)(6), in


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 10 of 17
       substance it is a motion to correct error. In light of our preference for placing

       substance over form, we will consider Holland’s motion as a motion to correct

       error under Trial Rule 59. See Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub.

       Serv. Co., 804 N.E.2d 289 (Ind. Ct. App. 2004) (stating this Court has indicated

       its preference to place substance over form). To that end, we observe that a trial

       court is not required to hold an evidentiary hearing on a motion to correct error.

       In re Estate of Wheat, 858 N.E.2d 175 (Ind. Ct. App. 2006). Consequently, we

       find no error.


[21]   Issue #4 consists of several pages of rambling, incoherent claims. As best we

       can discern, Holland alleges error with the trial court’s grant of the Lake

       County Defendants’ protective order. The Lake County Defendants requested

       a protective order to stay discovery due to their pending motion to dismiss and

       given that Holland had requested them to produce voluminous documents

       requiring numerous hours to prepare. Holland filed an objection to the

       issuance of a protective order, but the trial court granted a protective order

       staying all discovery until the pending motion to dismiss was adjudicated.


[22]   Trial courts have broad discretion in making discovery rulings, and this Court

       will reverse such rulings only when there is an abuse of that discretion. Gonzalez

       v. Evans, 15 N.E.3d 628 (Ind. Ct. App. 2014), trans. denied. An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court. Id. A trial court’s

       discovery rulings are given a strong presumption of correctness because they are



       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 11 of 17
       usually fact-sensitive. Id. Holland makes no showing that the court abused its

       discretion by granting the protective order; accordingly, we find no error.


[23]   We turn now to the genuine issue in this appeal, which is whether the trial

       court erred by denying Holland’s motion to set aside the court’s order of

       dismissal. As we discussed, Holland’s motion is, in substance, a motion to

       correct error. Therefore, we will review the denial of the motion under the

       standard applicable to the denial of a motion to correct error. A trial court is

       vested with broad discretion to determine whether it will grant or deny a

       motion to correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992

       N.E.2d 810 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs

       only if the decision is clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable inferences therefrom. Id.

       Further, the trial court’s decision comes to us cloaked in a presumption of

       correctness, and we may neither reweigh the evidence nor judge the credibility

       of witnesses. Id.


[24]   In reviewing a motion to correct error, this Court also considers the standard of

       review for the underlying ruling. Id. We review de novo a trial court’s ruling

       on summary judgment. Morris v. Crain, 71 N.E.3d 871 (Ind. Ct. App. 2017).

       On appeal from a summary judgment, we apply the same standard of review as

       the trial court: summary judgment is appropriate only where the designated

       evidentiary matter shows there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. Young v. Hood’s

       Gardens, Inc., 24 N.E.3d 421 (Ind. 2015); see also Ind. Trial Rule 56(C). The trial

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 12 of 17
       court’s grant of summary judgment is clothed with a presumption of validity,

       and the party who lost in the trial court has the burden of demonstrating that

       the grant of summary judgment was erroneous. Auto-Owners Ins. Co. v. Benko,

       964 N.E.2d 886 (Ind. Ct. App. 2012), trans. denied. Further, an appellate court

       may affirm summary judgment on any theory or basis supported by the

       designated materials. Missler v. State Farm Ins. Co., 41 N.E.3d 297 (Ind. Ct.

       App. 2015).


[25]   In its order dismissing the lawsuit underlying this appeal, the trial court

       determined that the adjudication of Holland’s claims in Cause 2:13-CV-179-

       TLS in federal court is a bar to the present action pursuant to the doctrine of res

       judicata. The doctrine of res judicata serves to prevent repetitious litigation of

       disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043 (Ind.

       Ct. App. 2011), trans. denied. The doctrine has two components: claim

       preclusion and issue preclusion. Id. Claim preclusion applies when a final

       judgment on the merits has been rendered in an action, and it acts to bar a

       subsequent action on the same claim between the same parties. Evergreen

       Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337 (Ind. Ct. App.

       2013). More specifically, claim preclusion applies when the following four

       factors are satisfied: (1) the former judgment must have been rendered by a

       court of competent jurisdiction; (2) the former judgment must have been

       rendered on the merits; (3) the matter now in issue was, or could have been,

       determined in the prior action; and (4) the controversy adjudicated in the




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 13 of 17
       former action must have been between the parties to the present suit or their

       privies. Id.


[26]   As to the first two factors, there is no real dispute that the prior judgment was

       rendered by a court of competent jurisdiction on the merits. The United States

       District Court in the Northern District of Indiana issued the prior judgment,

       and “[o]ur courts have generally accepted the rule that we must give full faith

       and credit to proceedings in federal courts.” Higgason v. Stogsdill, 818 N.E.2d

       486, 491 (Ind. Ct. App. 2004), trans. denied. Additionally, although Holland

       alleges in his brief that the federal court proceeding was not decided on the

       merits, “‘[i]n Indiana, it is well settled that a dismissal with prejudice is a

       dismissal on the merits, and as such, it is conclusive of the rights of the parties

       and res judicata as to the questions that might have been litigated.’” Hart v.

       Webster, 894 N.E.2d 1032, 1037 (Ind. Ct. App. 2008) (quoting Mounts v.

       Evansville Redevelopment Comm’n, 831 N.E.2d 784, 791 (Ind. Ct. App. 2005),

       trans. denied).


[27]   The third element concerning the matter at issue is also satisfied. The trial

       court stated in its dismissal order that Holland’s complaint in the present case

       “is virtually the same” as the amended complaint he filed in federal court in

       Cause No. 2:13-CV-179-TLS, Appealed Order, p. 10, and our review of the

       record in this case confirms this finding. As for the final requirement that all

       involved be parties or privies, all the defendants in this case were also

       defendants in the federal lawsuit with the exception of the Lake County

       Sheriff’s Department, Sheriff Deputy Corporal Evon Foster, and Sheriff Deputy

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 14 of 17
       John Doe. Therefore, claim preclusion bars Holland’s suit against all of the

       Lake County Defendants except the Lake County Sheriff’s Department, Sheriff

       Deputy Corporal Evon Foster, and Sheriff Deputy John Doe.


[28]   With regard to the Lake County Sheriff’s Department, Sheriff Deputy Corporal

       Evon Foster, and Sheriff Deputy John Doe, the trial court found several

       grounds upon which to base its dismissal, but we need address only one.


[29]   The trial court determined that Holland had not complied with the notice

       requirements of the Indiana Tort Claim Act (ITCA). The ITCA governs civil

       lawsuits against governmental entities and their employees. Ind. Code §§ 34-

       13-3-1 (1998), -3 (2013). “Governmental entity” for purposes of the ITCA

       means a political subdivision of the state, and a county is a political subdivision.

       Ind. Code §§ 34-6-2-49(a) (2013), -110(1) (2007). The ITCA provides that a

       claim against a political subdivision is barred unless notice is filed with the

       governing body of the political subdivision and the Indiana political subdivision

       risk management commission within 180 days after a loss occurs. Ind. Code §

       34-13-3-8 (1998). Where a plaintiff elects to sue a governmental employee in

       his or her individual capacity, notice under Indiana Code section 34-13-3-8 is

       required only if the act or omission causing the alleged loss is within the scope

       of the defendant’s employment. Chang v. Purdue Univ., 985 N.E.2d 35 (Ind. Ct.

       App. 2013), trans. denied. The ITCA provides substantial immunity for conduct

       within the scope of a public employee’s employment to ensure that public

       employees can exercise the independent judgment necessary to carry out their

       duties without threats of harassment or litigation over decisions made within

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 15 of 17
       the scope of their employment. Id. Compliance with the ITCA is a question of

       law for the court to decide. Id.


[30]   In his complaint, Holland asserts actions by the Lake County Sheriff’s

       Department, Sheriff Deputy Corporal Evon Foster, and Sheriff Deputy John

       Doe that were squarely within the context of the defendants’ roles as a sheriff’s

       department and as deputies. Accordingly, notice under Section 34-13-3-8 was

       required. See Chang, 985 N.E.2d at 51.


[31]   Holland has made no showing that he filed a tort claim notice. In his brief to

       this Court, his argument on this issue consists of one sentence: “There was no

       violation of the Indiana Tort Claims Act (ITCA), the tort claim notice was

       provided and/or no notice is required.” Appellants’ Br. p. 35. Likewise, in his

       motion to set aside, Holland merely cited to an ITCA provision but included no

       cogent argument or any statement relating the provision to his claims. See

       Appellees’ App. Vol. III, p. 79. Consequently, Holland has failed to fulfill his

       burden of demonstrating that the trial court’s grant of summary judgment on

       this issue was in error.


[32]   Finally, Holland’s Issue #5, as well as a separate motion filed in this appeal,

       address his request for fees pursuant to Appellate Rule 66(E). Incredibly, he

       “asks this Court to order Defendants to pay [him] attorney fees in causing and

       contesting this appeal.” Appellants’ Br. p. 45. His motion requests attorney

       fees and, in addition to Rule 66(E), cites to several federal and state statutes,

       including the Indiana crime victim’s statute. The motion contains rambling


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 16 of 17
       statements concerning issues addressed in his brief, as well as additional

       unintelligible arguments. Among other things, he alleges that he is a “private

       attorney general” bringing his lawsuit because it is in the interest of and benefits

       the general public, and he requests $89,601 in fees.


[33]   Appellate Rule 66(E) provides: “The Court may assess damages if an appeal,

       petition, or motion, or response, is frivolous or in bad faith. Damages shall be

       in the Court’s discretion and may include attorneys’ fees.” There is absolutely

       no evidence of bad faith on the part of the Lake County Defendants that would

       support an award of fees to Holland pursuant to Rule 66(E), and Holland points

       to none. In fact, in an order issued the same day as its motion denying

       Holland’s motion to set aside, the trial court found that Holland’s “filings have

       been frivolous, without merit and have been abusive.” Appealed Order, p. 21.

       Moreover, Indiana does not recognize the “private attorney general” exception

       to the American Rule regarding attorney fees. State Bd. of Tax Comm’rs v. Town

       of St. John, 751 N.E.2d 657 (Ind. 2001). Therefore, we deny, here and by

       separate order, Holland’s request for fees.


[34]   For the reasons stated, we conclude that Holland has failed to show that the

       trial court abused its discretion by denying his motion to set aside.


[35]   Judgment affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-117 | November 25, 2019   Page 17 of 17
