      MEMORANDUM DECISION
      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 establishing the defense of res judicata,
                                                                        Feb 26 2015, 9:06 am
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE
      Tonya Windell
      Corydon, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tonya Windell,                                           February 26, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               31A04-1409-CC-429
              v.                                               Appeal from the Harrison Circuit
                                                               Court

      Portfolio Recovery Associates,                           The Honorable John T. Evans,
                                                               Judge
      LLC,
                                                               Case Number 31C01-1211-CC-460
      Appellee-Plaintiff.




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Tonya Windell appeals the trial court’s grant of summary judgment in favor of

      Portfolio Recovery Associates, LLC on its complaint for collection of credit-

      card debt. Tonya, pro se, contends that the trial court erred in granting


      Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 1 of 7
      summary judgment in favor of Portfolio because some of the designated

      evidence is inadmissible hearsay. We cannot address this issue, however,

      because Tonya did not include in her appendix all documents relating to the

      disposition of the motion for summary judgment. That is, she did not include

      all of the documents that Portfolio designated and filed with the trial court. We

      therefore affirm the trial court’s grant of summary judgment in favor of

      Portfolio.



                            Facts and Procedural History
[2]   In November 2012 Portfolio filed a complaint against Tonya for collection of

      credit-card debt that she had acquired with Chase Bank and Chase sold to

      Portfolio. Portfolio later filed a motion for summary judgment and designation

      of evidence. Appellant’s App. p. 7-13. Portfolio designated the following

      evidence in support of its motion:

              (1) Plaintiff’s Complaint and all exhibits attached thereto.
              (2) The attached Memorandum.
              (3) The affidavit of [P]laintiff’s designated representative, attached
              hereto, with any exhibits attached thereto.
              (4) Plaintiff’s requests for Admissions and Interrogatories.
      Id. at 7. Tonya, however, does not include Portfolio’s designated evidence in

      her Appellant’s Appendix.


[3]   Tonya timely filed her response in opposition to summary judgment and her

      own designation of evidence that designated the following:


      Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 2 of 7
               1. Affidavit of David L. Knickerbocker submitted by Plaintiff – Exhibit
               A1
               2. Bill of Sale submitted by Plaintiff – Exhibit B
               3. Affidavit by Martin Lavergne – Exhibit C
               4. [Chase c]redit card statement dated 7/7/10 to 8/6/10 – Exhibit D
               5. [Chase c]redit card statement dated 6/7/09 to 7/6/09 – Exhibit E
      Id. at 14. Notably, Tonya includes this evidence in her Appellant’s Appendix.

      See id. at 23-29. Finding “no issue as to any material fact,” the trial court found

      that Portfolio was entitled to judgment as a matter of law. 2 Id. at 6. The court

      therefore entered summary judgment in favor of Portfolio in the amount of

      $8631.77 plus interest. Tonya filed a motion to correct error, which was

      deemed denied.


[4]   Tonya now appeals.



                                   Discussion and Decision
[5]   Tonya contends that the trial court erred in entering summary judgment in

      favor of Portfolio because some of the designated evidence used as support is

      inadmissible hearsay. Portfolio has not filed an appellee’s brief in response. See

      Branham v. Varble, 952 N.E.2d 744, 746 (Ind. 2011) (noting that in this



      1
       This is presumably the same document as Portfolio’s designated item No. 3 (“The affidavit of [P]laintiff’s
      designated representative”); however, Portfolio’s designation also says “with any exhibits attached thereto.”
      Tonya’s Exhibit A includes the affidavit but no attached exhibits. Therefore, we do not know what, if any,
      exhibits were attached to Portfolio’s designated item No. 3.
      2
       The trial court also found that Tonya had failed to timely file a response or designate any matters for the
      court to consider. Appellant’s App. p. 6. To the contrary, Tonya timely filed her response and properly
      designated materials pursuant to Trial Rule 56(C).

      Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015             Page 3 of 7
      circumstance, we will not develop the appellee’s arguments and will reverse

      upon an appellant’s prima facie showing of reversible error).


[6]   When reviewing a grant of summary judgment on appeal, our standard of

      review is the same as that of the trial court. Seth v. Midland Funding, LLC, 997

      N.E.2d 1139, 1140 (Ind. Ct. App. 2013). Considering only those facts that the

      parties designated to the trial court, we must determine whether there is a

      “genuine issue as to any material fact” and whether “the moving party is

      entitled to a judgment as a matter of law.” Id.


[7]   Indiana Trial Rule 56(C) provides:

              At the time of filing the motion or response, a party shall designate to
              the court all parts of pleadings, depositions, answers to interrogatories,
              admissions, matters of judicial notice, and any other matters on which
              it relies for purposes of the motion. A party opposing the motion shall
              also designate to the court each material issue of fact which that party
              asserts precludes entry of summary judgment and the evidence
              relevant thereto.
      When reviewing the grant of a motion for summary judgment, we may consider

      only those portions of the pleadings, depositions, and any other matter

      specifically designated to the trial court for purposes of the motion for summary

      judgment. Yoquelet v. Marshall Cnty., 811 N.E.2d 826, 828 (Ind. Ct. App. 2004).

      Moreover, Indiana Appellate Rule 49(A), which governs the filing of

      appendices, provides:

              The appellant shall file its Appendix with its appellant’s brief. The
              appellee shall file its Appendix, if any, with its appellee’s brief. Any
              party may file a supplemental Appendix without leave of court until
              the final reply brief is filed.

      Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 4 of 7
      The purpose of the appendix in civil appeals is to provide us “with copies of

      only those parts of the record on appeal that are necessary for the Court to

      decide the issues presented.” Ind. Appellate Rule 50(A)(1). “The appellant’s

      appendix shall contain . . . copies of the following documents . . . (f) pleadings

      and other documents from the Clerk’s Record in chronological order that are

      necessary for resolution of the issues raised on appeal.” App. R. 50(A)(2).


[8]   This rule means that “when appealing the grant or denial of a motion for

      summary judgment, it is not sufficient for the appellant to include in the

      appendix only those documents designated by it to the trial court.” Kelly v.

      Levandoski, 825 N.E.2d 850, 856 (Ind. Ct. App. 2005) (quotation omitted), trans.

      denied. Rather, the appellant should include in the appellant’s appendix all

      documents relating to the disposition of the motion for summary judgment,

      including any documents that the appellee designated and filed with the trial

      court. Id.; Thomas v. N. Cent. Roofing, 795 N.E.2d 1068, 1070 n.1 (Ind. Ct. App.

      2003); see also Yoquelet, 811 N.E.2d at 830 (“Without the designated evidence,

      which the trial court relied upon in drafting its summary judgment order, we

      cannot review the trial court’s decision to grant Marshall County’s motion for

      summary judgment. As a consequence, Employees have failed to prove that

      the trial court erred, and the presumption of the validity of the summary

      judgment remains.”); Hughes v. King, 808 N.E.2d 146, 148 (Ind. Ct. App. 2004)

      (“Where, as here, a party appeals the trial court’s entry of summary judgment,

      we can only conduct a de novo review if the parties have provided us with a

      complete copy of the evidence designated to the trial court. Because Hughes
      Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 5 of 7
       has failed to comply with that requirement, we have no basis upon which to

       review the substantive issue he has raised on the merits. We therefore dismiss

       this appeal.” (footnoted omitted)). This is the case even though Indiana

       Appellate Rule 49(B) provides that any party’s failure to include any item in an

       appendix “shall not waive any issue or argument.” See Yoquelet, 811 N.E.2d at

       829-30.


[9]    Here, Tonya did not include Portfolio’s designation of evidence in her

       Appellant’s Appendix. To the extent Tonya might argue that this was

       Portfolio’s responsibility, she is wrong. See Kelly, 825 N.E.2d at 856 (“Kelly

       claims he was obliged to include only his documents because Levandoski was

       required to file an appellee’s appendix that included his designated evidence.

       Kelly is wrong.”). While there may be some crossover between Tonya’s and

       Portfolio’s designations of evidence, it is clear that Tonya did not include the

       following evidence from Portfolio’s designation in her Appellant’s Appendix:

       Portfolio’s complaint and the exhibits attached thereto; Portfolio’s requests for

       Admissions and Interrogatories; and the exhibits, if any, attached to

       Knickerbocker’s affidavit. Without the designated evidence that the trial court

       relied upon in crafting its summary-judgment order, we cannot review the trial

       court’s decision to grant Portfolio’s motion for summary judgment. As a

       consequence, Tonya has failed to prove that the trial court erred. We therefore

       affirm the judgment of the trial court.


[10]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 6 of 7
Baker, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 31A04-1409-CC-429 | February 26, 2015   Page 7 of 7
