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                   Dec 30 2014, 8:48 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT, PRO SE:                             ATTORNEYS FOR APPELLEE:

SONIA LONG                                     GREGORY F. ZOELLER
Elkhart, Indiana                               Attorney General of Indiana

                                               FRANCES BARROW
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                               R.C. RICHMOND, III
                                               Taft Stettinius & Hollister LLP
                                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SONIA LONG, et al.                             )
                                               )
       Appellants-Plaintiffs,                  )
                                               )
               vs.                             )      No. 09A05-1308-CT-434
                                               )
HEARTLAND RESIDENTIAL SERVICES,                )
INC., et al.                                   )
                                               )
       Appellees-Defendants.                   )


                       APPEAL FROM THE CASS SUPERIOR COURT
                         The Honorable Lynn Murray, Special Judge
                              Cause No. 09D01-1204-CT-15
                                    December 30, 2014


       MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge


                              STATEMENT OF THE CASE

       Sonia Long (“Long”), pro se, on behalf of herself and her ward, Timothy Urmston

(“Urmston”) filed an amended complaint against Heartland Residential Services, Inc.

(“Heartland”) and various agencies of the State of Indiana (collectively, “the State”) to

challenge the amount of funding the State provided under its Medicaid waiver program.

After Long requested the trial court to dismiss her amended complaint without prejudice,

the trial court dismissed her complaint with prejudice under Indiana Trial Rule 41(A)(2).

Because, on appeal, Long makes no cogent argument showing that the trial court’s order

was erroneous, we affirm the trial court’s judgment. Additionally, we deny Heartland’s

and the State’s request for appellate attorney fees.

       We affirm.

                                          ISSUES

       1. Whether the trial court erred by dismissing Long and Urmston’s
          amended complaint with prejudice.

       2. Whether Heartland and the State are entitled to appellate attorney fees.




                                              2
                                             FACTS

        In April 2000, the Cass Superior Court appointed Long and her husband1 as co-

guardians of Urmston, who was born in 1944 and is not related to Long. Long lives in St.

Joseph County, while Urmstrom lives in Cass County. Urmstrom lives in a house owned

by Long and pays rent to Long. Urmstrom has developmental disabilities and receives

support services under the Medicaid waiver program that is administered by the State.

       In February 2011, Long met with Heartland about providing support services for

Urmston.     Heartland then contracted with the State to provide in-home supportive

services to Urmston through the Medicaid waiver program. The State determined how

many hours of service that Heartland could provide to Urmston and set out that amount in

a Notice of Action (“NOA”). The State authorized funding to Heartland to provide

services to Urmston for sixteen hours per day for five days per week. However, for

multiple months in 2011, Heartland was able to provide 24/7 service to Urmston when he

was at home because Heartland was able to get a budget modification request (“BMR”)

approved by the State. At some point, the State no longer approved the BMR for

Urmston, leaving him with the original service authorization set out in his NOA. Long

provided care to Urmston for the hours not funded by the program.

       On March 5, 2012, Heartland sent Long a letter (“60-day Notice Letter”),2

notifying her that it would no longer provide Medicaid services to Urmston on May 7,

2012. Specifically, the letter from Heartland’s vice president provided:


1
 Long’s husband was not included on any of the pleadings below and is not a party on appeal.
2
  Such a notice letter was required by the Medicaid waiver program so that a client had time to find
another service provider.
                                                 3
I am writing to inform you that Heartland . . . will no longer be able to
provide services to . . . Tim as of May 7, 2012, midnight. Additionally,
please be informed that Heartland will not be providing any hours of
services other than those that are authorized under Tim’s NOA beginning
March 12, 2012 at midnight.

Because you have stated that you have no intention of providing any care
for Tim during the time when Heartland staff is not present, and further,
because you have deliberately refused additional services that Tim needs
and is entitled to under a Medicaid PA, this Notice is being provided to
Adult Protective Services and various other government authorities so that
emergency actions may be taken to keep Tim safe when Heartland is not in
the home.

This was not an easy decision for Heartland to make, as our staff has come
to truly enjoy Tim’s company and takes great pride in providing him with
the services he deserves. Unfortunately, your behavior has made it
impossible for Heartland to continue services. Specifically:

      1. You have consistently and intentionally interfered with
         Heartland’s staff and their duties, including requiring each staff
         member to give you a special “report” at 10:00 p.m. each night,
         which includes what he ate and various other non-essential
         details. If you do not receive this report you call the police to the
         home;

      2. You require staff members to “watch” the garage so that no one
         will break in;

      3. You have refused to allow additional medically-based services
         for Tim under an approved PA; and,

      4. You have behaved in an entirely inappropriate manner toward
         Heartland management, raising your voice at them, hanging up
         on them and threatening to sue them.

Simply put, you have created an overall atmosphere in which our staff can
not function optimally and is harmful to Tim. You are also regularly
abusing the 911 system, which is entirely and wholly unacceptable.




                                     4
        Heartland will do everything in its power to ensure a smooth transition for
        Tim to his new provider, and will work hard to make certain that he
        continues to receive the very best services we can provide until that time.

        Should you have any questions about this matter, please contact me
        directly. You should be aware that I have instructed staff members not to
        discuss this particular matter with you. Instead their focus will be on care
        for Tim, and I encourage you to do the same.

(Appellee’s App. 39-40) (emphasis in original).

        On April 23, 2012, Long filed, pro se, the following pleadings with the trial court:

(1) a complaint against Heartland on her behalf; (2) a complaint against Heartland on

Urmston’s behalf as his guardian; and (3) a motion for a temporary restraining order.

Although she did not name them as parties, Long served copies of these pleadings to the

Attorney General and the Cass County Prosecutor.3

        In Long’s complaint, she alleged the following claims against Heartland: Count I,

breach of an oral contract; Count II, “intentional misrepresentation[;]” Count III, breach

of duty, malicious conduct, and bad faith; Count IV, attempted malicious prosecution,

harassment, libel, slander, and defamation of character; Count V, assault; Count VI,

denial of her civil rights and violation of the Thirteenth Amendment to the United States

Constitution.4 (Appellee’s App. 10) (upper case lettering altered to lower case). Under

each count, Long sought damages from Heartland and the State (including BDDS and


3
  Additionally, Long sent a notice of tort claim and a summons to the Attorney General’s Office. In her
tort claim notice, Long alleged claims of “[h]arassment, discrimination, malicious conduct, [b]ad [f]aith,
negligence[,] [b]reach of HIPPA, and other issues” against the Bureau of Developmental Disability
Services (“BDDS”) and Adult Protective Services (“APS”) and asserted that the date of loss for the claim
was “ongoing loss since 10-2008[.]” (Appellee’s App. 196).
4
  Long argued that Heartland forced her to care for Urmston during the hours that were not covered by
funding from the State and that such actions “constituted the action of slavery by Heartland.” (Appellee’s
App. 18).
                                                    5
APS) “(if/when, these entities are added to this Complaint).” (Appellee’s App. 7, 11, 13,

15, 16, 18-19).

          In the complaint on behalf of Urmston, Long alleged the following claims: Count

I, “breach of duty to a vulnerable individual[;]” Count II, “bad faith in the services

provided[;]” Count III, “intentional neglect and abuse of a vulnerable individual[;]” and

Count IV, denial of Urmston’s civil rights.5 (Appellee’s App. 22, 26, 28) (upper case

lettering altered to lower case).

          In Long’s motion for a temporary restraining order, she sought three things: (1) to

“no longer be forced to care for her ward, Mr. Timothy Urmston[;]” (2) to have Heartland

pay her “at the Indiana State rate of $19.52 per hour for her care-giving services[;]” and

(3) to prohibit Heartland from discontinuing services for Urmston on May 7, 2012 or to

have the State provide funding for twenty-four hour a day services with a different

provider. (Appellee’s App. 57-58).

          On May 1, 2012, the trial court held a hearing on Long’s motion for a temporary

restraining order. During this hearing, the parties discussed that the State should be

involved in this case because Long was making claims that could more appropriately be

addressed by the State. After witnesses from Heartland6 testified that it would not and

could not stop providing services to Urmston until another service provider was found,

the trial court denied Long’s motion.


5
  Long alleged that the State had violated Urmston’s civil rights “by not providing sufficient funding” and
that Heartland violated his rights when it sent Long the 60-day Notice Letter to notify her that it would no
longer be Urmston’s Medicaid waiver service provider. (Appellee’s App. 30).
6
    The trial court heard testimony from the executive director and the owner/president of Heartland.
                                                      6
      On May 22, 2012, the Attorney General’s Office, on behalf of the Attorney

General and the Cass County Prosecutor, filed a Notice of Non-Involvement, indicating

that they were not parties and would not be filing any responsive pleadings.

      On June 15, 2012, Heartland filed a motion to dismiss. Specifically, Heartland

sought to dismiss the action under Indiana Trial Rule 12(B)(7) for failure to join parties

needed for just adjudication under Trial Rule 19, and it sought to dismiss counts II

through VI of Long’s complaint and counts I and IV of Urmston’s complaint pursuant to

Trial Rule 12(B)(6).

      On July 25, 2012, Long sent a letter to the trial judge and filed separate motions

requesting to add the Cass County Chief Deputy Prosecutor (“Deputy Prosecutor”), two

employees from BDDS, and one employee of APS as defendants in the case (collectively,

“the State employees”).

      On August 10, 2012, the Attorney General’s Office filed, on behalf of the Deputy

Prosecutor and the State employees, a response in opposition to Long’s request to add

them as defendants. The State asserted that joinder of these parties would be futile

because Long had failed to state a claim against them, she had failed to comply with the

Indiana Tort Claims Act, and because the State employees had immunity.

      In late August 2012, the trial judge recused from the case, and a special judge was

selected in late September 2012. Later, on November 26, 2012, Long filed a second

motion for a temporary restraining order, seeking to “protect the health and safety of Mr.

Urmston and to stop the physical and financial drain which has occurred for the Long

family due to the requirement that Sonia Long care for Mr. Urmston a minimum of thirty-

                                            7
six (36) hours per week.” (Appellee’s App. 127). Thereafter, Heartland filed a response

in opposition to Long’s motion and requested attorney fees, pursuant to INDIANA CODE §

34-52-1-1(b), for the costs incurred in responding to the motion.

          On December 14, 2012, the trial court held a hearing on Heartland’s motion to

dismiss and on Long’s second motion for a temporary restraining order. Subsequently,

the trial court determined that BDDS and APS were “necessary parties” and ordered

Long to join these parties as defendants within thirty days. When ruling on Heartland’s

motion to dismiss, the trial court ordered that Counts II, III, and IV (to the extent that

they purported to assert claims for malicious prosecution, slander, and harassment) as

well as Counts V and VI of Long’s complaint were dismissed and that Counts I and IV of

Urmston’s complaint were dismissed. (App. 10; Appellee’s App, 144). The trial court

also denied Long’s second request for a temporary restraining order and reserved its

ruling on Heartland’s request for attorney fees.

          On January 7, 2013, Long sent the trial court a letter requesting a consultation, and

the trial court denied her request. Then, on January 10, 2013, Long filed an amended

complaint on behalf of herself and Urmston, and she added BDDS and APS as

defendants.7 In her amended complaint, she alleged, among other things, that Heartland

breached its oral contract with her and its contractual agreement with the State and that

Heartland had breached its duty to Long and Urmston and acted with bad faith and

malicious conduct.         Long also alleged that specific employees of the various State

agencies had breached their duty to her and to Urmston. Long sought compensatory

7
    Long also added Liberty of Indiana and Indiana Professional Management Group as defendants.
                                                    8
damages, punitive damages, “Hedonic” damages, loss of consortium damages, and costs.

(Appellee’s App. 164).

       In January 2013, Long sent the Attorney General several tort claims notices on

behalf of herself and Urmston.       These notices contained various dates of loss and

contained various complaints against State agency employees, including complaints of

breach of duty, improper supervision, failure to file for a new BMR, and failure to follow

agency rules.

       On March 1, 2013, the State filed a motion for summary judgment and argued,

among other things, that it was entitled to summary judgment because Long had failed to

properly or timely file a tort claim notice and because she had never served the Attorney

General with a summons or copies of the amended complaint. Additionally, the State

argued that Long’s claims were barred by the Indiana Tort Claims Act and the statute of

limitations and that she had failed to exhaust administrative remedies.

       Approximately two weeks later, on March 19, 2013, Long filed a motion to

dismiss her complaints without prejudice. Thereafter, Heartland filed an objection to a

dismissal without prejudice and requested a hearing on Long’s motion. It also argued

that the trial court should dismiss Long’s case with prejudice, and it moved for attorney

fees in the event that the trial court dismissed the case without prejudice.

       On May 16, 2013, the trial court held a hearing on Long’s motion to dismiss and

on Heartland’s motion for attorney fees. At the beginning of the hearing, Long told the

trial court that she wanted to withdraw her motion to dismiss and that she was prepared to

argue against the State’s summary judgment motion. The attorneys for Heartland and the

                                              9
State then voiced their concern that Long could have given prior notification that she

wanted to withdraw her motion. They also expressed the inconvenience of preparing for

Long’s motion and traveling the distance to the trial court when that could have been

avoided by her providing notification.       Heartland then stated that it would request

attorney fees for the cost of preparation for and travel to the hearing if the trial court

granted Long’s motion to withdraw her motion to dismiss. After the trial court discussed

“common courtesy” and acknowledged that Heartland’s request for attorney fees was

“well taken[,]” Long stated that she did not want to withdraw her motion and confirmed

that she wanted to proceed with the hearing on her motion to dismiss. (Tr. 70)

       In regard to her motion to dismiss, Long told the trial court that she had “requested

the Federal Government to do an investigation to Medicaid issues in the State of Indiana”

and stated that she should be able to dismiss her complaints without prejudice and later

refile after she “g[o]t all the information that [she] need[ed]” and after she was able to get

an attorney. (Tr. 72).

       On May 20, 2013, the trial court, issued an order in which it dismissed Long’s

complaint with prejudice. The trial court’s order provides, in relevant part:

       3.    . . . For the most part the plaintiffs’ claims are unintelligible and
       appear to ask the court to determine the amount and nature of services to be
       provided by the State agencies or Heartland to Urmston.

                                          *****
       6.     Indiana Trial Rule 41(A) provides than an action shall not be
       dismissed at the plaintiff’s instance save upon order of the court and upon
       such terms and conditions as the court deems proper. This rule conveys
       upon the trial judge authority to exercise his or her discretion and impose
       conditions on a dismissal. Highland Realty, Inc. v. Indianapolis Airport
       Authority, 563 N.E.2d 1271 (Ind. 1990). This discretion may be exercised

                                             10
       to assure that a dismissal does not prejudice or unfairly inconvenience the
       defendants. Id.

       7.     The plaintiffs’ claims are largely undecipherable. Most of plaintiffs’
       claims against Heartland were dismissed for failure to state a claim upon
       which this court could grant relief. As correctly stated in the State’s
       memorandum in support of its motion for summary judgment, plaintiffs’
       claims against the State defendants are not cognizable.

       8.     Although plaintiff Long is representing herself in this action, and
       purports to also be representing her ward Urmston, in doing so she must be
       held to the same standard as trained legal counsel. Receveur v. Buss, 919
       N.E.2d 1235, 1238 n.4 (Ind. Ct. App. 2000). Pro se litigants are held to the
       same standards as trained counsel and are required to follow procedural
       rules. Ballaban v. Bloomington Jewish Cmty, Inc., 982 N.E.2d 329 (Ind.
       Ct. App. 2013).

       9.     In defending plaintiffs’ claims in this action, Heartland has incurred
       legal fees of more than $18,000.00, and the State Attorney General’s office
       has incurred substantial time and effort to-date. Said defendants would be
       prejudiced and unfairly inconvenienced if the plaintiffs were allowed to
       walk away and wait for a better day to refile their suit.

       10.    Based upon the foregoing, the court finds and orders that as a proper
       term and condition of granting the plaintiffs’ motion to dismiss this action,
       said dismissal should be with prejudice against the refiling thereof. As
       such, the defendant Heartland’s motion for an award of attorney fees as
       well as the State’s motion for summary judgment are deemed moot.

(App. 19-20).

       On June 18, 2013, Long filed a “Motion for Corrections to Court for Change from

Order of Dismissal with Prejudice to Order of Dismissal without Prejudice[,]” which the

trial court treated as a motion to correct error and set for a hearing. (App. 24) (upper case

lettering altered to lower case). Thereafter, Heartland and the State both filed a response

in opposition to Long’s motion, and Heartland requested attorney fees for its costs

incurred in responding to Long’s motion to correct error.


                                             11
       On July 15, 2013, the trial court held a hearing on Long’s motion and Heartland’s

attorney fee request. Thereafter, the trial court issued an order denying Long’s motion to

correct error, which provided, in relevant part:

       3.     Long’s motion to correct [error] is a lengthy recitation of claims
       asserted in her original complaint and of new claims against the defendants
       based upon events that occurred after the hearing in May 2013.

       4.     Neither Long’s motion nor her responses to the defendants’
       statement in opposition . . . address the pertinent issue as to whether the
       court erred by dismissing her claims with prejudice.

       5.      Long’s motion to correct error should be denied, for the reasons
       cited in its order of May 20, 2013 and the statements in opposition filed by
       the defendants on July 15, 2013. It was within the proper discretion of this
       court to find and order that the plaintiffs’ claims be dismissed with
       prejudice so that the defendants were not prejudiced or unfairly
       inconvenienced.

(App. 100). Additionally, after determining that Long’s motion to correct error was

“frivolous, unreasonable, and/or groundless[,]” the trial court awarded attorney fees of

$750.00 to Heartland pursuant to INDIANA CODE § 34-52-1-1 for Heartland’s fees in

responding to Long’s motion.

                                        DECISION

       Long appeals the trial court’s order dismissing her case with prejudice, and

Heartland and the State request that we grant them appellate attorney fees. We will

address each argument in turn.

1.     Dismissal with Prejudice

       Initially, we note that Long appeals pro se. As our Indiana Supreme Court has

explained, a litigant “has every right to represent himself in legal proceedings, but a pro


                                             12
se litigant is held to the same standards as a trained attorney and is afforded no inherent

leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d

259, 266 (Ind. 2014).

        Here, Long appeals from the trial court’s order dismissing her case with prejudice

under Indiana Trial Rule 41(A)(2) and the subsequent denial of her motion to correct

error. Although Long’s appeal stems from the order dismissing her case with prejudice,

she makes no argument—let alone any cogent argument—explaining how or why the

trial court’s order dismissing her claims with prejudice was erroneous. Instead, she

appears to rehash claims raised in her amended complaint, and she asserts various

challenges to procedural events that occurred during this underlying case, such as

whether trial court staff erred with regard to how and where to file her complaint. We,

however, are a Court of intermediate review, and we cannot review any newly raised

claims. Because Long presents no cogent argument nor any citation to authority to show

that the trial court’s order was erroneous, she has waived review of this order on appeal.

See, e.g., Zavodnik, 17 N.E.3d at 264 (holding that the pro se appellant’s claim was

waived because he failed to support it with cogent argument or citation to relevant

authority). See also Ind. Appellate Rule 46(A)(8)(a).8

2.      Appellate Attorney Fees


8
  In her Reply Brief, Long generally asserts that “the trial court was incorrect in its dismissal of Long’s
amended complaint with prejudice.” (Long’s Reply Br. 3). To the extent that she provides an argument
to support this general assertion, it is waived because she raises it for the first time in her reply brief. See
Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (“The law is well settled that
grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
the reply brief, they are waived.”).

                                                      13
       Heartland and the State (“the Appellees”) ask this Court to grant them appellate

attorney fees under Appellate Rule 66(E).

       Under Appellate Rule 66(E), we are authorized to “assess damages [including

attorney fees] if an appeal, petition, or motion, or response, is frivolous or in bad faith.”

A decision to assess any appellate damages or attorney fees is “in [our] Court’s

discretion.” App. R. 66(E). While Appellate Rule 66(E) allows us to award damages on

appeal, “[w]e must use extreme restraint when exercising this power because of the

potential chilling effect upon the exercise of the right to appeal.” Kroger Co. v. WC

Associates, LLC, 967 N.E.2d 29, 40 (Ind. Ct. App. 2012), trans. denied. “A strong

showing is required to justify an award of appellate damages, and the sanction is not

imposed to punish mere lack of merit, but something more egregious.” Id.

       While we agree with Appellees that Long’s appellate brief was not the model of

clarity and did not completely adhere to the Appellate Rules, the Appellees have not

shown that this appeal is “something more egregious” that requires the imposition of

appellate attorney fees. Thus, we decline the Appellees’ request to award appellate

attorney fees under Appellate Rule 66(E).9

       Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




9
  We also disagree with the Appellees’ assertion that they should receive appellate attorney fees under
Indiana Code § 34-52-1-1.
                                                  14
