MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 12 2019, 9:18 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


PRO SE FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Debora Walton                                            Thomas R. Schultz
Westfield, Indiana                                       Jon L. Bucher
                                                         Schultz & Pogue, LLP
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Walton and Debora                                 September 12, 2019
Walton,                                                  Court of Appeals Case No.
Appellants-Plaintiffs,                                   19A-CT-35
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Patrick J. Dietrick,
Ryan Cangany,                                            Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         49D12-1707-CT-29646



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019               Page 1 of 9
                                              Case Summary
[1]   Ronald Walton and his sister Debora Walton (collectively “the Waltons”), filed

      a negligence action against Ryan Cangany for injuries stemming from an

      automobile accident. Cangany served Debora and Ronald separately with

      requests for admissions and received no response from either of them. He then

      sought and was granted summary judgment. The Waltons jointly appeal that

      ruling. We affirm.


                                  Facts and Procedural History
[2]   In July 2017, the Waltons filed a personal injury action against Cangany

      following a 2015 automobile accident at an Indianapolis intersection. They

      claimed that Cangany negligently operated his vehicle, causing Ronald to suffer

      physical injuries and incur medical expenses. In October 2017, they filed an

      amended complaint with jury demand. 1


[3]   On July 31, 2018, Cangany, by counsel, sent cover letters by regular and

      certified mail to Ronald and Debora at each of their listed addresses. Attached

      to each letter was a two-page document titled, “Defendant’s Request for

      Admissions and Alternative Interrogatory,” which includes the following:


              Defendant, Ryan Cangany, by counsel, submits the following
              Request for Admissions and Alternative Interrogatory, pursuant
              to Ind. Trial Rules 34 and 36, to be answered within thirty (30)



      1
        The Waltons have failed to include in their appendix a copy of the complaint or amended complaint with
      jury demand. Thus, the nature of Debora’s damages is unclear.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019               Page 2 of 9
              days after service hereof:

              REQUEST NO. 1: Ryan Cangany did not breach any duties
              owed to you with regard to operation of his vehicle on October
              28, 2015.

              ….

              REQUEST NO. 2: You suffered no damages as a result of the
              motor vehicle accident on October 28, 2015, involving Ryan
              Cangany and Ronald Walton.

              ….

              REQUEST NO. 3: Ryan Cangany was not negligent in the
              operation of his vehicle on October 28, 2015.

              ….

              REQUEST NO. 4: Ryan Cangany is not liable to
              Ronald[/Debora] Walton for any damages as a result of the
              motor vehicle accident on October 28, 2015.

              ….

              ALTERNATIVE INTERROGATORY: If you do not
              unequivocally admit or deny all of the above Request for
              Admissions, please state with specificity all facts upon which you
              rely for not admitting the above Request for Admissions.


      Appellants’ App. Vol. 2 at 28-29, 33-34.


[4]   Neither Ronald nor Debora submitted responses to his/her request for

      admissions. On October 15, 2018, Cangany filed a motion for summary

      judgment with designated materials, including the unanswered requests for

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019   Page 3 of 9
      admissions. He claimed that the information deemed admitted pursuant to

      Indiana Trial Rule 36 negated at least one element of negligence as a matter of

      law. The Waltons did not file a memorandum or designate any materials in

      opposition to summary judgment. The Chronological Case Summary shows

      that on November 2, 2018, Ronald filed a motion to strike Cangany’s motion

      for summary judgment. 2 Cangany filed a response to the motion to strike, and

      on December 4, 2018, the trial court conducted a hearing on both motions.

      That same day, the trial court issued an order denying Ronald’s motion to

      strike. Ronald filed a motion to reconsider, which the trial court also denied.

      The Waltons then filed a joint motion for leave to file a response to Cangany’s

      motion for summary judgment, which the trial court denied.


[5]   On December 14, 2018, the trial court issued an order granting summary

      judgment in favor of Cangany. The Waltons appeal that order. Additional

      facts will be provided as necessary.


                                        Discussion and Decision
[6]   The Waltons contend that the trial court erred in granting Cangany’s motion

      for summary judgment. As a preliminary matter, we note that the Waltons

      chose to proceed pro se both here and in the proceedings below. It is well

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




      2
        The trial court noted during the hearing on the motion to strike that although it was titled “Verified,” it was
      in fact unverified. The motion is not included in the appendix, and the basis for it is unknown.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019                     Page 4 of 9
      attorneys. Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct.

      App. 2013). 3


[7]   We review a court’s ruling on a summary judgment motion de novo, applying

      the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003

      (Ind. 2014). In conducting our review, we consider only those matters that

      were designated to the trial court during the summary judgment stage. Biedron

      v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans.

      denied (2019).


[8]   Summary judgment is appropriate if the designated evidence shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

      56(C). The moving party bears the onerous burden of affirmatively negating an

      opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, if “the moving party

      satisfies this burden through evidence designated to the trial court, the non-

      moving party may not rest on its pleadings, but must designate specific facts

      demonstrating the existence of a genuine issue for trial.” Biedron, 106 N.E.3d at




      3
        This includes litigants who prosecute their appeals pro se and therefore must comply with all the rules of
      appellate procedure. Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52, 61 (Ind. Ct. App.
      2002), trans. denied (2003). The Waltons have failed to comply with several rules of appellate procedure. For
      example, they have failed to include in their appendix copies of the complaint, amended complaint, motion
      to strike, and Cangany’s response to the motion to strike. They also have improperly included a reproduction
      of the transcript of the summary judgment hearing. See Ind. Appellate Rule 50(f) (because transcript is
      transmitted pursuant to Rule 12(B), parties should not reproduce any portion of transcript in the appendix).
      Moreover, their brief is deficient in many respects, and their arguments lack cogency. As the party with the
      burden of establishing error on appeal, they must develop reasoned arguments supporting their allegations
      and provide citations to pertinent authority. Ind. Appellate Rule 46(A)(8).

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019                 Page 5 of 9
       1089 (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App.

       2016), trans. denied).


[9]    In determining whether issues of material fact exist, we neither reweigh

       evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

       (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

       facts established by the designated evidence favoring the non-moving party.

       Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans.

       denied. “Any doubt as to any facts or inferences to be drawn therefrom must be

       resolved in favor of the non-moving party.” Buddy & Pals III, Inc. v. Falaschetti,

       118 N.E.3d 38, 41 (Ind. Ct. App. 2019) (quoting Goodwin v. Yeakle’s Sports Bar &

       Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)), trans. denied. The party that lost in

       the trial court bears the burden of persuading us that the trial court erred.

       Biedron, 106 N.E.3d at 1089. We may affirm a grant of summary judgment on

       any legal basis supported by the designated evidence. Harness v. Schmitt, 924

       N.E.2d 162, 165 (Ind. Ct. App. 2010).


[10]   The Waltons’ action against Cangany is grounded in negligence. To prevail on

       a negligence claim, the plaintiffs must demonstrate “(1) duty owed to plaintiff

       by defendant; (2) breach of duty by allowing conduct to fall below the

       applicable standard of care; and (3) compensable injury proximately caused by

       defendant’s breach of duty.” Buddy & Pals, 118 N.E.3d at 41 (quoting King v.

       Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019   Page 6 of 9
[11]   Here, Cangany served separate requests for admissions on Debora and Ronald

       pursuant to Indiana Trial Rule 36. Rule 36 allows a party to serve upon any

       other party a request for the admission of the truth of matters asserted by

       separately setting forth each matter for which an admission is requested.


               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.


       Id. “Any matter admitted under this rule is conclusively established unless the

       court on motion permits withdrawal or amendment of the admission.” Ind.

       Trial Rule 36(B).


[12]   The Waltons failed to respond at two critical junctures. They did not submit

       any answers or objections to Cangany’s requests for admissions. Nor did they

       request an enlargement of time within which to respond. The requests for

       admissions went to the heart of Cangany’s negligence claim, as each plaintiff

       was asked to admit or deny that “Cangany did not breach any duties owed” to

       him/her, that he/she “suffered no damages,” that “Cangany was not negligent

       in the operation of his vehicle,” and that “Cangany was not liable … for any

       damages” resulting from the accident. See Appellants’ App. Vol. 2 at 28-29,

       33-34 (Exhibits 1 and 2). When the Waltons failed to respond, Cangany filed a

       motion for summary judgment on the ground that the deemed admitted matters

       negated at least one of the elements of negligence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019   Page 7 of 9
[13]   The Waltons again failed to respond. They did not file a memorandum in

       opposition to summary judgment or designate any affidavits or other materials.

       Ronald did file a motion to strike Cangany’s motion for summary judgment,

       but the court found it to be unverified and denied it during the December 4,

       2018, summary judgment hearing. At the hearing, the Waltons offered various

       explanations for their communication and filing failures. Ronald claimed that

       he had received the request for admissions and had typed out and sent

       responses to Cangany’s counsel. Neither Cangany nor his counsel received any

       such responses. When asked why he did not attach any of the alleged responses

       to his motion to strike, Ronald explained that his computer crashed and that he

       therefore could not provide any copies to verify his assertions. 4 Tr. Vol. 2 at 10.

       Debora denied ever having been served with the letter and accompanying

       request for admissions. She explained to the trial court that her employees pick

       up her mail and that she does not allow them to sign for any certified mail. Id.

       at 12. However, this explanation did not account for the copies sent by regular

       mail, and Debora confirmed to the trial court that her mailing address was

       correct and that Cangany’s counsel had signed the certificate of service. Id. at

       14; see also id. at 16-17 (Cangany’s Counsel: “Everything we’ve sent to both

       litigants has been sent regular mail and certified.”).




       4
         Cangany’s counsel explained that she had not received any responses from Ronald to the request for
       admissions but that she believed that Ronald was referring to his responses to some initial interrogatories and
       requests for production, not the request for admissions. Tr. Vol. 2 at 11. These are not included in the record
       before us.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019                   Page 8 of 9
[14]   In sum, the Waltons failed both to respond to the requests for admissions and to

       designate any affidavits or other documents in opposition to summary

       judgment. The Waltons’ failure to respond to the requests for admissions

       resulted in the statements negating the elements of negligence being deemed

       admitted. The Waltons could have designated affidavits explaining the alleged

       service and/or computer problems, or attached copies of alleged responses in

       opposition to Cangany’s motion for summary judgment. They did not do so.

       Their unverified explanations during the hearing cannot be considered

       designated evidence. As such, they have failed to meet their burden of

       persuading us that the trial court erred in granting summary judgment in favor

       of Cangany. See Biedron, 106 N.E.3d at 1089. Accordingly, we affirm.


[15]   Affirmed.



       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-35 | September 12, 2019   Page 9 of 9
