MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before                                  Jan 17 2018, 8:39 am
any court except for the purpose of                                         CLERK
establishing the defense of res judicata,                               Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the                                       and Tax Court


case.


APPELLANT PRO SE                                     ATTORNEY FOR APPELLEE
Joseph F. Olivares                                   KOSCIUSKO COUNTY AUDITOR
Ypsilanti, Michigan                                  Chad M. Miner
                                                     Miner & Lemon, LLP
                                                     Warsaw, Indiana

                                                     ATTORNEYS FOR APPELLEE JACK
                                                     BIRCH
                                                     John C. Trimble
                                                     Meghan E. Ruesch
                                                     Lewis Wagner, LLP
                                                     Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Olivares,                                       January 17, 2018
Appellant-Plaintiff,                                   Court of Appeals Case No.
                                                       43A04-1705-CT-1158
        v.
                                                       Appeal from the Kosciusko Circuit
Kosciusko County Auditor,                              Court
Marc Olivares, and Jack Birch,                         The Honorable Michael W. Reed,
Appellees-Defendants.                                  Judge
                                                       Trial Court Cause No.
                                                       43C01-1702-CT-7




Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018          Page 1 of 10
      Brown, Judge.


[1]   Joseph F. Olivares (“Joseph”), pro se, appeals the trial court’s dismissal of his

      complaint against the Auditor of Kosciusko County (the “Auditor”), Marc J.

      Olivares (“Marc”), and Jack C. Birch (together, the “Appellees”). We dismiss

      Joseph’s appeal and remand for a determination of damages pursuant to Ind.

      Appellate Rule 66(E).


                                      Facts and Procedural History

[2]   On February 15, 2017, Joseph filed his “Complaint for Damages with

      Summons Jury Demand” against the Appellees, alleging that the Auditor

      engaged in “intentional misrepresentation in not providing [Joseph] with a

      notice of tax sale occurring on September 2016, after [Joseph] stopped a tax

      sale, after informing said Auditor that he had not been provided due process

      notice at least three months prior” and that Birch “as Estate Counsel failed to

      inform [Joseph] of said sale, on September 2017, to [Joseph’s] detriment and

      injury, to which [Joseph] has a bonafied [sic] purchaser for value,” and stating

      that “Marc J. Olivares, on August 2nd 2016, was in receipt of a tax foreclosure

      sale upon being removed as Personal Representative and elected to withhold

      said foreclosure sale from [Joseph], who was still Personal Representative at

      that point.” Appellant’s Appendix Volume 2 at 8.


[3]   According to the chronological case summary (the “CCS”), the Auditor filed a

      motion to dismiss on March 1, 2017, and Joseph filed in documents in response

      titled “Plaintiff’s Response to the Kosciusko Auditor’s Motion for Dismissal


      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 2 of 10
      and Notice of Filing Claim of Damages and Tort Claim as to 200 W Carroll St,

      Syracuse, Indiana.” The CCS also states that Marc filed a motion to dismiss as

      to the February 15, 2017 complaint on March 15, 2017, and Birch filed a

      motion to dismiss on March 28, 2017. On March 28, 2017, all three of the

      Appellees appeared before the trial court at the hearing scheduled on the

      motions filed by the Auditor and Marc, but Joseph failed to appear despite

      receiving due notice of the time, place, and purpose of the hearing. The court

      heard argument and took the issues under advisement. On March 30, 2017,

      and April 3, 2017, the Auditor and Marc, respectively, filed a proposed order in

      conformance with the March 28, 2017 proceedings, and the trial court approved

      and entered orders granting the motions to dismiss.


[4]   Joseph filed on March 29, 2017, an “Amended Verified Complaint as to

      Damages as to Jack C. Birch,”1 and on April 5, 2017, a document titled

      “Plaintiff’s Response and Motion to the Court’s Order as to March 28th 2017

      ‘Taken Under Advisement’,” to which the court noted in a CCS entry on the

      same day that the “pleading does not comport with the Trial Rules, [and] does

      not cogently alleged [sic] any legal or factual basis for any request made by the

      Plaintiff therein.” Id. at 5. On April 7, 2017, he filed a document titled

      “Plaintiff’s Motion Under Ind. Trial Rule 41(B),” and a CCS entry states:


                 Based upon the demand for relief contained in the document,
                 [Joseph’s] motion clearly is not made under Trial Rule 41(B) as



      1
          The CCS notes that Birch filed a motion to dismiss Joseph’s amended verified complaint on April 12, 2017.


      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018           Page 3 of 10
                this would not make sense. To the extent this pleading is a
                request for the Court to reconsider its prior rulings on the
                motions to dismiss, in effect a motion to correct error, Plaintiff’s
                request in this regard is denied.


      Id. at 5. In addition, the CCS notes that Joseph filed on April 7, 2017, a motion

      for leave to appeal to which the trial court directed him to the Indiana Appellate

      Rules; on April 10, 2017, a motion for waiver of fees and costs as to any appeal

      and transcripts which was denied; and, on April 17, 2017, a document titled

      “Motion Under Ind. Trial Rule 41(B) for April 20th 2017,” which was denied.

      Joseph failed to appear at the May 12, 2017 hearing on Birch’s Motion to

      Dismiss, where the trial court heard argument, granted the motion, and entered

      an order dismissing Joseph’s Complaint, Amended Verified Complaint, and all

      causes of action against Birch. Joseph now appeals.


                                                  Discussion

[5]   In his appellant’s brief, under the heading for the statement of the case, Joseph

      states:


                In sum Appellant’s statement of case is that all Appellee’s [sic]
                committed intentional misrepresentation, by Jack C. Birch’s
                ongoing representations as to being Estate Counsel, to which was
                not demonstrated by answer whatsoever as required by T.R.
                7(A), as well as the County Auditor’s failure to answer
                Appellant's complaint and amendment, as well as Marc J.
                Olivares[’]s failure to answer as to violation of I.C. §29-1-10-10(c)
                by voluntary payment of Estate taxes to which the Court was
                aware in prior unrelated Estate proceedings which were then
                transferred, to which resulted in injury in not obtaining either tax
                lien, to rehabilitate and rent pending sale, or taking the overage

      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 4 of 10
              from said sale, to injury of Appellant as both personal
              representative and legatee, and damages of $750,000.00 as to all
              Estate properties.


      Appellant’s Brief at 9-10.


[6]   The Auditor argues that Joseph waived his issues by failing to provide cogent

      legal argument. The Auditor also argues that the complaint failed to state a

      claim upon which relief may be granted as a result of its failure to demonstrate

      compliance with the Indiana Tort Claims Act and its failure to allege what

      statutory or common law duty was owed from the Auditor to Joseph regarding

      a tax sale notice, and it asserts Joseph’s appeal was not initiated in a timely

      fashion with respect to the dismissal of the case as against the Auditor. Birch

      argues that Joseph’s record contains many defects and omissions and

      misrepresents the record on appeal, that Joseph’s brief is completely void of

      cogent reasoning, that the claims and allegations in the underlying pleadings are

      completely incomprehensible and fail to allege any actual injury sustained by

      him, that the allegations that Joseph’s due process rights were violated by the

      dismissal of the Complaint and Amended Complaint with prejudice have no

      basis in law or fact, and that Birch is entitled to attorney fees and costs for

      responding to the instant appeal because it is frivolous and made in bad faith.


[7]   A pro se litigant is held to the same established rules of procedure that trained

      legal counsel are bound to follow, and the fact that a litigant proceeds pro se

      does not excuse the litigant from complying with appellate rules. Foster v.

      Adoption of Federspiel, 560 N.E.2d 691, 692 (Ind. Ct. App. 1990). Although we

      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 5 of 10
      prefer to dispose of cases on their merits, where an appellant fails to

      substantially comply with the appellate rules, then dismissal of the appeal is

      warranted. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). This

      Court has discretion to dismiss an appeal for the appellant’s failure to comply

      with the Rules of Appellate Procedure. See Miller v. Hague Ins. Agency, Inc ., 871

      N.E.2d 406, 407 (Ind. Ct. App. 2007) (“Although we will exercise our

      discretion to reach the merits when violations are comparatively minor, if the

      parties commit flagrant violations of the Rules of Appellate Procedure we will

      hold issues waived, or dismiss the appeal.”), reh’g denied. Moreover, this Court

      “will not become an advocate for a party, or address arguments that are

      inappropriate or too poorly developed or expressed to be understood.” Basic v.

      Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016) (internal quotation marks

      omitted).


[8]   Joseph has failed to comply with the requirements of the Rules. Appellate Rule

      46(A)(5) governs the statement of case and provides that “[p]age references to

      the Record on Appeal or Appendix are required in accordance with Rule

      22(C).” Appellate Rule 46(A)(6) governs the statement of facts and provides

      that “[t]he facts shall be supported by page references to the Record on Appeal

      or Appendix in accordance with Rule 22(C).” Appellate Rule 22(C) governs

      references to the record on appeal and provides that “[a]ny factual statement

      shall be supported by a citation to the volume and page where it appears in an

      Appendix, and if not contained in an Appendix, to the volume and page it

      appears in the Transcript or exhibits, e.g., Appellant’s App. Vol. II p. 5; Tr. Vol.


      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 6 of 10
      I, pp. 231-32.” To the extent Joseph’s statement of the case or statement of

      facts include citations, they are not in compliance with Rule 22(C).


[9]   Furthermore, Joseph’s claim is not supported by cogent argument or citation to

      relevant authority. Appellate Rule 46(8)(a) provides that “[t]he argument must

      contain the contentions of the appellant on the issues presented, supported by

      cogent reasoning” and that “[e]ach contention must be supported by citations to

      the authorities, statutes, and the Appendix or parts of the Record on Appeal

      relied on . . . .” Appellate Rule 46(8)(b) provides that the argument must

      include “a concise statement of the applicable standard of review” and “a brief

      statement of the procedural and substantive facts necessary for consideration of

      the issues presented on appeal, including a statement of how the issues relevant

      to the appeal were raised and resolved by any . . . trial court.” This Court has

      previously stated:


              We demand cogent argument supported with adequate citation
              to authority because it promotes impartiality in the appellate
              tribunal. A court which must search the record and make up its
              own arguments because a party has not adequately presented
              them runs the risk of becoming an advocate rather than an
              adjudicator. Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990). A
              brief should not only present the issues to be decided on appeal,
              but it should be of material assistance to the court in deciding
              those issues. Hebel v. Conrail, Inc., 475 N.E.2d 652, 659 (Ind.
              1985). On review, we will not search the record to find a basis
              for a party’s argument . . . nor will we search the authorities cited
              by a party in order to find legal support for its position.


      Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997).


      Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 7 of 10
[10]   Joseph has failed to advance his arguments with cogent reasoning or citations

       to relevant authority and the record. We find that addressing his claims on the

       merits would require us to make and advance arguments for him. Accordingly,

       we find that dismissal of this appeal is warranted. See Keller, 549 N.E.2d at 374

       (dismissing the appeal because of the appellant’s failure to provide cogent

       argument with adequate citation of authority); Basic, 58 N.E.3d 980 at 982

       (concluding that, because they violated numerous provisions of Appellate Rule

       46 including the failure to present cogent argument, the appellants waived all

       issues for appeal).


[11]   With respect to Birch’s request for appellate attorney fees, Appellate Rule 66(E)

       provides in pertinent part that this Court “may assess damages if an appeal . . .

       is frivolous or in bad faith. Damages shall be in the Court’s discretion and may

       include attorneys’ fees.” Our discretion to impose damages is limited to

       instances when “an appeal is permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797

       N.E.2d 342, 346 (Ind. Ct. App. 2003) (citing Orr v. Turco Mfg. Co., Inc., 512

       N.E.2d 151, 152 (Ind. 1987)). In addition, while Ind. Appellate Rule 66(E)

       provides this Court with discretionary authority to award damages on appeal,

       we must use extreme restraint when exercising this power because of the

       potential chilling effect upon the exercise of the right to appeal. Id. (citing Tioga

       Pines Living Ctr., Inc. v. Ind. Family & Social Serv. Admin., 760 N.E.2d 1080, 1087

       (Ind. Ct. App. 2001), aff’d on reh’g, trans. denied). Indiana appellate courts have

       classified claims for appellate attorneys’ fees into substantive and procedural


       Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 8 of 10
       bad faith claims. Id. (citing Boczar v. Meridian St. Found., 749 N.E.2d 87, 95

       (Ind. Ct. App. 2001)). To prevail on a substantive bad faith claim, the party

       must show that “the appellant’s contentions and arguments are utterly devoid

       of all plausibility.” Id. Procedural bad faith, on the other hand, occurs when a

       party flagrantly disregards the form and content requirements of the rules of

       appellate procedure, omits and misstates relevant facts appearing in the record,

       or files briefs written in a manner calculated to require the maximum

       expenditure of time both by the opposing party and the reviewing court. Id. at

       346-347. Even if the appellant’s conduct falls short of that which is “deliberate

       or by design,” procedural bad faith can still be found. Id. at 347. As observed

       above, that Joseph chose to prosecute his appeal pro se does not relieve him of

       his duty to comply with all of the rules of appellate procedure. See also Basic, 58

       N.E.3d at 986 (citing Srivastava v. Indianapolis Hebrew Congregation, Inc., 779

       N.E.2d 52, 61 (Ind. Ct. App. 2002) (“Pro se litigants are liable for attorney’s

       fees when they disregard the rules of procedure in bad faith.”), trans. denied).

       Here, Joseph was required to follow the rules of appellate procedure and failed

       to comply. In light of the lack of a developed cogent argument and the failure

       to cite to the record in accordance with Ind. Appellate Rule 22(C), we conclude

       that an award of damages, including appellate attorneys’ fees, is appropriate in

       this case.


                                                   Conclusion

[12]   For the foregoing reasons, we dismiss this appeal and remand for a

       determination of damages pursuant to Appellate Rule 66(E).

       Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 9 of 10
[13]   Dismissed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A04-1705-CT-1158| January 17, 2018   Page 10 of 10
