Wright v. Elston
| Decision Date | 17 November 1998 |
| Docket Number | No. 10A01-9806-CV-209,10A01-9806-CV-209 |
| Citation | 701 N.E.2d 1227 |
| Parties | Charles W. WRIGHT and Martha S. Wright, Appellants-Plaintiffs, v. Dawn R. ELSTON, Chief Public Defender, Clark County, Indiana, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Charles W. Wright and Martha S. Wright 1 appeal the trial court's grant of summary judgment in favor of Dawn R. Elston (Elston). They raise the following issues:
1) whether the special judge had jurisdiction to hear the case;
2) whether the special judge was biased or prejudiced;
3) whether the trial court properly entered summary judgment for Elston based on the Wrights' failure to comply with the provisions of Indiana's Tort Claims Act; and
4) whether the trial court erred in finding their claim against Elston was barred by the principles of issue preclusion and res judicata. We affirm.
On January 25, 1995, Wright was charged with one count of intimidation and five counts of harassment. Wright insisted on defending himself pro se, even though Elston had been appointed his public defender. At trial, Elston was available as standby counsel to assist Wright if necessary. He did not make use of her assistance at trial. At that time, Elston was a full-time salaried employee of Clark County in her position as chief public defender.
On April 7, 1995, a jury found Wright guilty of one count of harassment and three counts of intimidation. He was sentenced on May 1, 1995. At that time, the trial court appointed Elston to assist Wright with his appeal, despite the fact that Wright had objected to Elston's appointment and had requested that a state public defender be appointed for him instead. On September 5, 1995, Elston filed a motion to withdraw as appellate counsel for Wright. Wright also moved for a change of public defender. The trial court denied both of these motions on September 28, 1995.
On September 21, 1995, the Wrights filed a pro se complaint against Elston, alleging she had committed acts of negligence and malpractice in her role as standby counsel during Wright's criminal trial. On September 29, 1995, the Wrights filed an amendment to their complaint, alleging that Elston had violated her duty as appointed appellate counsel by failing to visit Wright in prison and failing to file a motion to correct error. The regular trial court judge recused himself and sought appointment of a special judge from the Indiana Supreme Court. After the Supreme Court remanded the cause for appointment of a special judge pursuant to Ind. Trial Rule 79(H) and (I), Scott Miller was appointed to serve as special judge.
On November 17, 1995, Elston answered the Wrights' complaint against her and filed a motion to dismiss. On February 26, 1996, the Wrights submitted another amendment to their complaint generally setting forth additional factual allegations. On May 13, 1996, the Wrights filed a motion to withdraw their complaint against Elston. On November 25, 1996, the Wrights filed a motion for leave to submit another amended complaint to include additional allegations regarding Elston's actions as appellate counsel.
On December 26, 1996, the Wrights submitted a praecipe pursuant to T.R. 53.1, alleging that Judge Miller had failed to timely rule on their motions to amend. On February 28, 1997, Judge Miller notified the court that he refused to accept jurisdiction over the matter and requested that another special judge be appointed. The trial court appointed Curtis B. Eskew as special judge on March 7, 1997. However, Judge Eskew declined the appointment because of a conflict of interest stemming from a previous lawsuit by Wright against him. Roger Davis was then appointed special judge on March 17, 1997.
The Wrights submitted another amended complaint on March 18, 1997, alleging Elston had committed additional acts of malpractice in the handling of Wright's appeal by failing to file a meaningful brief. On May 5, 1997, Judge Davis appeared, assumed jurisdiction, and set all pending motions for hearing. At that time, Judge Davis was advised of the withdrawal of the case which occurred when the praecipe relating to Judge Miller's failure to rule on motions was filed with the Indiana Supreme Court. After confirming this fact with the administrator of the Supreme Court, Judge Davis announced that he had no jurisdiction and concluded the hearing.
On September 11, 1997, the Supreme Court issued an order finding that Judge Davis had jurisdiction over the case pursuant to local rule and confirming his appointment under T.R. 53.1. On October 20, 1997, Elston filed a motion for summary judgment addressed to all the claims set forth by the Wrights. On December 9, 1997, Judge Davis entered an order overruling various objections by the Wrights to his serving as special judge.
At a hearing on January 23, 1998, Judge Davis granted the Wrights' motion to dismiss their claims involving Elston's conduct as standby counsel at Wright's trial and granted their motion to file the amended complaint that Elston was negligent in failing to file an adequate appellate brief. At the conclusion of the hearing, the judge indicated he would grant Elston's motion for summary judgment. The trial court entered findings of facts and conclusions of law on January 29, 1998. 2 The Wrights instituted the instant pro se appeal.
Initially, we must note that the Wrights' numerous violations of our appellate rules made analyzing their assertions of error extremely difficult and burdensome. Their Statement of the Facts is completely devoid of references to the record, in violation of Indiana Appellate Rule 8.3(A)(5). We remind the Wrights that we are unwilling to sift through a record to locate error so as to state an appellant's case for him. Nehi Beverage Co., Inc. v. Petri, 537 N.E.2d 78, 81 (Ind.Ct.App.1989).
The Wrights' Statement of the Facts is also rife with argument, which is inappropriate in that part of an appellate brief. A Statement of the Facts should be a concise narrative of the facts stated in a light most favorable to the judgment, and should not be argumentative. Id. at 82. The Statement of the Facts the Wrights offer us is comprised mostly of self-serving argument and is clearly not intended to be a vehicle for informing this court.
The Wrights' Statement of the Case is also defective. Most notably, it does not include a verbatim statement of the trial court's judgment as required by Appellate Rule 8.3(A)(4). Rather, it includes only an uncited oral order which the Wrights purport was made by the Special Judge. The Wrights nowhere acknowledge that they altered or edited the trial judgment.
On those occasions in the argument section of their brief where the Wrights refer us to legal authority to support their arguments, they do not favor us with pinpoint citations to help us determine where, within a decision, support for their contentions may be found, or even whether support can be found in that decision at all. In fact, there is but a single pinpoint citation to be found in the Wrights' argument section. We direct the Wrights to Appellate Rule 8.2(B)(1), which states that citations to cases in briefs should follow the format put forth in the current edition of a Uniform System of Citation (Bluebook). When referring to specific material within a source, a citation should include both the page on which the source begins and the page on which the specific material appears. Uniform System of Citation Rule 3.3 (16th ed.1996). As noted above, we will not, on review, sift through the record to find a basis for a party's argument. Nor will we search through the authorities cited by a party in order to try to find legal support for its position.
Finally, the arguments presented in the Wrights' brief were extremely difficult to follow. 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). When no cogent argument is presented, our consideration of the issue is waived. Quick v. State, 660 N.E.2d 598, 601 n. 4 (Ind.Ct.App.1996), reh'g denied.
We acknowledge the Wrights' right to appeal as well as their right to appeal pro se. However, we remind them that the fact they are proceeding without an attorney does not excuse them from following our appellate rules. A litigant who chooses to proceed pro se will be held to the same established rules of procedure as trained legal counsel. Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind.Ct.App.1995). We further remind the Wrights that well-reasoned arguments making proper references to the record and supported with citations to legal authority are far more persuasive to this court than rambling stream-of-consciousness assertions which rely on excessive use of bold-face type.
The Wrights' numerous violations of our appellate rules would justify our finding their arguments are completely waived. However, we prefer to decide appeals on the merits. We choose to do so in this case only to resolve this long-standing dispute.
The Wrights argue that Special Judge Davis was ineligible to serve as special judge in their case pursuant to Trial Rule 79(J)(1), which provides that any judge is eligible for appointment by a trial court as a special judge unless the judicial official has previously served as judge or special judge in the case.
We note that finding a special judge for the Wrights' case required a great deal of time, energy, and resources, primarily because of the Wrights' extensive litigation against government officials. Our Supreme Court ultimately decided that Judge Davis had jurisdiction to serve as special judge and confirmed his appointment under Trial Rule...
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