MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                              Oct 30 2015, 9:51 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEES
Rose Keen                                                Jennifer Kalas
Chesterton, Indiana                                      Hinshaw & Culbertson LLP
                                                         Schererville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rose Keen,                                               October 30, 2015
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         64A05-1504-CT-160
        v.                                               Appeal from the Porter Superior
                                                         Court
Terminix International Company                           The Honorable Roger V.
Limited Partnership,                                     Bradford, Judge
Servicemaster Residential                                Trial Court Cause No.
Commercial Services Limited                              64D01-1008-CT-8454
Partnership, and Timothy
Slocum,
Appellees-Defendants.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015     Page 1 of 6
[1]   Rose Keen, pro se, appeals the trial court’s entry of summary judgment in favor

      of Terminix International Company Limited Partnership, Servicemaster

      Residential Commercial Services Limited Partnership, and Timothy Slocum

      (together, the “Appellees”). We dismiss Keen’s appeal.


                                             Procedural History

[2]   In August 2010, Keen filed a complaint against the Appellees alleging they

      negligently discharged pesticide or other chemicals in a home where she was

      present and that as a result she sustained personal injuries. On July 22, 2014,

      the Appellees filed a motion for summary judgment together with designated

      evidence and a memorandum in support of the motion. In August or

      September 2014, Keen filed a motion for an enlargement of time, and the court

      granted the motion, extending the time for Keen to file a response until October

      17, 2014. On October 2, 2014, Keen’s counsel filed a motion to withdraw

      appearance, and the following day the court granted the motion and granted

      Keen until November 7, 2014 to respond to the Appellees’ motion for summary

      judgment. On November 5, 2014, Keen filed a response to the summary

      judgment motion as well as another motion for enlargement of time. On

      November 13, 2014, the Appellees filed a motion for hearing, and the court

      scheduled a hearing for March 4, 2015.


[3]   On February 11, 2015, Keen filed a Motion to Delay Decision on Summary

      Judgment requesting the court to delay any decision until new interrogatories

      could be answered by all of the Appellees. On February 19, 2015, the court

      denied Keen’s motion and ordered that the hearing on Appellees’ motion for
      Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015   Page 2 of 6
      summary judgment would remain scheduled for March 4, 2015. On March 4,

      2015, the court held the scheduled summary judgment hearing. On March 18,

      2015, the court granted the Appellees’ motion for summary judgment on all

      claims asserted in Keen’s complaint. Keen now appeals.


                                                  Discussion

[4]   The Appellees argue that the appellant’s brief filed by Keen is utterly devoid of

      any reference to the record on appeal or to an appendix, that she cites no

      authority in support of her analysis and provides no cogent reasoning, “instead

      offering only two paragraphs of speculation that a former Terminix employee

      might be able to provide testimony helpful” to her, and thus that her argument

      is waived. Appellee’s Brief at 7.


[5]   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

      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


      Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015   Page 3 of 6
      parties commit flagrant violations of the Rules of Appellate Procedure we will

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


[6]   Keen 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).” Keen’s statement of the case in her appellant’s brief does not include

      any citations to the record or appendix. 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).” Keen’s statement of facts is contained on three pages and includes

      citations to a deposition in only the final paragraph of the section. Keen’s

      statement of facts does not include appropriate citation to the record on appeal

      or appendix as required by Appellate Rule 46(A)(6).


[7]   Further, Keen’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



      Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015   Page 4 of 6
      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).


[8]   Keen appears to claim that the trial court erred in denying her Motion to Delay

      Decision on Summary Judgment and states in part that no one “caught the

      mistake that the interrogatories were not signed under oath,” that “[i]t’s been

      years and it’s not fair to [her] or to Tim Slocum the Defendant or to Patrick

      Shannon, Terminix’s representative,” that “I know things now that I did not

      know years ago,” that “I’m sure that the Defendant and Terminix’s

      representative might have information now that they did not have years ago or

      even changed their way of thinking as to what they thought was correct then –

      they now see differently,” and that “[i]t’s not correct to allow these

      interrogatories as valid.” Appellant’s Brief at 13-14. Keen has failed to

      advance her arguments with cogent reasoning or citations to relevant authority


      Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015   Page 5 of 6
       and the record. Her appellant’s brief and reply brief cite only to the Federal

       Rules of Civil Procedure, and she cites no Indiana caselaw or rules. Addressing

       Keen’s claims on the merits would require us to make and advance arguments

       on her behalf. Therefore, we dismiss Keen’s appeal. See Keller, 549 N.E.2d at

       373-374 (dismissing appeal because the appellant failed to provide cogent

       argument with adequate citation of authority).


                                                   Conclusion

[9]    For the foregoing reasons, we dismiss Keen’s appeal.


[10]   Dismissed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A05-1504-CT-160| October 30, 2015   Page 6 of 6
