Opinion
24A-SC-264
11-20-2024
Harrison Firebaugh, Appellant-Plaintiff v. Kenneth Wilde, Jody Wilde, and Elizabeth Wilde Gestner, Appellees-Defendants
PRO SE APPELLANT Harrison Firebaugh Greenwood, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Johnson Superior Court The Honorable Brandi Foster Kirkendall, Magistrate Trial Court Cause No. 41D03-2310-SC-999
PRO SE APPELLANT Harrison Firebaugh Greenwood, IndianaJudges Brown and Pyle concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Harrison Firebaugh appeals following the trial court's entry of judgment in favor of Kenneth Wilde, Jody Wilde, and Elizabeth Wilde Gestner (collectively, "the Wildes"). Because the inadequate record Firebaugh presents on appeal prevents us from meaningfully reviewing his appeal, we affirm.
Facts and Procedural History
[¶2] Firebaugh purchased a house in Greenwood, Indiana, from the Wildes in 2021. The listing for the house indicated that it sat on 1.08 acres of land. The sales disclosure Firebaugh received before finalizing his purchase of the home indicated Lennar Homes had a right-of-way to install a passing blister on part of the house's property. Lennar Homes installed the passing blister during the summer of 2023.
A "passing blister" is a portion of road that sticks out on the right side of the roadway at a three-legged intersection "to relieve congestion due to left-turning vehicles." Indiana Department of Transportation Design Manual at 30-31. https://perma.cc/3P8N-LHZH
[¶3] Firebaugh filed a small claims action against the Wildes on October 2, 2023, and the trial court held a bench trial on Firebaugh's complaint on December 7, 2023. Firebaugh accused the Wildes of misrepresenting the total acreage sold to him and the total square footage of the right-of-way. He testified: "The warranty deed, listing, and closing documents explicitly stated that the property being sold comprised 1.08 acres. This information was a key factor influencing our decision to move forward with the purchase." (Tr. Vol. 2 at 5.) In support of his position, Firebaugh submitted twelve exhibits, labeled A through L. The Wildes disputed the accuracy and completeness of some of Firebaugh's exhibits and submitted two exhibits in support of their position. Kenneth Wilde testified: "I don't understand why . . . he's so stuck on the 1.08 acres, if he knew that a portion of that property was already sold, it's going to show that until a new deed is filed with the county." (Id. at 14-15.)
[¶4] On December 19, 2023, the trial court entered an order granting judgment in favor of the Wildes. The court concluded: "Plaintiff's evidence is insufficient to sustain a fraud, [sic] or misrepresentation claim against Defendants.
Furthermore, Plaintiff failed to present any evidence related to a monetary award. Based on the evidence presented the Court cannot find any of the Defendants at fault." (Notice of Appeal at 6.) Firebaugh subsequently filed a motion to correct error, and the trial court denied his motion on January 4, 2024.
Discussion and Decision
[¶5] Initially, we note two preliminary matters. First, Firebaugh proceeds pro se. We hold pro se litigants to the same standard as trained attorneys and afford them no inherent leniency because of their self-represented status. Zavodinik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Pro se litigants "are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind.Ct.App. 2016), reh'g denied. "One of the risks that a [litigant] takes when he decides to proceed pro se is that he will not know how to accomplish all of the things that an attorney would know how to accomplish." Smith v. Donahue, 907 N.E.2d 553, 555 (Ind.Ct.App. 2009), trans. denied, cert. denied, 558 U.S. 1074 (2009). Second, the Wildes have not filed a brief. "Where an appellee fails to file a brief, we do not undertake to develop arguments on that party's behalf; rather, we may reverse upon a prima facie showing of reversible error by the appellant." Ayers v. Stowers, 200 N.E.3d 480, 483 (Ind.Ct.App. 2022). "Prima facie error in this context means at first sight, on first appearance, or on the face of it." Salyer v. Wash. Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (internal quotation marks omitted). "This 'prima facie error rule' relieves this Court from the burden of controverting arguments advanced for reversal, a duty which remains with the appellee." Ayers, 200 N.E.2d at 483.
[¶6] Firebaugh appeals following the trial court's denial of his motion to correct error. We review the trial court's denial of a motion to correct error for an abuse of discretion. R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 562 (Ind.Ct.App. 2023). "An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances that were before the court." Id. "Determining whether the court abused its discretion when it denied the motion to correct error requires us to review the propriety of the trial court's underlying judgment." Brewer v. Clinton Cnty. Sheriff's Off., 206 N.E.3d 1158, 1164 (Ind.Ct.App. 2023), trans. denied. Firebaugh appeals following a negative judgment, and our standard of review regarding such claims is well-settled:
A judgment entered against a party bearing the burden of proof is a negative judgment. On appeal from a negative judgment, this Court will reverse the trial court only if the judgment is contrary to law. A judgment is contrary to law if the evidence leads to but one conclusion and the trial court reached an opposite conclusion. In determining whether the trial court's judgment is contrary to law, we will consider the evidence in the light most favorable to the prevailing party, together with all reasonable inferences therefrom. We neither reweigh the evidence nor judge the credibility of witnesses. Further, when appealing from a negative judgment, a party has a heavy burden to establish to the satisfaction of the reviewing court that there was no basis in fact for the judgment rendered.Burnell v. State, 56 N.E.3d 1146, 1149-50 (Ind. 2016) (internal citations, brackets, and quotation marks omitted).
[¶7] Firebaugh argues the evidence did not support the trial court's judgment against him. However, we cannot evaluate Firebaugh's argument because the record he presents on appeal is woefully inadequate. "It is well settled that it is the appellant's burden to provide us with an adequate record to permit meaningful appellate review." Martinez v. State, 82 N.E.3d 261, 263 (Ind.Ct.App. 2017).
Indiana Appellate Rule 50(A), which governs the content of appendices filed in civil appeals, states:
(1) Purpose. The purpose of an Appendix in civil appeals and appeals from Administrative Agencies is to present the Court
with copies of only those parts of the Record on Appeal that are necessary for the Court to decide the issues presented.
(2) Contents of Appellant's Appendix. The appellant's Appendix shall contain a table of contents and copies of the following documents if they exist:
(a) the chronological case summary for the trial court or Administrative Agency; * * * * *
(f) pleadings and other documents from the Clerk's Record in chronological order that are necessary for resolution of the issues raised on appeal[.]Indiana Appellate Rule 27 provides that the "Record on Appeal" consists of the clerk's record and all proceedings before the trial court. The Appendix may not include documents that were not presented to the trial court. See In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 57 n.6 (Ind.Ct.App. 2005) ("The appellate rules do not permit material to be included in a party's appendix that was not presented to the trial court."). Likewise, it is the appellant's duty to provide us with the materials the opposing party submitted to the trial court related to the issue being appealed. See, e.g., Webb v. City of Carmel, 101 N.E.3d 850, 856 n.3 (Ind.Ct.App. 2018) ("'[I]t is not sufficient for the appellant to include in the appendix only those documents designated by it to the trial court.' Rather, appellants should include in their appellant's appendix all documents relating to the disposition of the motion for summary judgment, including any documents that the appellee designated.") (quoting Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind.Ct.App. 2005), trans. denied).
[¶8] Here, instead of submitting the chronological case summary maintained by the trial court as required by Appellate Rule 50(A)(2)(a), Firebaugh includes in his appendix a document labeled "Appendix A: Chronological Case Summary" that essentially lays out Firebaugh's version of the facts. (App. Vol. 2 at 2-3) (emphasis in original). In addition, many of the documents Firebaugh included in his appendix are incomplete, illegible, and contain added commentary. Such alterations of the record on appeal are inappropriate. See, e.g., Herron v. State, 808 N.E.2d 172, 178 (Ind.Ct.App. 2004) (striking materials from the appellant's appendix that were not part of the trial record), trans. denied.
[¶9] Firebaugh also omits several documents the trial court reviewed and considered -- his notice of claim, his motion to correct error, and the two exhibits the Wildes submitted to contest his claim. Firebaugh's failure to include all the documents submitted and reviewed by the trial court makes it impossible for us to meaningfully review his appeal. The omitted documents are essential to evaluating the merits of Firebaugh's appeal because without being able to review all the materials that were before the trial court, we cannot conclude there was no basis in fact for the trial court's judgment. We therefore affirm the trial court. See, e.g., Page v. Page, 849 N.E.2d 769, 771 (Ind.Ct.App. 2006) (holding appellant failed to meet her burden on appeal because she did not provide an adequate record on appeal to allow for meaningful review of her claims).
Conclusion
[¶10] Because Firebaugh's record on appeal is so inadequate that we cannot meaningfully review his argument, we affirm the trial court's judgment.
[¶11] Affirmed.
Brown, J., and Pyle, J., concur.