John C. Cole, Jr. v. Bruce Lemmon and Edwin Buss

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Sep 8, 2009 ... Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the ...

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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.

FILED Sep 08 2009, 9:25 am

CLERK

of the supreme court, court of appeals and tax court

APPELLANT PRO SE: JOHN C. COLE, JR. Carlisle, Indiana

IN THE COURT OF APPEALS OF INDIANA JOHN C. COLE, JR., Appellant-Plaintiff, vs. BRUCE LEMMON and EDWIN BUSS, Appellees-Defendants.

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No. 77A01-0905-CV-233

APPEAL FROM THE SULLIVAN SUPERIOR COURT The Honorable Robert E. Springer, Judge Cause No. 77D01-0903-SC-205

September 8, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION MAY, Judge

John Cole Jr. brought a small claims action against Bruce Lemmon and Edwin Buss1 after a correctional officer dropped Cole’s television and broke it while moving Cole and his property to another facility. The trial court dismissed his complaint as frivolous. We affirm. FACTS AND PROCEDURAL HISTORY Cole, an inmate at the Westville Control Unit, was told to pack his property because he was being transferred to another facility. An officer Cole identifies as “C. Travis,” who is not named as a defendant in Cole’s suit, accidentally dropped Cole’s television and broke it. Cole submitted a Notice of Tort Claim to the Attorney General and the Department of Correction and received no response. He then filed a small claims complaint in the Sullivan Superior Court naming Buss and Lemmon as defendants, but with no indication whether or how they were involved in the damage to the television. The trial court determined Cole’s claim was frivolous because it had no arguable basis in the law and did not state a claim for which relief could be granted. It dismissed the complaint with prejudice. DISCUSSION AND DECISION The trial court dismissed Cole’s claim pursuant to Ind. Code § 34-58-1-2, which provides:

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Cole does not explain in his brief who Lemmon and Buss are, or why they are the defendants in this lawsuit. Nor does anything in the record Cole submitted indicate why Lemmon and Buss were sued. The Attorney General submitted a Notice of Non-Involvement that refers to Lemmon and Buss only as “correctional employees.”

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(a) A court shall review a complaint or petition filed by an offender and shall determine if the claim may proceed. A claim may not proceed if the court determines that the claim: (1) is frivolous; (2) is not a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from liability for such relief. (b) A claim is frivolous under subsection (a)(1) if the claim: (1) is made primarily to harass a person; or (2) lacks an arguable basis either in: (A) law; or (B) fact. We review de novo a dismissal pursuant to this statute.

Smith v. Maximum

Control Facility, 850 N.E.2d 476, 479 (Ind. Ct. App. 2006). We look only to the wellpleaded facts contained in the complaint. Id. We are unable to address Cole’s allegation of error, as he has not provided cogent argument that a tort was committed or that his small claims complaint adequately so alleged.

In the argument section of his brief Cole correctly notes small claims

proceedings are less formal than those in other courts, and pleadings in small claims court need not always comply with statutory provisions or rules of pleading, citing Clark v. Richardson, 444 N.E.2d 868, 869 (Ind. Ct. App. 1983). But Cole never explains whether or how the legal authorities he cites apply to his situation. His allegation of error is therefore waived. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”).

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Failure to present a cogent argument or citation to authority results in waiver of an issue for appellate review. Cooper v. State, 854 N.E.2d 831, 842 (Ind. 2006). As Cole has presented nothing for us to review, we affirm the trial court. Affirmed. CRONE, J., and BROWN, J., concur.

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