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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.

APPELLANT PRO SE: KENNETH E. GENTRY

ATTORNEYS FOR APPELLEES: STEVE CARTER

Bunker Hill, Indiana

Attorney General of Indiana
ELIZABETH ROGERS

Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KENNETH E. GENTRY, Appellant-Plaintiff, vs. PEN PRODUCTS, HERB NEWKIRK, FLOYD BURTON, ED JONES, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 46A04-0704-CV-225

APPEAL FROM THE LAPORTE SUPERIOR COURT The Honorable Paul J. Baldoni, Judge Cause No. 46D03-0302-PL-30

November 21, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BARNES, Judge

Case Summary Kenneth Gentry appeals the trial court's grant of summary judgment in favor of defendants Pen Products, Herb Newkirk, Floyd Burton, and Ed Jones, (collectively "Defendants") and the denial of his two motions for default judgment. Gentry also appeals the trial court's denial of his motion for change of venue from the judge. We affirm. Issues Gentry raises three issues, which we reorder and restate as: I. whether the trial court abused its discretion when it denied Gentry's motion for change of judge; whether the trial court abused its discretion when it denied Gentry's two motions for default judgment; and whether the trial court properly granted Defendants' motion for summary judgment. Facts Gentry was an inmate at the Westville Correctional Facility ("WCC"). Gentry worked at the Pen Products sign shop ("Pen") while incarcerated. His responsibilities at Pen included painting, lifting, and loading signs. Gentry is diabetic and claimed that his diabetes affected his ability to work at Pen. Gentry's complaint alleged that there was a period of time when his blood count dropped and affected his ability to complete his job

II.

III.

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duties. 1 Pen terminated Gentry on November 14, 2000. Gentry filed a classification appeal with WCC officials alleging he could not complete work at Pen because of his diabetes. He requested another placement at Pen but was not re-hired. Defendants claim Gentry was terminated for sleeping on the job, not keeping up with job duties, and for damaging equipment. On February 28, 2003, Gentry brought a pro se action against Pen Products, Floyd Burton, the shop supervisor, Ed Jones, the manager of job placement at WCC, and Herb Newkirk, the former superintendent of WCC. 2 Gentry alleged Defendants violated the Americans with Disabilities Act ("ADA") by wrongfully terminating him and discriminating against him, violated his Fourteenth Amendment rights, and created a hostile work environment. He claimed his supervisors knew about his diabetic condition, fired him because of it, and then refused to find him an alternative position. Gentry filed two motions for default judgment on September 4, 2003, and April 4, 2004. The trial court denied both motions. The attorney general appeared on behalf of Defendants on June 7, 2004. Defendants filed a motion for summary judgment on November 8, 2005. Gentry filed a response on January 17, 2006. Defendants filed their reply on January 24, 2006.

1

Gentry does not specify that his blood sugar count dropped, but considering his later references to insulin and his diabetic status, we assume he means blood sugar count when he states "blood count." Appellee's App. p. 5.

2

Gentry first brought the action in federal court in the Northern District of Indiana on September 27, 2002. Following that court's dismissal of his constitutional claims and an instruction to pursue the ADA claims in state court, Gentry re-filed the action in LaPorte County.

3

On January 25, 2006, the trial court determined Gentry's state court complaint was filed outside the statute of limitations and dismissed Gentry's action with prejudice. Gentry filed a notice of appeal on February 9, 2006. 3 On August 1, 2006, this court issued an order that the complaint was timely filed and remanded the case. On August 8, 2006, Gentry filed a motion for change of venue from the judge. The trial court denied the motion. On March 3, 2007, the trial court granted Defendants' motion for summary judgment. This appeal followed. Analysis I. Change of Venue from the Judge Gentry argues that he was entitled a change of venue from the judge and the trial court abused its discretion by denying his motion. We review a trial court's decision on a motion to change venue for an abuse of discretion. In re Guardianship of Hickman, 805 N.E.2d 808, 814 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances, or if the trial court has misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993). A party is entitled to one change of judge without specifying the reasons, if that party moves within the prescribed time limit. Ind. Tr. R. 76(B), (C). Indiana Trial Rule 76(B) provides:

3

Gentry argued that his state court complaint was timely under the Journey's Account Statute, Indiana Code Section 34-11-8-1. Defendants agreed and filed a verified motion to dismiss the appeal and remand.

4

In civil actions, where a change may be taken from the judge, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefore by a party or his attorney. Under Rule 76(C) a motion for change of venue from the judge must be filed no later than ten days after the issues are first closed on the merits, with a few exceptions. In lawsuits with multiple defendants, the issues are considered closed with the filing of the first answer. Mann v. Russell's Trailer Repair, Inc., 787 N.E.2d 922, 925 (Ind. Ct. App. 2003), trans. denied. The merits were closed on July 7, 2004, when Defendants filed an answer. The State contends that Gentry's motion for change of venue from the judge is untimely because it was not filed until nearly two years after that date. We agree. Gentry seems to contend that he is entitled to an exception under Rule 76(C)(3). However, at the time Gentry filed his motion, Rule 76(C)(3) 4 provided: [W]hen a new trial is granted, whether the result of an appeal or not, the parties thereto shall have ten days from the date the order granting the new trial is entered on the record of the trial court . . . . This court remanded Gentry's case on August 1, 2006, after his first appeal. The order provided: "This appeal is dismissed without prejudice and remanded to the trial court for further proceedings." Gentry v. Pen Products, No. 49A02-0602-CV-176, slip

4

A new version of Rule 76(C)(3) became effective January 1, 2007 and provides: [I]f the trial court or a court on appeal orders a new trial, or if a court on appeal otherwise remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial, the parties thereto shall have ten days from the date the order of the trial court is entered or the order of the court on appeal is certified.

5

op. at 2 (Ind. Ct. App. Aug. 1, 2006). The order also noted: "Appellees contend that this appeal should be dismissed without prejudice and remanded for a determination on the merits because Appellant is correct that his civil complaint was timely filed." Id. Pursuant to the order, the trial court was instructed to consider Gentry's action on the merits. The trial court would first have to consider the pending summary judgment motion. In doing so, the trial court would be considering the designated evidence and possibility holding a hearing. Still, our supreme court has held that "a summary

judgment decision is not a trial." State ex rel. Sink & Edwards, Inc. v. Hancock Superior Court, 470 N.E.2d 1320, 1322 (Ind. 1984); see also McAllister v. State, 280 N.E.2d 311, 312 (Ind. 1972) (reasoning that the setting of a hearing on a motion for summary judgment is not a `trial' within the meaning of trial rule 76(7)); Brames v. Crates, 399 N.E.2d 437, 440 (Ind. Ct. App. 1980) ("In contrast to a trial where the purpose is to try the facts and determine the preponderance of the evidence, a summary judgment proceeding is a procedure for applying the law to the facts where no factual controversy exists."). For all intents and purposes, when this court remanded Gentry's cause of action on August 1, 2006, the first note of business for the trial court was to determine the outstanding summary judgment issue. This situation did not constitute a new trial. Moreover, any further proceedings as directed by this court in August 2006, could not be considered a "new trial" because no original trial was ever conducted. Our supreme court has explained that in order for a `new trial' to exist, a first trial must have been held. "[S]ince there has been no trial in this case, the Court of Appeals opinion can not be interpreted as an order for a new trial." State ex rel. Sink & Edwards, Inc., 470 6

N.E.2d at 1322. The trial court did not abuse its discretion in denying Gentry's motion for change of venue from the judge. II. Motions for Default Judgment Gentry filed two motions for default judgment, and the trial court denied both of them. The first motion was filed on September 4, 2003, and denied the same day. The second motion was filed on April 4, 2004, and denied on April 14, 2004. At the time of these filings, no attorney had appeared on behalf of any of the defendants, and one did not appear until a few months later on June 7, 2004. The trial court has considerable discretion in granting or denying a motion for default judgment. Delphi Corp. v. Orlik, 831 N.E.2d 265, 267 (Ind. Ct. App. 2005). The trial court should use that discretion to do what is "just" in light of the unique facts of each case. Id. That discretion should be "exercised in light of the disfavor in which default judgments are held." Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 94 (Ind. Ct. App. 2002). At the time of the trial court's denials, no attorney had appeared on behalf of any of the defendants. In addition, the chronological case summary did not reveal that the Indiana Attorney General had been served or given notice of the action. Considering this situation, we hold that the trial court did not abuse its discretion in denying Gentry's motions for default judgment. III. Summary Judgment Gentry contends the trial court improperly granted Defendants' motion for summary judgment. When reviewing a trial court's grant or denial of summary judgment the standard of review is the same as the standard governing the trial court. Northern Ind. 7

Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). "Summary judgment should be granted only if the evidence designated pursuant to Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law." Id. All facts and reasonable inferences are construed in favor of the nonmovant, and we rely only on the facts designated to the trial court. Id. We carefully review a grant of summary judgment to ensure that a party was not improperly denied his or her day in court. Matteson v. Citizens Ins. Co. of America, 844 N.E.2d 188, 192 (Ind. Ct. App. 2006). We will affirm on any legal theory supported by the record if there are no genuine issues of material fact. Id. The party appealing the denial of a motion for summary judgment has the burden of persuading this court on appeal that the trial court's ruling was improper. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind. 1993). Gentry alleges Fourteenth Amendment due process and equal protection violations, which have already been adjudicated as improper and must fail as a matter of law. The district court for the Northern District of Indiana already held that Gentry could not pursue a 42 U.S.C.

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