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FOR PUBLICATION
ATTORNEY PRO SE: KEVIN D. MILLER Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN D. MILLER, Appellant-Defendant, vs. CYNTHIA REINERT and ANGELA MILLER, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) ) )

No. 49A05-0502-CV-66

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick L. McCarty, Judge Cause No. 49D03-0310-CT-1815

December 27, 2005

OPINION - FOR PUBLICATION

ROBB, Judge

Kevin Miller filed a complaint alleging abuse of process, libel per se, and negligence against his ex-wife, Angela Miller, and her attorney, Cynthia Reinert. Kevin's allegations arose from post-dissolution matters between Kevin and Angela. Kevin appeals the trial court's denial of his motion for summary judgment and grant of Angela and Reinert's motion to dismiss. We affirm in part and reverse in part. Issues Kevin raises several issues for our review, which we consolidate and restate as the following dispositive issues: 1. Whether the trial court properly granted Angela and Reinert's motion to dismiss his complaint; and 2. Whether the trial court properly ordered Kevin to pay Reinert's attorney fees. Facts and Procedural History The relevant facts, as stated in a previous opinion from this court, are as follows: Kevin and Angela were married in 1982 in South Carolina while Kevin was serving on active military duty in the United States Navy. Thereafter, their son was born in June of 1984, and they moved to Indianapolis. The three of them subsequently moved to Norfolk, Virginia, because Kevin had been assigned to military duty there. In November 1987, Kevin and Angela separated. Angela moved to Moncks Corner, South Carolina, taking the parties' son with her. Kevin then began paying $318 in monthly support, without any court intervention. In 1989, Angela petitioned to dissolve the marriage and it became final on March 21 of that year in South Carolina. Recognizing that Kevin had voluntarily been paying child support directly to Angela, the dissolution court ordered that he continue to make payments in the same amount. Kevin continued paying child support each month until September 1992, because he was unable to ascertain Angela's whereabouts. The support payments had been made from Kevin's military allotment until he was discharged from the service in August 1992. According to Kevin, none of 2

Angela's family members would reveal her location to him. Kevin then remarried in 1997 and two daughters were born to that marriage. Thereafter, Kevin and his family relocated to Washington, D.C., in May 1999, where he attended law school. In January 2000, Angela sought to enforce the South Carolina support order with respect to their son. She contacted a private child support collection agency, Child Support Enforcement, Inc. (CSE), in an effort to collect the support that was owed. Kevin eventually received a demand letter from CSE along with a computation of support arrearage allegedly owed to Angela, representing a three-and-one-half-year period in which Kevin had not paid support. CSE advised Kevin that he owed child support dating back to the April 1989 dissolution. During 2000, Kevin paid Angela three separate child support payments in the form of money orders, totaling $1590, when he learned that Angela had moved to North Carolina. On June 19, 2000, Kevin filed a defamation action against Angela in the U.S. District Court of North Carolina, alleging that Angela had submitted a false publication to CSE regarding the dates and amount of alleged support arrearage that was owed. Thereafter, both parties stipulated to a voluntary dismissal of the case and Kevin received a settlement in the amount of $10,000 from CSE. The trial court ultimately dismissed the action with prejudice. On October 25, 2001, Angela filed a petition to register the South Carolina support and dissolution decree in Marion County. Angela alleged that Kevin owed back support in the amount of $34,504 plus $30,577.91 in accrued interest, thus making a total of $65,081.91 due and owing. After the order was approved, Angela filed a verified motion for sanctions for the nonpayment of child support and contempt. A hearing was conducted on June 3, 200[2], and the trial court ultimately entered an order finding Kevin in contempt for the willful non-payment of child support and determined that he was in arrears in the amount of $34,491.90. The trial court rejected Kevin's claim of laches that Angela had unreasonably delayed in enforcing the support order and that he had been prejudiced by that delay. Miller v. Miller, 790 N.E.2d 133, 134-35 (Ind. Ct. App. 2003), trans. denied. Kevin appealed to this court. Reinert represented Angela at the June 2002 hearing in the trial court and on appeal of the ensuing order. After Angela filed her Appellee's Brief, Kevin filed his Reply Brief in which he took exception to certain arguments and statements made in Angela's Brief, specifically those related to the CSE litigation and settlement. He also filed a motion to strike those portions of Angela's Brief. This court affirmed the trial court, holding that 3

laches did not bar Angela's action. Id. at 135-36. In doing so, we included in the statement of facts, as set forth above, certain information regarding the CSE lawsuit and settlement. Kevin then filed a petition for rehearing and a motion for the court to strike those statements from its opinion. Both requests were denied. Kevin's petition to transfer to the Indiana Supreme Court was also denied. Kevin thereafter initiated the instant lawsuit against Angela and Reinert alleging "Abuse of Process, Libel Per Se and Negligence . . . from [the] publication of unprivileged, false, and defamatory statements in an appellate brief to the Indiana Court of Appeals." Appellant's Appendix at 19. Kevin filed a motion for partial summary judgment on the issue of liability for his claims of abuse of process and libel per se. Angela and Reinert filed a consolidated response to Kevin's motion for partial summary judgment. They also moved for dismissal of his complaint and assessment of damages and fees. After a hearing, the trial court denied Kevin's motion for partial summary judgment and granted Angela and Reinert's motion to dismiss. The trial court also ordered Kevin to pay Reinert's attorney's fees of $8,379.69 pursuant to Reinert's request for fees. Kevin now appeals. Discussion and Decision 1 I. Dismissal of Kevin's Complaint
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We note that neither Angela nor Reinert have filed an Appellee's Brief in this matter. When an appellee fails to submit a brief in accordance with our rules, we need not undertake the burden of developing an argument for the appellee. Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985). Indiana courts have long applied a less stringent standard of review with respect to showings of reversible error when an appellee fails to file a brief. Id. Thus, we may reverse the trial court if the appellant is able to establish prima facie error. Jones v. Harner, 684 N.E.2d 560, 562 n.1 (Ind. Ct. App. 1997). In this context, "prima facie" is defined as "at first sight, on first appearance, or on the face of it." Id. (internal citations omitted). Fowler v. Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005).

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Kevin raises several arguments that under other circumstances might merit more extensive discussion. However, because of the context in which Kevin's claims arise, namely, in the course of an appeal, we need not address each of his specific points. The statements that Kevin claims are libelous, negligent, and an abuse of process were made in an appellate brief filed with this court. Statements made by the parties in pleadings and other court filings are absolutely privileged if the statements are pertinent and relevant to the litigation. American Dry Cleaning & Laundry v. State, 725 N.E.2d 96, 98 (Ind. Ct. App. 2000). The determination of whether statements made in judicial pleadings are pertinent and relevant is a question of law for the court. Trotter v. Indiana Waste Sys., Inc., 632 N.E.2d 1159, 1162 (Ind. Ct. App. 1994). The reason underlying this doctrine is that public interest in the freedom of expression by participants in judicial proceedings, uninhibited by the risk of resultant suits for defamation, is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of the individual to a legal remedy when he has been wronged. Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 997 (Ind. Ct. App. 1983) (citing 50 Am. Jur. 2d Libel & Slander

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