MEMORANDUM DECISION
Case Summary
[1] Michael Drogosz, pro se, appeals the trial courts dismissal of his small claims action. He presents four issues for our review, which we consolidate and restate as:
(1) Did Drogosz waive his claim against the Indiana Department of Correction (“IDOC”) by proceeding instead against the former IDOC Commissioner as an individual?
(2) Did the trial court abuse its discretion in granting limited discovery in a small claims action and then declining to impose sanctions against a party?
[2] We affirm.
Facts and Procedural History
[3] Drogosz is incarcerated in the Indiana State Prison. In September 2021, he filed a small claims complaint in the LaPorte Superior Court alleging correctional lieutenant Adrianne Ball damaged his television during an incident on August 23, 2020. In support, Drogosz alleged the following: Because of excessive heat in his cell caused by “malfunctioning heating duct work,” Drogosz obtained permission from Unit Team Manager Joe Schneider to position a prison-provided commercial pedestal fan to blow air directly into his cell. Appellees App. Vol. 2 at 3. The fan was in the hallway outside Drogoszs cell, but he plugged it into a surge protector inside his cell that also powered his TV and other electronics. Around 5:00 p.m., Drogosz hung a bed sheet in his cell to conceal a state of undress while using the toilet. Ball walked by and questioned Drogoszs use of a privacy curtain, stating it was against policy. When Drogosz did not remove the sheet, Ball “scream[ed]” at him and “violently” repositioned the fan so it would blow toward the hallway, declaring it should not be pointed into just one cell. Id. at 4. According to Drogosz, Balls pushing and pulling on the fan and the related movement on the power cord knocked over Drogoszs TV and caused the screen to crack. Drogosz also alleged Ball prevented him from getting the TV repaired through the prisons repair program in the ensuing months. Drogosz sought $2,500 in damages for loss of the TV (purchased for $167.82) and loss of television access for 258 days (exceeding the typical ninety-day television restriction imposed as a punitive measure).
[4] After exhausting his administrative remedies,
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Drogosz filed a notice of small claim in the trial court initially naming Ball and IDOC as defendants. However, other than the complaint and trial courts first order, the parties and the court subsequently referred to the defendants as Ball and former IDOC Commissioner Robert Carter (collectively, “Defendants”) in all filings.
[5] In January 2022, Drogosz petitioned for discovery. After the trial court ordered Drogosz to submit his proposed discovery requests, he filed thirty-three interrogatories and a forty-nine-paragraph request for admissions. Defendants objected to the discovery as irrelevant, unduly burdensome, and unnecessarily expensive. The trial court found Drogoszs “proposed discovery far exceeds the scope of discovery that is reasonable in a Small Claims lawsuit and exceeds the necessities of the case.” Appellants App. Vol. 2 at 23. The trial court thus denied all requests for admissions but approved some interrogatories and declared certain interrogatories valid requests for production. The trial court then ordered Defendants to answer the approved discovery requests.
[6] Thereafter, Drogosz moved for discovery sanctions at least three times. Drogosz first objected to Defendants’ answers as evasive or incomplete. In response, the trial court ordered Defendants to provide more thorough answers to certain interrogatories and file certain documents. After receiving the new responses, Drogosz again moved for sanctions, alleging Ball perjured herself. As a result, Ball amended one interrogatory response. Drogosz moved for sanctions a third time based on the alleged withholding or lack of production of certain documents. In a combined order, the trial court denied Drogoszs second and third motions because Defendants had by then properly supplemented their discovery responses.
[7] The case proceeded to trial by affidavit beginning February 1, 2023. After each party filed its affidavits and exhibits, the trial court entered judgment for Defendants and dismissed Drogoszs complaint.
Standard of Review
[8] Judgments in small claims actions are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). We will not set aside the factual findings or judgment entered in a bench trial unless clearly erroneous, and we give due regard to the trial courts opportunity to judge witness credibility. Ind. Trial Rule 52(A); Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). In determining whether a judgment is clearly erroneous, we do not reweigh the evidence or determine witness credibility. City of Dunkirk Water & Sewage Dept v. Hall, 657 N.E.2d 115, 116 (Ind. 1995). We consider only the evidence supporting the judgment and the reasonable inferences drawn from that evidence. Id. This “deferential standard of review is particularly important in small claims actions, where trials are ‘informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law.’ ” Id. (quoting S.C.R. 8(A)). We review questions of law de novo, just as we do in appeals from a court of general jurisdiction. Trinity Homes, 848 N.E.2d at 1068. “Similarly, where a small claims case turns solely on documentary evidence, we review de novo, just as we review summary judgment rulings and other ‘paper records.’ ” Id.
1. Drogosz waived his claim against IDOC.
[9] The trial court dismissed Drogoszs complaint because it determined Defendants had immunity under the Indiana Tort Claims Act (“ITCA”), I.C. § 34-13-3-1 et seq., and Drogosz failed to show Defendants’ actions fell within one of the ITCAs five immunity exceptions, see I.C. § 34-13-3-5(c) (2003).
[10] The ITCA shields prison officers from liability for acts undertaken in their official capacities. Smith v. Ind. Dept of Corr., 871 N.E.2d 975, 986 (Ind. Ct. App. 2007) (citing I.C. § 34-13-3-1 et seq.), trans. denied. To sue an employee personally, the plaintiff must “allege that an act or omission of the employee that causes a loss is: (1) criminal; (2) clearly outside the scope of the employees employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally.” I.C. § 34-13-3-5(c). The plaintiffs complaint “must contain a reasonable factual basis supporting the allegations.” Id. The ITCAs purpose “is to ensure that public employees can exercise their independent judgment necessary to carry out their duties without threat of harassment by litigation or threats of litigation over decisions made within the scope of their employment.” Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind. 2000) (quoting Ind. Dept of Corr. v. Stagg, 556 N.E.2d 1338, 1343 (Ind. Ct. App. 1990), trans. denied). An employees conduct that is “of the same general nature as that authorized, or incidental to the conduct authorized” is within the scope of employment. Id. (quoting Restatement (Second) Agency § 229 (1958)).
[11] On appeal, Drogosz does not challenge the trial courts judgment that Defendants were immune from suit. Drogosz instead argues he sued IDOC, not Carter individually, and therefore the trial court misconstrued his arguments about tort liability and erroneously granted IDOC individual immunity under the ITCA. He now argues IDOC was liable as an employer.
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[12] When a plaintiff suffers damages allegedly caused by the actions of a government employee acting within the scope of their employment—as Drogosz now alleges—the plaintiff may proceed only against the instrumentality of government that employed them. I.C. § 34-13-3-5(a).
[13] But Drogosz did not argue this theory to the trial court. “A party cannot change its theory and on appeal argue an issue which was not properly presented to the trial court.” Franklin Bank & Tr. Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind. 1990). Appellate review “presupposes that a litigants arguments have been raised and considered in the trial court.” Plank v. Cmty. Hosps. of Ind., 981 N.E.2d 49, 53 (Ind. 2013). Accordingly, “an argument or issue presented for the first time on appeal is waived for purposes of appellate review.” Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015).
[14] Although Drogoszs notice of small claim named Ball and IDOC as defendants, and the trial courts first order included IDOC in the caption, both parties and the trial court referred to the defendants as Ball and Carter in all other filings. Critically, Drogoszs trial affidavit stated: “Pursuant to Ind. Code 34-13-3-5(c), this lawsuit is filed against Defendants Ball and Carter.” Appellees App. Vol. 2 at 188 (emphasis added). Drogosz then argued Balls actions fell outside the scope of her employment, and presented evidence, argument, and legal citations for each of the five immunity exceptions. See id. at 190–95. In Drogoszs sixth argument, he questioned Balls narrative of events and credibility. The thrust of Drogoszs argument was that Balls actions fell outside the scope of her employment, subjecting her to personal liability. Because he did not argue to the trial court IDOC was liable as Balls employer, Drogosz waived this argument for appellate review.
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2. The trial court did not abuse its discretion in granting and managing Drogoszs discovery request.
[15] Drogosz contends the trial court abused its discretion by declining Drogoszs request for depositions and failing to enforce its discovery order. “Our review of discovery matters is limited to determining whether the trial court abused its discretion.” Bridgestone Ams. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind. 2007). An abuse of discretion occurs if the trial courts decision is clearly against the logic and effect of the facts and circumstances before it, or the court has misinterpreted the law. Id.
[16] Drogosz petitioned to depose certain witnesses, including Ball and Schneider (who allegedly authorized the fan to blow directly into Drogoszs cell). He contends he needed to depose them to determine whether Balls actions fell outside the scope of her employment. But by Drogoszs account, “[a]ll parties agreed” to proceed with interrogatories in lieu of depositions at a January 2022 discovery hearing. Appellants Br. at 7.
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The trial court granted Drogoszs petition in part, permitting certain interrogatories and requests for production.
[17] Drogosz now complains this was an error because the trial court was “under no obligation to exclude depositions[.]” Id. at 9. But neither was the trial court obligated to allow them. Small claims trials “shall be informal” and generally “shall not be bound by the statutory provisions or rules of practice, procedure, pleadings or evidence[.]” S.C.R. 8(A).
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In keeping with this objective, discovery in small claims actions is limited as follows:
Discovery may be had in a manner generally pursuant to the rules governing any other civil action, but only upon the approval of the court and under such limitations as may be specified. The court should grant discovery only upon notice and good cause shown and should limit such action to the necessities of the case.
S.C.R. 6. Here, the trial court permitted Drogosz to obtain information about the scope of Balls duties through interrogatories and other documents. Considering the facts and circumstances of this case, the trial court did not abuse its discretion by denying Drogoszs requests for depositions.
[18] Drogosz also argues the trial court erred by refusing depositions because Ball provided evasive or otherwise unsatisfactory answers to the interrogatories. His argument boils down to a complaint that Ball did not provide the answers he wanted. For example, as to whether Ball was aware Schneider authorized the fans placement, Ball responded, “No. Generally, fans are allowed in the facility but may not be pointed directly in to [sic] one offenders cell.” Appellants App. Vol. 2 at 26. Drogosz believes this answer was evasive, but in fact the answer “No” was direct. That Drogosz may disbelieve or disagree with Balls interrogatory responses does not mean the trial court abused its discretion in denying Drogoszs request for depositions.
[19] Finally, Drogosz complains the trial court failed to properly enforce its discovery orders. He argues the parties’ agreement to proceed with interrogatories in lieu of depositions was “contingent upon the Defendants’ good faith participation” and the trial court should have sanctioned Ball for “evasive answers to Interrogatories and perjury[.]” Appellants Br. at 11. Our review of the record shows the trial court gave due regard to each of Drogoszs motions for sanctions. On one occasion, the trial court ordered Defendants to produce more thorough and complete answers and certain documents. And because of Drogoszs second motion, Ball amended one of her interrogatory responses, admitting she had “conflat[ed]” two incidents involving fans and then clarifying her response. Appellants App. Vol. 2 at 64. Because Defendants amended or supplemented their responses due to Drogoszs motions and the trial courts orders, we discern no abuse of discretion in the trial courts enforcement of its discovery orders.
Conclusion
[20] Drogosz waived his claim against IDOC. The trial court did not abuse its discretion with respect to discovery matters.
[21] Affirmed.
FOOTNOTES
1
. See Ind. Code § 34-13-3-3(a)(16) (2016); I.C. § 34-13-3-7 (1998) (requiring an offender to first file an administrative claim with IDOC within 180 days to recover compensation for the loss of personal property alleged to have occurred during the offenders confinement as a result of an act or omission of the department or any of its agents, former officers, employees, or contractors).
2
. Drogoszs statement of the issue is the “trial court erred by not holding Defendant IDOC liable as [an] employer, in accordance with vertical stare decisis.” Appellants Br. at 6. “Vertical stare decisis” is the “doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction.” Stare Decisis, Blacks Law Dictionary (12th ed. 2024). Likely, Drogosz means the theories of respondeat superior or vicarious liability, but we hold pro se litigants to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). This means pro se litigants must follow the established rules of procedure and be prepared to accept the consequences of their failure to do so, including waiver for failure to present cogent argument on appeal. Id. at 983–84. Our appellate rules therefore prevent us from becoming Drogoszs advocate by addressing arguments presumed but not cogently presented. Id. at 984 (“We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.”) (citation and quotation marks omitted).
3
. In their trial response, Defendants argued the trial court should dismiss the claim against Carter because Drogoszs affidavit alleged no wrongdoing by him. In rebuttal, Drogosz cited Cox v. Evansville Police Dept, 107 N.E.3d 453 (Ind. 2018), quoting extensively from its scope-of-employment liability discussion. See Appellants App. Vol. 2 at 105–06 (quoting Cox, 107 N.E.3d at 461–62). But even there, Drogosz stopped short of arguing liability attached to IDOC as an employer, as he does now on appeal. Drogosz refers to “Defendant Carter” in this section of his rebuttal. Id. at 106. In any case, Defendants did not have an opportunity to respond in the trial court to any arguments based on respondeat superior. The rule that a party may not change its theory on appeal is rooted in the notion of fairness, which requires the opposing party to have some notice an issue is before the court. See, e.g., Pardue v. Smith, 875 N.E.2d 285, 289–90 (Ind. Ct. App. 2007).
4
. A transcript of this hearing is not part of the appellate record.
5
. There are two exceptions to the general rule—the provisions and rules relating to privileged communications and offers of compromise—but neither are relevant here. See S.C.R. 8(A).
Memorandum Decision by Judge Kenworthy
Judges May and Vaidik concur.
May, J., and Vaidik, J., concur.