For those that care: Wells v Bernitt

[Diamond Joe Quimby]

In reviewing a few cases online, I saw that this opinion came out today.

Scott D. Wells v. Herman Bud Bernitt, et al.

http://www.in.gov/judiciary/opinions/pd ... 003jsk.pdf

November 10, 2010
OPINION - FOR PUBLICATION
KIRSCH, Judge
Scott D. Wells (“Wells”) appeals from the trial court‟s orders granting summary judgment in favor of Herman Bud (“Bud”) and Amy (“Amy”) Bernitt (collectively “the Bernitts”) as to Wells‟ claim against them for defamation and in favor of J.D. Maxwell (“Maxwell”), Travis Coryea (“Coryea”), Stacy Brown (“Brown”), the Indiana State Police, other unknown employees of the Indiana State Police, and the State of Indiana as to Wells‟ claims against them for negligent and intentional torts. The Bernitts cross-appeal from the trial court‟s order granting summary judgment in favor of Wells on their counterclaim alleging abuse of process and malicious prosecution.
Wells presents the following restated issue for our review:
I. Whether the trial court erred by granting summary judgment in favor of the Bernitts, Brown and Coryea.
The Bernitts cross-appeal raising the following restated issue for our review:
II. Whether the trial court erred by granting summary judgment in favor of Wells on the Bernitts‟s counterclaim alleging abuse of process.
We affirm.

[Muppethead]

I'm not meaning to be dumb here, but "who" exactly winner here.

[VietVet]

A little more detail: We agree with the trial court that he [Wells] designated evidence sufficient to establish that he had probable cause to bring his claims against the Bernitts. The existence of probable cause entitled Wells to summary judgment in his favor on the Bernitts‟ counterclaim for malicious prosecution.

Likewise, we conclude that the trial court correctly entered summary judgment in Wells‟ favor on the Bernitts‟ counterclaim for abuse of process… Likewise, we conclude that the trial court correctly entered summary judgment in Wells‟ favor on the Bernitts‟ counterclaim...

[Rorschach]

Had to read it three times, due to legalese. The decision has two parts.

Looks like they struck down BB's counterclaim. But mainly, the court struck down Wells' claims against BB and the state police. IMH and non-attorney O.


-r

[travis bickel]

Basically, they upheld the (lower) trial courts' decisions, right?

[VietVet]

Had to read it three times, due to legalese.

And didn't understand it still.

You need not explain about your secret super power.

[Rorschach]

Poor vv.

Such a sad sack.



-r

[ST]

Basically, they upheld the (lower) trial courts' decisions, right?

Pretty much. Wells lost.

I wonder why crnklecrust, czyn or just a creepin hasn't posted in this thread?

[RegalDaddy]

For those that REALLY care CAUSE No. 53A01-0910-CV-494 is moving forward.

Discussions with Federal Civil Rights Attorneys agreed with the Court of Appeals Decision in Favor of Plaintiff Scott Wells against Bernitts’ Counterclaim but that their Decision was “flagrantly erroneous” and Rules of the Court for a Civil Case abrogated with respect to Summary Judgment regarding Bud and Amy Bernitt of Bernitt Realty for Defamation and Indiana State Troopers Stacy Brown and Travis Coryea for use of Excessive Force.

The Appellate Case No. 53A01-0910-CV-494 is being reviewed.

Plaintiff Scott Wells was Charged with Operating a Vehicle While Intoxicated in a Manner that Endangered a Person, Felony Battery on a Law Enforcement Officer, Resisting Law Enforcement, Public Intoxication and Failure to Use Front Safety Belt.

Scott Wells was Acquitted of Operating a Vehicle While Intoxicated in a Manner that Endangered a Person, Battery on a Law Enforcement Officer and Resisting Law Enforcement. Charges of Public Intoxication and Failure to Use Front Safety Belt were dismissed.

Summary of Plaintiff Scott Wells’ Wins over Bud and Amy Bernitts’ Counterclaim Motion:

Trial Court Decision on 9/14/09 Case No. 53C06-0409-CT-01782 and
Appellate Court Decision 11/10/10 Case No. 53A01-0910-CV-494

Plaintiff Scott Wells’ Motion for Summary Judgment Filed on 6/24/09
Versus Bud and Amy Bernitt’s Counterclaim Motion for Malicious Prosecution Filed on 9/27/06

Chronological Case Summary
Case No. 53C06-0409-CT-01782
S WELLS V H BERNITT ET AL

TRIAL COURT

Case Type: CT - Civil Tort
Date Filed: 09/27/2004
Location: Monroe Circuit Court 6

08/17/2009 Hearing Journal Entry (Judicial Officer: Robbins, Michael A )
Plaintiff Scott Wells appears in person and by Paul Watts. Defendants appear in person by
Geoffrey Grodner. Hearing held. This matter is now under advisement, order to follow
within 30 days. jrc

09/14/2009 Order Granting Motion for Summary Judgment (Judicial Officer: Robbins, Michael A )
Memorandum and Order Granting Plaintiff's Motion for Summary Judgment issued.
Court finds against Defendants in their Counterclaim. st

APPELLATE COURT

11/10/10 The Bernitts cross-appeal raising the following restated issue for our review:
II. Whether the trial court erred by granting summary judgment in favor of Wells on the Bernitts’s counterclaim alleging abuse of process.

We affirm. (KIRSCH, Judge, RILEY, J., and BAILEY, J., concur.).

PLAINTIFF'S MSJ





CAUSE NO. 53C06-0409-CT-01782

SCOTT D. WELLS,
Plaintiff,

vs

HERMAN BUD BERNITT, individually,
AMY BERNITT, individually, J.D.
MAXWELL[/b], as an employee of the Indiana
State Police, TRAVIS CORYEA,
individually, and as an employee of the
Indiana State Police, STACY BROWN,
individually, and as an employee of the
Indiana State Police, INDIANA STATE
POLICE, OTHER UNKNOWN
EMPLOYEES OF THE INDIANA STATE
POLICE, and STATE OF INDIANA,
Defendants

MOTION FOR SUMMARY JUDGMENT

The Plaintiff, Scott D. Wells, by counsel, respectfully moves that summary judgment
be entered in his favor on the Counterclaim of Defendants, Herman and Amy Bernitt filed on
September 27, 2006 by separate defendants, Herman and Amy Bernitt, in the above captioned
matter, and in support thereof would show the Court as follows:

1. Separate Defendants, Bud Bernitt and Amy Bernitt (hereinafter, the "Bernitts"), have
counterclaimed against Plaintiff, Scott D. Wells, in this matter, alleging malicious prosecution
and abuse of process (Counterclaim of Defendants, Herman and Amy Bernitt).

2. Mr. Wells' Complaint for Damages alleges that the Bernitts falsely claimed to J.D.
Maxwell of the Indiana State Police and others, including the media, that they observed Mr.
Wells urinating in a public place, staggering, driving recklessly almost hitting pedestrians, and
attacking police officers by striking repeated blows with his fists, and attempting to take away
one of their guns.

3. Based upon the Defendants' above assertions, Mr. Wells was arrested and charged
with, among other things, Operating a Vehicle While Intoxicated in a Manner that Endangered
a Person, Felony Battery on a Law Enforcement Officer, Disorderly Conduct, Resisting Law
Enforcement, Public Intoxication and Failure to Use Front Safety Belt.

4. Prior to trial, the State amended the charge of Felony Battery on a Law Enforcement
Officer to a Class" A" misdemeanor Battery on a Law Enforcement Officer and dismissed the
charges of Public Intoxication and Failure to Use Front Safety Belt.

5. The Defendant was acquitted of the charges of Battery on a Law Enforcement Officer
and Resisting Law Enforcement...

7. Plaintiff designates the following in support of this motion:

A. Complaint for Damages filed September 27, 2004;
B. Defendants' Answer to Complaint for Damages filed November 28, 2006;
C. Counterclaim of Defendants, Herman and Amy Bernitt filed
September 27,2006;
D. Answer to Defendants' Herman and Amy Bernitt's Counterclaim filed
October 20, 2006;
E. Trial Testimony of Amy Bernitt;
F. Deposition of Amy Bernitt;
G. Trial Testimony of Bud Bernitt;
H. Deposition of Bud Bernitt;
L Affidavit of Lee Williams;
J. Affidavit of Scott Wells;
K. Memorandum of Law attached hereto...

MEMORANDUM OF LAW

...Some, if not all, of the Bernitts' reports to law enforcement are demonstrably false, as
shown by the affidavits and trial transcripts submitted herewith. ( Trial Testimony of Amy
Bemitt, p. 959, II. 8-17 and p. 961, II. 9-13; Deposition of Amy Bernitt, page 21, 1l.4-13; Trial
Testimony of Bud Bemitt, p.694, 11.1-7;Deposition of Bud Bernitt, page 29,11.12-21; Affidavit
of Lee Williams, Affidavit of Scott Wells) More importantly, the jury's verdicts in acquitting
Mr. Wells of OWI Causing Endangerment, Battery, and Resisting Law Enforcement, constitute
a rejection of the Bernitts' testimony as to virtually everything they claimed to have observed.
It is clear, therefore, that Mr. Wells had probable cause to initiate his claims against the Bernitts
in this cause as a matter of law and that his motive for doing so cannot be shown to be based
on malice...

COMPLAINT FOR DAMAGES:

This action arises from the unlawful, wrongful, and tortuous conduct by the
Defendants in creating the brutally violent false arrest of Scott D. Wells, and his wrongful
imprisonment and malicious prosecution, all done in violation of Indiana Law and
Federal Law, and in deprivation of Scott D. Wells constitutionally protected rights.

Jurisdiction

Because all of these wrongful acts were committed in Bloomington, Monroe
County, Indiana, and because they were perpetrated "under color of state law," within the
meaning of 42 V.S.C. 1983, under Indiana Law and The Indiana Rules of Civil.
Procedure, jurisdiction lies in Monroe County, State of Indiana.

Factual Background

Prior to September 27, 2002, Scott D. Wells was serving as an elected member of
the Monroe County Council, Scott D. Wells had taken positions on environmental and
development issues, which annoyed and antagonized Herman Bud Bernitt (hereinafter
known as Bud) and Amy Bernitt. For many months and on many occasions, Bud and
Amy Bernitt spoke at public meetings and wrote emails to a local political chat room,
making threatening, false, and malicious claims against Scott D. Wells. Bud and Amy
Bernitt were acquainted with J.D. Maxwell, an Indiana State Policeman, and were
actively and visibly supporting him in his campaign as the Republican Party candidate for
Sheriff in the impending election. Prior to September 27, 2002, Bud Bernitt had
attempted to have a political enemy of his investigated by the police for alleged drunk
driving, without success.

Factual Allegations

...6. Bud Bernitt telephoned J.D. Maxwell of the Indiana State Police and falsely
claimed that he had observed Scott driving erratically, urinating in the street, and
otherwise showing severely impaired driving. J.D. Maxwell had prior knowledge
of Bud and Amy Bernitt's enmity for Scott, and also had prior knowledge of Bud
Bernitt's recently frustrated efforts to have another of his political enemies
investigated for alleged drunk driving. Off-duty and from his home, after
receiving this information from Bud Bernitt, J.D. Maxwell called the Indiana
State Police Post to see who was available. Having been told that Stacy Brown
and at least one other person were available and on duty, J. D. Maxwell bypassed
the normal chain of command and chose Stacy Brown for his mission. He
instructed Brown to proceed to Sixth and Indiana to meet with Bud Bernitt.

7. Stacy Brown and Travis Coryea of the Indiana State Police proceeded to Sixth
and Indiana and spoke with Bud and Amy Bernitt, who repeated their false claims.
J.D. Maxwell; who was Stacy Brown and Travis Coryea's superior did
not share with Brown or Coryea his knowledge of the identity of the claimed
drunk driver or his knowledge of the politically and personally antagonistic
attitude of Bud and Amy Bernitt toward Scott.

8. After meeting with Bud, Stacy Brown sat in his car with his lights off in a parking
lot, watching the vehicle identified as Scott's, when Scott walked up, got in, and
pulled away while putting on his seatbelt. Brown followed Scott onto Sixth Street
going East to Indiana, observed him make a left turn onto Indiana, another left
turn onto Seventh Street, and as Scott approached Seventh and Dunn, Brown
initiated the stop. When Brown approached Scott's vehicle, Scott immediately
asked him why he had been stopped. Brown responded that he was being stopped
for a seatbelt violation. Scott told Brown that he did not believe that he was being
stopped simply for a seatbelt violation, and that he was suspicious that J. D.
Maxwell and/or Bud Bernitt had played some role in his being stopped. Officer
Brown falsely and vigorously denied Scott's claim, and as the discussion
proceeded, without just provocation, Brown and Coryea suddenly grabbed Scott
Wells' by his 'arms, forced them behind his back, struck his left leg and left knee ,
with extremely excessive force, and dropped him forward on the cement
sidewalk, face first. They then intentionally hit Scott with, great force on the left
arm and caused his right elbow to become severely abraded from abruptly falling
onto the sidewalk with the officers on top of him. Brown and Coryea kneed Scott,, ,
in the back and caused him to strike-his head on the sidewalk at least three times,
inflicting pain, injury, and creating disorientation. They struck additional blows
and inflicted other incidental injuries upon Scott, causing him to suffer great pain
and distress. Scott was subsequently handcuffed, arrested, and taken to Monroe
County Jail. He was detained in the jail until he posted bond. While at the jail he
was given no medical attention for his injuries, but later received medical
treatment at Bloomington Hospital and from other healthcare providers.

9. This infliction of excessive, unjustified, and brutal force upon Scott Wells by
Stacy Brown and Travis Coryea, within the scope of their employment as Indiana
State Police, caused Scott Wells to incur medical expenses and suffer, great pain
from his injuries, some of which are permanent in nature.

10. Based upon these events, Scott Wells, was charged with the criminal offenses of
Felony Battery on a Law Enforcement Officer, Operating a Vehicle While,
Intoxicated in a Manner that Endangered a Person, Resisting Law Enforcement,
Public Intoxication, Disorderly Conduct and Failure to use Front Safety
Seatbelt...

12. In addition to the physical injuries resulting from his being wrongfully battered by
Defendants Stacy Brown and Travis Coryea in their use of excessive and
unreasonable force in effecting his wrongful arrest, Scott Wells has suffered great
emotional distress and trauma, requiring that he to seek counseling services to
cope with the psychological impact of these events.

13. As a direct result of the Defendants' wrongful conduct, Scott Wells was
terminated from his employment as a school teacher in Owen County, and has
suffered the loss of income, retirement benefits, and other benefits to which he
would have been entitled, but for his termination.

[RegalDaddy]

From the Court Record in CAUSE NO. 53C04-0211-FD-01030

A few of the Evidentiary ISP BATTERY PICS from the Criminal Trial.

Plaintiff Scott Wells was Acquitted of Felony D Battery, Resisting Arrest, and
OWI Endangerment. Public Intoxication and Seat Belt Violation were dismissed prior to Trial.

VG6


VG4


VG8

[Curmudgeon]

Nasty looking leg

This is taking as long as the hunt for bin Laden...

[Wolverine]

Those two officers did a number on Wells. Was Wells resisting? I guess not, those must've been some pretty trumped up charges.

[VietVet]

Those two officers did a number on Wells. Was Wells resisting? I guess not, those must've been some pretty trumped up charges.

A couple of recent college grads who were passing by testified that it was an unprovoked beating.

It wasn't the first time that some of the local cops beat the tar out of somebody, and got away with it. It hasn't happened so much in the past ten years.

[RegalDaddy]

Nasty looking leg

This is taking as long as the hunt for bin Laden...

That is correct, certainly.

Part of the delay was a result of Judge Richard D. McIntyre’s untimely death where he was found dead of an “apparent suicide” - the very day his Decision was to be rendered in the Wells vs Bernitts Case. Judge McIntyre refused to Dismiss the Wells Case against the Bernitts and Indiana State Police after pleadings from Bernitts’ attorney Geoffrey Grodner and the State of Indiana (CCS).

The Herald-Times



By Marcela Creps 331-4375 | mcreps@heraldt.com
November 1, 2007

Richard D. McIntyre, a Lawrence County judge who was found dead Tuesday, died of carbon monoxide
poisoning “consistent with self-induced” poisoning, the county coroner said today...

However, the MSJ Hearing was conducted by Judge McIntyre on 8/3/07 and it revealed the Defamation Component of Wells Argument against the Bernitts: False Reporting and a plethora of ill will citing a myriad of on-line postings from the Herald-Times newspaper and a number of recorded hate filled speeches at governmental meetings directed at county councilman Scott Wells by the Bernitts of Bernitt Realty on the Plaintiff’s Designated Video.

Court Quote by Councilman Scott Wells’ Plaintiff Attorney on Bernitts’ Behavior:

“They adopted the well known natzie tactic that if you, if you repeat a
lie often enough and you publicize it enough some people begin to believe it.”

Other dilatory reasons for the Wells Case being delayed and “taking as long as the hunt for bin Laden...”

Review of this Case has revealed shortcomings by the Courts, “other” delays, and significant errors
found in the Original Transcript of the 8/3/07 MSJ Hearing by Judge McIntyre ie. 44 Significant Errors were discovered in the Original Transcript. Yet, the Amended Transcript, citing the corrections, Filed later by the Official Court Reporter Connie Crohn (Special Judge Michael A. Robbins Court), still has significant errors ie. Geoffrey Grodner, Bernitts’ Defendant Attorney, is Cited as: PLAINTIFF ARGUMENT REGARDING SUMMARY JUDGMENT ARGUMENT BY GEOFFREY M. GRODNER. That repeating error is still throughout the 58 page Transcription titled at the top of each page and vice-versa for Wells’ Attorney. Clearly in this Hearing, Wells is the Plaintiff and Bernitts are the Defendants as it is clearly spelled out on the Title Page of the AMENDED TRANSCRIPT OF PROCEEDINGS OF THE HEARING HELD ON AUGUST 3, 2007.

(PDF DOWNLOAD TIMES PARTS 1-4, APPROXIMATELY 100 SECONDS)

AUGUST 3, 2007 MSJ HEARING – JUDGE McINTYRE

SCOTT D. WELLS
Plaintiff

VS

HERMAN BUD BERNITT, AMY BERNITT,
J.D. MAXWELL, TRAVIS CORYEA,
STACY BROWN, INDIANA STATE POLICE,
OTHER UNKNOWN EMPLOYEES OF THE
INDIANA STATE POLICE, and STATE OF INDIANA
Defendant

AMENDED TRANSCRIPT OF PROCEEDINGS, of the
evidence taken in the hearing held in the above-
captioned cause on the 3rd day of August, 2007, before
the Honorable Richard D. McIntyre, Special Judge of
said Court.

CONNIE CROHN
OFFICIAL COURT REPORTER

PLAINTIFF (Corrected Title from Defendant) ARGUMENT REGARDING SUMMARY JUDGMENT
ARGUMENT BY DAVID J. COLMAN

MR. COLMAN: Your honor I think it would aide the Court if Mr. Grodner would acquaint himself with the record of this case before he addresses the Court...

Our position in this lawsuit is that the Bernitt's, Bud and Amy Bernitt, on the night of the 27th of September maliciously and falsely reported a crime to the police. Not exactly to the police but to one of their political associates who happened to be a policeman. That what they claimed to have seen was false.

The law is very clear that,that,that a qualified privilege exists. It's also very clear that it is, it is lost if the report is motivated by ill will or if there's excessive publication.

What we're going to show you today from our designation is evidence of ill will on the part of the Bernitt's. We're going to show you that prior to reporting these events the Bernitt's have launched a campaign for months where they appeared at public meetings and made false claims, knowingly false claims against Scott Wells.

I'm going to show the court that there was this chat room uh, that was operated by the local newspaper and that Bud and Amy Bernitt used that as a means to make slanderous, defamatory Comments about Mr. Wells over and over again based on three (3) particular themes that they choose. They adopted the well known natzie tactic that if you, if you repeat a lie often enough and you publicize it enough some people begin to believe it.

They assumed, Bud Bernitt had four (4) or five (5) different identities on this chat room and he would actually write to himself messages about Scott Wells hoping that other people would be sucked into it.

He'd have dialogues with Amy Bernitt under these false names in this chat room all to establish three (3) themes and this was a very organized ongoing thing. Scott Wells is above the law. Scott Wells has an illegal septic system and Scott Wells is involved in eco-terrorism, eco-terrorism involved with an organization called ELF.

Now this was ongoing and in place on the 27th. It is evidence of ill will because it was false and we've shown in the record Bud Bernitt admitting that hh never had any reason to believe that anything escaped from Scott Wells' septic system into the water supply admitting that these were false statements that he made for his own purposes. So it is relevant evidence.

It establishes ill will. It disqualifies the claim of a qualified immunity. Uh, Mr. Grodner seems to uh, not understand how that's relevant to the very defenses that he asserts in his first argument. You don't get a qualified immunity if, if, if you report a crime to the police not because you're a public servant or public spirited but because you want to use that with using false allegations to damage people that you want to damage. To damage your enemies, ill will...

We have in the record, well first of all they claim sort of incomprehensively to me that they don't know what we're claiming the defamatory claims are even included in Bud and Amy Bernitt's affidavit submitted supported the Motion for Summary Judgment.

There's a complete factual conflict. But for the record let me state absolutely what they said that we claim was defamatory. They claim that they were sitting outside the Crazy Horse Bar on the evening of the 27th of September of 2002, a claim which we first of all believed to be false. They claim that they observed Scott Wells leave that bar in an intoxicated state, stagger.

They claim that they observed him walk toward his vehicle essentially urinate either on-a railroad track or in a public place climb into his vehicle and drive a course through Bloomington where he was, where he, where he crossed Fourth (4th) Street, College and Walnut on, on Walnut sending pedestrians askew with his eckless driving and then going to a parking lot on Dunn Street. That's what they claim.

It is our proof that, that Scott Wells affidavit asserts that that's absolutely false. The affidavit of the Manager of the Crazy Horse with whom Scott Wells was conversing immediately before he left the bar which is in our Summary Judgment Motion establishes that Scott Wells was not intoxicated when he left the Crazy Horse.

There is an affidavit from Lee Williams who, who was the organizer of the Lotus Music Festival which establishes that the route that the Bernitt's claim they followed Scott Wells where he endangered other people was closed to the public that night... and the Bernitts’ could not possibly have driven the route that they claim when they were observing Scott Wells almost running into pedestrians.

Those are material issues of fact at least. They're direct conflicts and they're, they're claims that we claim and will prove are false and defamatory and they are made with actual, actual malice because they could not be made inadvertently.

There's no way the Bernitt's could have misunderstood and claimed that they saw Scott Wells urinating in a parking lot when Ron Stanhouse who owns the bar was with him thirty (30) seconds before and he was not intoxicated. There's no way that they could have accidentally created this route that they claim he drove when it was physically impossible. So those statements if they are false have to constitute actual malice under the New York Times versus Sullivan standard...

Scott Wells based on the Bernitt's claims was charged with, with operating while intoxicated causing endangerment. He was, he was not convicted of that offense. He was charged with resisting law
enforcement first as a felony he was not convicted of that offense...

He, Scott Wells is no more limited in litigating the wrongful and false claims that the Bernitt's made concerning him urinating in public, concerning him endangering other people in his driving
then he is in, then he's precluded from litigating the other part of this 1983 action which is that he was the victim of excessive police force and physically injured. One does not preclude the other...

I would ask Mr. Grodner to, to provide a clearer citation to some case that holds that if it exists. The right to show the court part of our designation because it does I think illustrate vividly number one that the Bernitt's did make false statements number two that those statements were made with actual malice and number three that there was this ongoing campaign which, which is clear evidence of ill will which defeats the qualified privilege or the common law common interest assertion as a defense.

[ST]

Scott Wells was convicted of "driving while intoxicated and disorderly conduct" by a jury of his peers. He wasn't set up. He drove intoxicated (the jury's ruling, not mine) and was arrested for and convicted of his crime.

It's been eight years. Time to grow up, be a man and get on with life.