Wells vs Bernitts - REPLY Brief of Appellant (S. Wells)

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Wells vs Bernitts - REPLY Brief of Appellant (S. Wells)

Postby RegalDaddy » Fri Jan 28, 2011 11:33 am

Wells vs Bernitts et al – REPLY Brief of Appellant (S. Wells)
Filed 7/21/10 in Response to Bernitts’ Brief and Cross Appeal

Rules of the Court for Hearing a Plaintiff’s Civil Case have been abrogated at both Civil and Appellate levels ie. Rule 56 et al, regarding disputed, Material Issues of Fact and Designated Evidence, etc; this Case is being Reviewed again.

Federal Civil Rights Attorneys and others are looking into the matter. Re: Rule 56 et al.

Plaintiff’s Reply Brief, regarding Rule 56 et al, Page 7: “The State's analysis of Wells' Forth Amendment claim on its merits and whether the officers are entitled to qualified immunity suffers the same flaw as its analysis of the Heck bar, i.e., the State assumes that the factual statement in this Court's decision in Wells v. State is binding on this Court for the civil proceeding and preclusive of any contradictory evidence that Wells designated on summary judgment. (State's Br. At p. 15. "Wells ignores ... the proven facts that he was belligerent, yelling obscenities at the troopers, and refusing to cooperate with their efforts to place him in handcuffs." [emphasis added.]) That is not the law. None of these facts have been proved for purposes of a Rule 56 motion on the merits of Wells' claim of excessive force. On the contrary, an appellate court reviews a trial court's grant of summary judgment de novo, construing all facts and reasonable inferences in the nonmovant's favor. O'Neal v. City of Chicago, 588 F.3d 406, 409 (7th Cir. 2009). The standard is the same for an appellate court's determination of qualified immunity. This Court must review the designated evidence by asking whether, viewing the facts in the light most favorable to the plaintiff, the defendants were nonetheless entitled to qualified immunity as a matter of law. Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010).”


S. WELLS’ REPLY BRIEF & CROSS APPEAL ANSWER TO BERNITTS ET AL,



(PDF DOWNLOAD TIME APPROXIMATELY 100 SECONDS)

SCOTT D. WELLS,
Appellant/ Plaintiff

V.

HERMAN BUD BERNITT, individually,
AMY BERNITT, individually, J.D.
MAXWELL, 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,
Appellees/ Defendants

The Honorable Michael A.
Robbins, Special Judge

I. WELLS FEDERAL CLAIMS ARE NOT HECK BARRED.

A. In its recitation of the facts the State ignores the summary judgment standard.

In its recitation of the facts, the State takes its version of the events entirely from this Court's statement of facts in Wells' appeal of his criminal convictions, v Wells v. State, 848 N.E.2d 1133 (Ind. Ct. App. 2006). When this Court wrote that statement of facts it recognized that it was not writing a neutral summary of the evidence but rather deliberately tilting its statement to "reflect the evidence in a light most favorable to the convictions." Id. at 1139. This was the appropriate standard for analyzing conflicting evidence in a criminal appeal. Barnes v. State, 925 N.E.2d 420,426 (Ind. Ct. App. 2010). But it is a completely inappropriate standard for reviewing a grant of summary judgment in a civil case. Rather, in the case at bar the opposite standard applies. On appeal from a summary judgment, an appellate court must determine whether the evidence that the parties designated to the trial court presents a genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law, construing all factual inferences in the nonmoving party's favor and resolving all doubts as to the existence of a material issue against the moving party. Ind. Trial. R. 56(C); Bules v. Marshall County, 920 N.E.2d 247,250 (Ind. 2010).

In opposition to summary judgment Wells designated considerable evidence that he cooperated with the police officers and did not fight with them. Unlike in his criminal appeal, this Court must now construe that evidence liberally in the light most favorable to Wells and accept his assertions as true.

B. Heck bars a plaintiff from contradicting his conviction, not the Defendants' version of the facts.

That the State draws it facts entirely from Wells' criminal appeal sheds light on how its argument is fundamentally flawed. The State wishes to treat all the facts described in Wells v. State as preclusive and binding on his federal claims. (State's Br., p. 12, "Wells disputes many of the facts established in his criminal proceeding" [emphasis added].) In fact, Heck v. Humphrey, 512 U.S. 744 (1994) does not mean that all the prosecutors' assertions in a criminal case, even those against which the criminal defendant provided contradictory evidence, are treated as established for purposes of a subsequent civil suit. In Evans v. Pokson, 603 F.3d 362, 364 (7th Cir. 2010) the court explained that a Section 1983 plaintiff who has been convicted is not required to accept the defendant officers' version of the facts. A plaintiff "need not repudiate his allegation that he did nothing wrong in order to maintain that he was the victim of excessive force." Heck prevents such a person from prevailing in the Section 1983 action on a position incompatible with the conviction, but the plaintiff need not adopt the defendants' view of what occurred in order to contest the degree of force used.Id.

What Heck requires the courts to do is to analyze the relationship between the plaintiff's § 1983 claim and the charge on which he was convicted. VanGuilder v. Baker, 435 F.3d 689, 691 (7th Cir. 2006). The court is bound only by what the plaintiff was actually convicted of, not the other charges. Id. at n.1. A court "must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ...." Id. at 691 (quoting Heck at 487.)

In the case at bar, Wells claims that the officers violated his rights under the Fourth Amendment by seizing him with excessive force, i.e. that the degree of force Brown and Coryea used on him was unreasonable in relation to what was actually necessary to effect his arrest. Wells was convicted of Operating a Motor Vehicle While Intoxicated Without Endangerment and of Disorderly Conduct. The State does not suggest, nor can it, that Wells' claim of excessive force is incompatible with his conviction for OWI. Wells never denied that he drank one beer at the Crazy Horse Tavern and then drove away in his car. A judgment in favor of Wells' on the excessive force claim would not impugn his OWI conviction in any way. The State does argue that Wells' excessive force claim is incompatible with his conviction for Disorderly Conduct. This argument is erroneous. The elements of Disorderly Conduct are as follows:

Disorderly conduct:

Sec. 3. (a) A person who recklessly, knowingly, or
intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so
after being asked to stop; or
(3) disrupts a lawful assembly of persons;
commits disorderly conduct, a Class B misdemeanor.
Ind. Code § 35-45-1-3

A reading of the statute makes clear that Wells' claim of excessive force, if successful, would not necessarily imply the invalidity of his conviction of Disorderly Conduct. No one has ever suggested that Wells disrupted a lawful assembly. Nor has it been established that he engaged in fighting or tumultuous conduct. Wells was stopped for a seatbelt violation. Importantly, he was acquitted of Battery on a Police Officer and of Resisting Arrest. That leaves subsection (2), making unreasonable noise. In fact, this conviction corresponds to what the officers claim Wells was doing at the moment they used physical force-i.e. that Wells was shouting profanities at them. (State's Br., p. 8.)

That Wells shouted profanities at the officers or made some other unreasonable noise even after being asked to stop must be treated as established for purposes of analyzing whether there is a Heck bar. This fact, however, is in no way contradicted by Wells' claim that the officers used unreasonable force to effect his arrest, causing him permanent injuries. Wells claims that "without just provocation, Brown and Coryea suddenly grabbed Scott Wells by the 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." Complaint, paragraph 8. The gravamen of Wells' Section 1983 claim is that the officers' takedown was an unreasonable response to Wells' actions. This claim is consistent with a conviction for disorderly conduct based on shouting profanities at the officers. Were he to prevail on that claim, the judgment would not necessarily invalidate his conviction. The Heck bar therefore does not apply.

In VanGuilder the Seventh Circuit observed as follows:

Were we to uphold the application of Heck in this case, it would imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages. Put another way, police subduing a suspect could use as much force as they wanted-and be shielded from accountability under civil law-as long as the prosecutor could get the plaintiff convicted on a charge of resisting. This would open the door to undesirable behavior and gut a large share of the protections provided by § 1983.

VanGuilder at 692.

The same reasoning applies in the case at bar. Simply substitute resisting law enforcement for disorderly conduct and the cases are the same. The Seventh Circuit was not persuaded by the officer's reasoning under similar circumstances and this Court should not be persuaded by the State's identical argument. Plaintiffs claim of excessive force is not Heck bared by his conviction of Disorderly Conduct and the judgment of the trial court must
be reversed.

C. Viewing the facts most favorable to Wells, the officers' acts were objectively unreasonable and they are not entitled to qualified immunity.

The State's analysis of Wells' Forth Amendment claim on its merits and whether the officers are entitled to qualified immunity suffers the same flaw as its analysis of the Heck bar, i.e., the State assumes that the factual statement in this Court's decision in Wells v. State is binding on this Court for the civil proceeding and preclusive of any contradictory evidence that Wells designated on summary judgment. (State's Br. At p. 15. "Wells ignores ... the proven facts that he was belligerent, yelling obscenities at the troopers, and refusing to cooperate with their efforts to place him in handcuffs." [emphasis added.]) That is not the law. None of these facts have been proved for purposes of a Rule 56 motion on the merits of Wells' claim of excessive force. On the contrary, an appellate court reviews a trial court's grant of summary judgment de novo, construing all facts and reasonable inferences in the nonmovant's favor. O'Neal v. City of Chicago, 588 F.3d 406, 409 (7th Cir. 2009). The standard is the same for an appellate court's determination of qualified immunity. This Court must review the designated evidence by asking whether, viewing the facts in the light most favorable to the plaintiff, the defendants were nonetheless entitled to qualified immunity as a matter of law. Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010).

With this standard in mind, it is clear that summary judgment in favor of the troopers is inappropriate. Wells designated in addition to his own testimony the testimony of four independent witnesses who testified that at the time of the take down Wells was conversing with the officers and did not make any threatening gestures or pose a threat to anyone. One witness, Michael Tanoury, testified that Wells "was grabbed and thrown down" and the take down was so violent that he "expected drugs or a pound of heroin to be found in the car." (R2. 118.) Although the officers describe Wells as belligerent and refusing to be placed in handcuffs, this Court must resolve conflicting evidence in Wells' favor. The Court must therefore accept, for purposes of Rule 56, Wells' testimony that he never refused to be handcuffed because the officers never even asked him to present his hands for handcuffing, but rather initiated the take down unprovoked. (R2. 113-120.)

Under these facts the officers' response-slamming Wells face down into the sidewalk with sufficient force and to cause other severe injuries to his left knee and ankle-was excessive. When assessing whether a constitutional violation has occurred, "[t]he Fourth Amendment inquiry is one of 'objective reasonableness' under the circumstances." To determine whether the force used to effect a particular seizure is reasonable, courts balance the nature and quality of the intrusion on the individual's rights against the "countervailing governmental interests at stake." Estate of Escobedo at 780 (quoting Graham v. Connor, 490 U.S. 386, 399 (1989)). In the end, the excessive force inquiry "looks to whether the force used to seize the suspect was excessive in relation to the danger he posed-to the community or to the arresting officers if left unattended." Estate of Escobedo at 780; see also Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.1993) (finding that the amount of force that is constitutionally permitted to execute a seizure decreases with the threat of danger posed by the individual being seized).

Scott Wells posed no danger to the officers or anyone else. Under the facts as the Court must accept them for purposes of Rule 56, Wells was not threatening the officers or actively or passively resisting their attempts to handcuff him. Under these circumstances there was simply no reason to slam him into the pavement. Even if this Court were to assume that Wells was disorderly by shouting profanities at the officers (which it is not required to assume in its analysis of the merits), this would not justify the degree of force Brown and Coryea used on Wells because Wells posed no threat to the officers or the community if left unattended. The same analysis obtains for purposes of qualified immunity. It is clearly established law that in the absence of a threat to the officers or the community, policemen may use at most incidental force to effect an arrest. See Estate of Starks, supra. Brown and Coryea should have know that Wells conduct, consisting of at worst shouting some profanities, did not justify slamming him face down into the sidewalk and they are not entitled to qualified immunity.

II. THE BERNITTS DEFAMED WELLS IN ORDER TO DESTROY A POLITICAL ENEMY.

A. The Bernitts simply ignore both their defamatory statements and their prior relationship with Wells and with J.D. Maxwell.

The Bernitts present themselves completely differently in their answer to Wells' arguments about defamation than they do in their cross appeal on malicious prosecution and abuse of process. In their argument that they did not defame Wells when they called State Trooper J.D. Maxwell to say that they saw Wells leaving a bar, they present themselves as wholly disinterested citizens with no motive other than removing a drunk driver from the streets. In their argument about defamation, the Bernitts mention no prior relationship with either Wells or Maxwell. A judge reading this section only might assume that the Bernitts were not previously acquainted with either one.

In their Cross Appeal seeking reinstatement of their claims for malicious prosecution and abuse of process, however, the Bernitts suddenly find it relevant that they were engaged in a "feud" with Wells which was ongoing for a period "spanning more than seven (7) years." (Bernitts' Br. at 17.) In remarkable chutzpah, the Bernitts describe the "feud" as one Wells had with them. In reality of course, the "feud" consists entirely of the Bernitts viciously attacking Wells and of Wells doing nothing more than defend his reputation. The Bernitts accused Wells of arson, dumping raw sewage in Lake Monroe, selectively enforcing environmental regulations, and hypocritically violating environmental laws; in Internet chat rooms they called Wells a Fascist and associated him with terrorists.

The Court will search the record in vain to find comparable behavior by Wells toward the Bernitts. Wells' response to these calumnies has been to deny the Bernitts' untruths by taking them and their enablers to court for defamation. In one lawsuit he won a judgment of $390,000. The existence of this "feud" is the sole fact that the Bernitts rely upon in their arguments in support of their cross appeal, yet when they discuss Wells' claim of defamation, they consider the "feud" to trivial even to mention.

B. The Bernitts' evil motive defeats their claim of qualified privilege.

The Bernitts' ongoing seven-year feud with Wells defeats their claim for qualified privilege from Wells' defamation claim. The Bernitts cite Bals v.Verduco, 600 N.E.2d 1353, 1356 (Ind. 1992), finding a qualified privilege for "a person who does no more than report" suspected crimes. (Bernitts' Br. at 10.) And the Bernitts cite Holcomb v. Walter Dimmick Petroleum, Inc., 858N.E.2d 103, 106 (Ind. 2006) finding no abuse of the privilege for the store clerk who "merely reported" suspicious activity to the police. (Bernitts' Br. at 10.) In the cases cited by the Bernitts the citizen reporting the alleged crime to the police had no prior personal relationship with the accused. The case at bar is distinguishable from them in that both the citizens making the report and the policeman who received it were the accused's bitterest foes.

The Bernitts did far more than "merely report" a suspected crime. They conspired with their friend J.D. Maxwell, who was a candidate for Monroe County Sheriff, to carefully orchestrate the downfall of a political enemy. This Court has already recognized the likelihood that the Bernitts "set up" their political enemy Wells to be arrested by the Bernitts' political ally Maxwell. Wells v. State, 848 N.E.2d 1133, 1150 n.9 (Ind. Ct. App. 2006). Their evil motive for making the report defeats their claim of qualified privilege and the trial court's judgment must be reversed.
Last edited by RegalDaddy on Sat Feb 05, 2011 11:24 am, edited 2 times in total.
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Re: Wells vs Bernitts - REPLY Brief of Appellant (S. Wells)

Postby RegalDaddy » Fri Jan 28, 2011 11:39 am

Wells vs Bernitts et al – REPLY Brief of Appellant (S. Wells)
Filed 7/21/10 in Response to Bernitts’ Brief and Cross Appeal

S. WELLS’ REPLY BRIEF & CROSS APPEAL ANSWER TO BERNITTS ET AL,



(PDF DOWNLOAD TIME APPROXIMATELY 100 SECONDS)

C. The Bernitts' ill-win toward Wells is probative of whether they
made their statements with actual malice.

In their response to Wells' argument that his evidence on summary judgment proved the essential element of actual malice, the Bernitts make a 'straw man' argument and follow it up by practicing the very same deception on the "Court of which they falsely accuse Wells. First, the 'straw man.' The Bernitts treat Wells' claim of defamation as though it concerns primarily their statements to the police that Wells drove drunk. In fact, Wells recognizes that such an argument is impeded by his conviction for OWI without endangerment and therefore addresses the Bernitts' other utterances, i.e., that he staggered out of the Crazy Horse, urinated on the railroad tracks, and that when driving his car he nearly struck a group of pedestrians.

Wells designated competent evidence to refute these allegations, including Defendant-Appellee Brown's statement that he "saw no impairment" when he first encountered Wells. The Bernitts characterize these statements as Wells' "quibbles" with the police report and "incidental facts" (Bernitts' Br., p. 12, p. 15.) but those statements all concern acts which, if actually committed, constitute a crime. Whether a ommunication is defamatory is a question of law for the-court, unless the communication is susceptible to either a defamatory or non-defamatory interpretation-in which case the matter may be submitted to the jury. Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009). Any dispute over whether the Bernitts' statements were merely "quibbles" or were in fact defamatory shows, at a minimum, that there is a disputed fact which should be submitted to a jury.

Having attempted to distract the Court from the statements that Wells actual claims are defamatory, the Bernitts next falsely accuse Wells of attempting to confuse the Court about the distinction between "ill-will" and "actual malice" (Bernitts' Br., p. 12) and then go on to engage in precisely that deception themselves.

Of course, Wells in his main brief made the distinction between ill-will and actual malice perfectly clear; they are discussed in separate sections of the brief. Wells explained the distinction with appropriate citations to authority. Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d 1211, 1220 (Ind. 1978) ("While 'ill-will' is not an element of the legal definition of actual malice, it is nevertheless relevant and admissible as evidence in the determination of whether defendant possessed a state of mind highly conducive to reckless disregard of falsity.")

The Bernitts baldly assert that Wells designated no evidence of actual malice. (Bernitts' Br. at p. 13.) In doing so they ignore all the evidence cited in Well's argument on actual malice. Wells designated ample evidence that the Bernitts made their report with reckless disregard for the truth.

Wells designated evidence showing that he did not not stagger out of the Crazy Horse Tavern, urinate on the railroad tracks, or drive recklessly and nearly run over pedestrians. Wells himself testified that he did not do any of those things and other witnesses back him up. Wells offered irrefutable evidence that the route by which the Bernitts claimed to have pursued him that night was closed to vehicular traffic. Wells' evidence that the Bernitts described him doing things that did not happen or which were physically impossible is sufficient for a jury to conclude that the Bernitts made their statements in reckless disregard of the truth. This evidence of actual malice is in addition to the ill-will evidence of the Bernitts' seven-year "feud" with Wells that they have now acknowledged.

Perhaps the Bernitts do not consider Wells' evidence satisfactory because it is circumstantial. Indirect and circumstantial evidence, however, are probative of the defendant's state of mind. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446,456 (Ind.1999). If the courts did not entertain circumstantial evidence as proof of whether a defendant made a statement with high degree of awareness of its probable falsity, then the only way to prove actual malice would be an admission by the defendant that they lied.


ANSWER TO BERNITTS' CROSS APPEAL

SUMMARY OF ARGUMENT

The trial court's entry of summary judgment against the Bernitts' counterclaims for malicious prosecution and abuse of process was prober because the Bernitts designated no evidence showing that 'Wells lacked grounds to believe that they defamed him or that he acted out of some improper motive. The Bernitts designated no evidence at all showing Wells' state of mind. Even in their brief they do not state what they allege was Wells' improper motive. The trial court had no choice but to dismiss their counterclaims in light of this dearth of evidence.

ARGUMENT

I. THE BERNITTS FAILED TO SHOW THAT WELLS LACKED PROBABLE CAUSE
THAT THEY HAD DEFAMED HIM OR THAT WELLS ACTED WITH MALICE
.

In their cross appeal regarding their counterclaims, the Bernitts pretend, just as they did in their reply to Wells, that statements Wells claims to be defamatory consist of nothing more then their assertion that Wells drove drunk. The Bernitts ignore Wells' argument that they defamed him by stating that he staggered out of the Crazy Horse Tavern, urinated on railroad tracks, and drove recklessly and nearly ran over pedestrians. Because Wells had probable cause to believe the Bernitts defamed him with these statements, and because the Bernitts designated no evidence to show that Wells acted with malice, the trial court's entry of summary judgment on the Bernitts' counterclaim for malicious prosecution was proper.

Malicious prosecution consists of five elements: prosecution, without probable cause, with malice, termination in favor of the original defendant, and damage to the defendant. Kho v. Pennington, 875N.E.2d 208, 217 (Ind. 2007 (Sheppard, C.J., concurring). The Bernitts' counterclaim fails for lack of two of these elements-absence of probable cause, and malice.

A. Probable cause exists to believe that the Bernitts defamed Wells.

The Bernitts told the police, among other things, that Wells staggered out of the Crazy Horse Tavern, urinated on railroad tracks, and drove recklessly and nearly ran over pedestrians. If true, all of these acts would be crimes. In their handwritten voluntary statements to the police, the Bernitts also stated that Wells was aggressively "fighting and resisting" Brown and Coryea, yet wells was acquitted of those charges. (R. 66-68.) A "defamatory communication" is one that tends so to harm the reputation of another as to lower him in estimation of the community or to deter a third person from associating or dealing with him. Newman v. Jewish Community Center Association of Indianapolis, 875 N.E.2d 729, 735 (Ind. Ct. App. 2007). Clearly the accusation of these crimes would tend to harm Wells' reputation in the community.

Wells also designated substantial evidence showing that these statements are false and that the Bernitts made them with reckless disregard for the truth because these events did not occur or were physically impossible. Wells emphatically denies that he staggered out of the Crazy Horse, urinated on the railroad tracks, or drove so erratically as to nearly run over pedestrians. (R. 51.) His assertion is supported at least in part by independent witness Ronald Stanhouse's testimony that Wells was not impaired at the time he left the Crazy Horse (R. 55-56.), and Kiernan Casey's testimony that Wells was not driving erratically when Brown effected the traffic stop (R2. 128.)

"To show that probable cause exists for bringing the [civil] action it must be shown not only that the defendant believed certain facts to be true but that he made an inquiry and investigation to determine the truth of those facts which a man of prudence and caution would make under like circumstances." Peoples Bank & Trust Co. v. Stock, 403 N.E.2d 1077, 1083 (Ind. 1980). Wells not only believed the above facts, he conducted a reasonable investigation-finding witnesses and obtaining affidavits to support his case. He made a reasonable inquiry to determine the truth of the facts he alleged and acted with probable cause.

Thus one essential element of the Bernitts' claim of malicious prosecution, i.e., the absence of probable cause, is missing and entry of summary judgment against the Bernitts on that claim was proper.

B. The Bernitts designated no evidence that Wells acted with malice.

"Malice" in the context of malicious prosecution, is merely "the doing of a wrongful act intentionally and without just cause or excuse therefor." Kho v. Pennington, 875 N.E.2d 208, 217 (Ind. 2007)(quoting 19 INDIANA LAW ENCYCLOPEDIA, MALICIOUS PROSECUTION § 17.) Personal hatred or revenge may be probative of malice, but it is not a necessary element of it, and the law permits a finding of this malice as either express or implied. Id. The Bernitts have designated no evidence of Wells' malice. For all the reasons shown in subsection A above, Wells filed his Complaint with probable cause to believe that the Bernitts defamed him.

Nor have the Bernitts designated evidence to show that Wells acted out of personal hatred or revenge. In a great twist of irony, the Bernitts argue that malice is shown by Wells' "ongoing feud with the Bernitts spanning more than seven (7) years." (Bernitts' Br., p. 17.) Yet the Bernitts offer no details whatsoever about how Wells feuded with them.

In reality, this "feud" consists entirely of the Bernitts attacking Wells with vicious, personal insults and Wells doing nothing more than denying the truth of their statements about him. In the 2001-2002 period Bud Bernitt attended Monroe County Council and Plan Commission meetings where he accused Wells of dumping hazardous waste into Lake Monroe and violating environmental regulations, and insulted Wells in highly personal terms. 1. (R2. 30-49.)

[1. A video recording of Bud Bemitt's speeches at these meetings is attached to the Appendix. The undersigned counsel urges the Court to listen to these speeches because the emotion with which Bud addresses Wells does not readily translate into print.]

The Bernitts relentlessly attacked Wells in chat rooms maintained by the Bloomington Herald-Times (R. 75-122.) In one post Bud Bernitt called Wells and his friends "fascist ecoterrorist thugs" and predicted that Wells would soon be in jail. (R. 108-109.) In another revealing post, approximately 20 hours before Wells' arrest, Bud predicted that Wells would be "Behind Bars!" (R. 120 [emphasis in original.]) The record is devoid of evidence of comparable behavior by Wells because he never descended to their level of
ugliness.

In support of their counterclaims the Bernitts designated several pleadings from the case at bar and from a previous lawsuit for defamation that Wells filed against the Bernitts and others. In their brief the Bernitts shed no light on how the pleadings from the case at bar prove the element of malice. They do not. With regard to the lawsuit over the Pedigo Bay incident, the Bernitts appear to imply, but do not expressly state, that Wells has a history of filing frivolous defamation claims against the Bernitts and that therefore the present lawsuit should be deemed frivolous as well. That lawsuit, however, survived summary judgment and resulted in a $390,000 verdict against one of the Bernitts' co-defendants. (Indiana Jury Verdict Report, July 2009, p. 3.) Neither judge nor jury in that case considered the Pedigo Bay lawsuit frivolous.

The Bernitts failed to designate evidence of Wells' malice because such evidence does not exist. Wells acted appropriately in bringing his complaint of defamation. Because the Bernitts cannot prove the essential element of malice, the trial court correctly entered summary judgment against them on their claim of malicious prosecution and the trial court's decision should be affirmed.

II. THE BERNITTS DESIGNATED NO EVIDENCE OF AN ULTERIOR MOTIVE TO SHOW
ABUSE OF PROCESS
.

The Bernitts' counterclaim of abuse of process suffers the same defect as their claim of malicious prosecution. They designated no evidence of an ulterior motive and so are missing an essential element of their claim.

An abuse of process action requires a finding of misuse or misapplication of process for an end other than that which it was designed to accomplish. The purpose for which the process is used is the only thing of importance. National City Bank v. Shortridge, 689 N.E. 2d 1248, 1252 (Ind. 1997) As the U.S. Supreme Court noted in a case reviewing a claim brought under 42 U.S.C § 1983 by an Indiana inmate, "The gravamen of [abuse of process] is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends." Id. (quoting Heck v. Humphrey, 512 U.S. 477, 486 n.5 (199)).

In the case at bar, the Bernitts designated no evidence identifying Wells' ulterior motive for suing them for defamation. Their abuse of process claim suffers the same dearth of evidence that was fatal to their claim for malicious prosecution. Even in their brief, the Bernitts never state what they believe Wells' ulterior motive to be. They speak of "Wells' long-standing personal animosity toward the Bernitts" (Bernitts' Br., p. 20), yet they cite no evidence of Wells' animosity or how it resulted in an "extortionate perversion" of the legal process.

The Bernitts' designations consist of pleadings from this and other lawsuits with no competent evidence to shed light on Wells' state of mind. In fact, Wells' purpose in filing this lawsuit was legitimate: he seeks the aid of the Indiana courts to vindicate him against the relentless onslaught of untruths that the Bernitts have told about him and which have caused irreparable damage to his career, body, and life.

The Bernitts simply possess no evidence whatsoever that Wells used the courts for some unspecified illegitimate purpose. In the absence of such evidence, the trial court correctly entered summary judgment against them on their abuse of process claim and its decision should be affirmed.

CONCLUSION

For the foregoing reasons, the trial court's entry of summary judgment against Wells on his claims of defamation and excessive force was erroneous and should be reversed. The trial court's entry of summary judgment against the Bernitts' claims against Wells of malicious prosecution and abuse of process was correct and should be affirmed.
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